scholarly journals Insurance-Based Investment Products: Regulatory Responses and Policy Issues

Author(s):  
Michele Siri

AbstractThe chapter aims to analyse the recent reform of the EU regulatory framework as regards insurance-based investment products (IBIPs). The current regime provided for IBIPs offers stronger protection to all customers, regardless of the channel of distribution. In line with the EU plan to provide consistent cross-sectorial investor protection across all Member States, many IDD provisions are based on the corresponding MiFID II rules, even though some differences remain and should be further elaborated in connection with the inconsistencies, overlaps and gaps in the investor protection as far as the distribution of the IBIPs is concerned. Furthermore, several Member States have exercised the discretions recognised by the IDD as regards IBIPs mainly to gold plate investor protection measures. However, such an uncoordinated approach undermines the internal market’s objectives. Therefore, the chapter advises EIOPA to use its powers to coordinate Member States’ measures and ensure transparency about National Competent Authorities’ measures in this respect.

Author(s):  
Pablo Iglesias-Rodríguez

AbstractThis article proposes that product intervention constitutes a form of residual lawmaking by ESMA that allows it to tackle aspects of investor protection not addressed by EU incomplete financial laws. Whilst product intervention may bring about certain advantages and may contribute to mitigating regulatory arbitrage problems, it constitutes a highly intrusive regulatory mechanism that raises important questions concerning: (a) ESMA’s rationale and motivations for its use; (b) its compliance with the EU constitutional framework; and (c) its adequacy for the regulation of complex financial products. This article addresses these questions through an analysis of the rationale and consequences of ESMA’s product intervention measures on binary options and contracts for differences of May 2018–July 2019, and of recent reforms of ESMA’s powers. It offers three main contributions to the existing literature. First, it contributes to the literature on administrative discretion and agencies’ rulemaking through an analysis of the political economy of ESMA’s deployment of product intervention powers and, also, of what this reveals about the relationships between ESMA and the EU Institutions, on the one side, and ESMA and National Competent Authorities, on the other. Second, it contributes to the literature on the constitutionality of EU agencies through an examination of the compliance of ESMA’s product intervention measures with EU constitutional law and requirements. Third, it examines whether product intervention constitutes an adequate mechanism to address problems pertaining to investor protection in complex financial products markets and, in doing so, it contributes to the scholarly discussion on complex financial products’ regulation.


2005 ◽  
Vol 12 (3) ◽  
pp. 227-240 ◽  
Author(s):  
Gareth Davies

This article looks at the law and policy issues surrounding the practice of charging uniform fees for higher education to home students and students coming from other EU Member States. It begins with the observation that within the EU such fees are heavily subsidised by governments and therefore amount to a financial benefit (or a disguised grant) to students. In the light of this, this article suggests that restricting that subsidy to students resident prior to their studies would be not only compatible with recent case law on non-discrimination but would also fit better with the underlying logic of free movement, which denies any right to benefits for non-economic recent migrants. Secondly, it looks at the policy, and finds that while equal fees have a number of very positive social effects, they also carry moral and economic risks. A better approach, less distorting of the market for higher education and more consistent with the wider EU approach to welfare migration, might be to require exportability of subsidies from the student's state of origin.


Author(s):  
Ferrarini Guido ◽  
Macchiavello Eugenia

This chapter explores the policy and regulatory issues generated by investment-based crowdfunding in Europe. Firstly, it argues that crowdfunding raises serious investor protection concerns, particularly when directed to retail investors. As governments try to stimulate innovation and the formation of new enterprises, a trade-off is created between investor protection and economic growth. The laws of the EU and its Member States try to solve this trade-off in different ways, as the chapter shows with reference to MiFID and the laws of the UK, France, Italy, Spain and Germany. Secondly, it shows that MiFID II, while enhancing investor protection and furthering harmonization, does not create all the conditions needed for a pan-European crowdfunding market. At the same time, MiFID II narrows the potential for exemptions under which some Member States have adopted special regimes for crowdfunding, therefore restricting the scope for an enabling approach to investment-based crowdfunding at national level.


Author(s):  
Lorenzo Gasbarri

Exceptionalist conceptualizations are grounded on the belief that certain institutions develop differently from others, and consequently, the same international regulatory framework cannot apply to all: member states are agents or third parties depending on the organization; the rules are internal or international depending on the organization; the institutional veil is characterized in degrees of transparency depending on the organization; the autonomy of the organization is a matter of degrees; the conduct of a member state acting in the institutional forum can be relevant as a matter of international law depending on the organization; organizations are very different entities depending on descriptive elements, such as their level of integration or their geographical scope. This chapter describes the historical roots of this theory and later explains why the rules are either perceived as international or as internal law depending on the organization. The theory is rebutted examining the exceptionalism of the EU and of the OSCE.


Author(s):  
Steffen Kern ◽  
Giuseppe Loiacono

This chapter reviews the fundamental workings of the EU regulatory framework and its implications for high frequency trading (HFT) and the latest findings on the market realities in the EU. Over the last decade, securities trading landscapes have undergone significant change, with the emergence of HFT being one of the most important developments in this context. At the same time, the EU has made landmark legislative advances with the aim of increasing investor protection, market order, and financial stability, and of containing risks in those areas. As the new MiFID2 legal framework takes effect, a wealth of new data and evidence will become available in coming years that will improve understanding of HFT patterns, the effectiveness of circuit breakers, and their optimal calibration.


Author(s):  
Argenton Cédric ◽  
Geradin Damien ◽  
Stephan Andreas

This chapter deals with the institutional and regulatory framework that applies to cartels in the European Union (EU), going over both the substantive and procedural rules. The key legal basis for the prosecution of cartels resides under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), as interpreted by the case law of the EU courts. Article 101 TFEU is a three-pronged provision. First, the chapter shows how Article 101(1) TFEU establishes a prohibition rule providing that any agreement between undertakings which may affect trade between Member States and which restricts competition is to be deemed incompatible with the internal market. Next, the chapter takes a look at how Article 101(2) TFEU declares that agreements deemed incompatible pursuant to Article 101(1) TFEU are null and void. The ways in which Article 101(3) TFEU embodies an exception to the default prohibition rule, which defuses the application of Article 101(1) for agreements that bring a positive net contribution to consumer welfare, is also discussed.


Stanovnistvo ◽  
2016 ◽  
Vol 54 (1) ◽  
pp. 41-63 ◽  
Author(s):  
Zoran Lutovac

This paper focuses on migration in the context of European integration which implies, on the one hand, internal integration, integration within the EU and, on the other hand, the enlargement process related to the countries that have applied to join the EU. The aim is to determine in which way the migration, especially refugee crisis in 2015, had influence on the EU, as a supranational political community, and what was the impact on Serbia which is in the process of integration into the European Union. Migrant crisis has shown that the EU has to confront many different issues including several issues of great importance for its survival and strengthening: how to influence on global processes to a greater extent instead of dealing with the consequences of the global politics of others; how to preserve and keep the values that the EU itself is founded and the values on which should be built upon further construction of the political community and, finally, weather the EU can be transformed in the direction of the United European States, in both the functional and in terms of values, or the EU will move towards deepening of Europe of concentric circles. Faced with extremely complex migration situation, Serbia does not have the appropriate institutional and regulatory framework, nor a political response to a series of complex issues in the area of migration and migration-related issues, such as asylum system, irregular migration, sustainable return of our citizens asylum seekers in EU member states, implementation of the agreement on readmission, the departure of highly educated - brain drain, migration and development, the fight against human trafficking (protection of victims, prevention, criminal prosecution of traffickers), and smuggling of migrants, issues of border management, demarcation and boundary determination (as well as the agreement that should be concluded). Some of these problems migrant crisis has made visible by encouraging coping with the need of systemic response to the flaws in the regulatory framework, in the policy concerning asylum seekers, irregular migration through the territory of Serbia, as well as in the sustainable return of our citizens, applicants for asylum in member states. If we put all this in the context of untimely planning, ineffective management of economic trends, the lack of financial support from Brussels to deal with the refugee crisis, but also in the context of the fact that the enlargement policy is aimed at meeting the Copenhagen criteria, but not on economic growth - then the fears of uncontrolled influx of migrants pose potential capital of radical and populist political options. In the relationship with Brussels, Serbia would have to fight for more under-standing regarding the state of the economy and, in general, regarding help with the costs of joining the EU, especially in case of further escalation of the migrant crisis. Serbia's image in the international arena has been changing for better because of the human attitude towards refugees and migrants who were in transit, but for the citizens of Serbia is much more important that the attitude towards them is a part of the essential changes in the society, and not juste an agile response to the crisis - i. e. what metters most is to make appropriate administrative and legal measures, to effectively manage the problems that migrant crisis put in the foreground, but primarily to change the essence of political community and to have this change of image as a result of state and society transformation towards strengthening democratic institutions, the rule of law, media freedom and developed human rights and freedoms.


2016 ◽  
Vol 18 ◽  
pp. 20-44 ◽  
Author(s):  
Miranda GEELHOED

AbstractThis article analyses the recent reform to the EU’s genetically modified organisms (GMO) regime which allows Member States to restrict the cultivation of GMO on their territory for reasons that do not relate to issues of health and safety or the environment. By allowing for national differentiation – although on legally questionable grounds – new Article 26b of Directive 2001/18/EC has been presented as a solution to overcome the impasse in GMO decision-making. However, this article finds that the reform fails to provide a solution for the EU regime’s most pressing problem, namely its disregard for scientific uncertainty and disagreement.


Author(s):  
Łukasz Chyla

The 2015 Impact Assessment Working Document evaluation has identified numerous issues which seemed to hinder the efficiency of the EU capital markets. To address those issues, the new prospectus regime was introduced by the Prospectus Regulation PR EU 2017/1129, which replaced the previous Prospectus Directive and will be directly binding and fully applicable in all EU Member States from 21 July 2019. The main aim of the PR is to ensure investor protection and market efficiency while enhancing the internal EU market for capital. In order to achieve this goal, Regulation 2017/1129 introduces a number of significant changes, in particular the form of regulation, the scope of the prospectus regime, and exemption thresholds from the prospectus obligation. It also introduces new institutions e.g. the universal registration document and completely new types of prospectuses EU growth prospectus, prospectus for secondary issuances under the proportionate disclosure regime. The aim of this article is to analyze and evaluate the chosen changes introduced by the new prospectus law. Nowe prawo prospektowe: analiza krytyczna wybranych istotnych zmianDokument roboczy Służb Komisji Europejskiej z 2015 roku wskazał wiele problemów utrudniających efektywność rynków kapitałowych UE. W celu poprawy sytuacji wprowadzono nowe prawo prospektowe, zastępując wcześniejszą dyrektywę prospektową rozporządzeniem prospektowym UE 2017/1129. Rozporządzenie będzie bezpośrednio wiążące we wszystkich państwach członkowskich UE od dnia 21 lipca 2019 roku. Jego zadaniem jest zapewnienie ochrony inwestorów i poprawa efektywności rynków a także wzmocnienie wewnętrznego rynku kapitałowego UE. W tym celu rozporządzenie wprowadza szereg istotnych zmian, w szczególności dotyczących formy regulacji, zakresu obowiązywania czy progów zwolnienia z obowiązku publikowania prospektu emisyjnego. Wprowadza również nowe instytucje np. uniwersalny dokument rejestracyjny i zupełnie nowe rodzaje prospektów emisyjnych prospekt emisyjny UE, prospekt emisyjny dla emisji wtórnych w ramach proporcjonalnego systemu obowiązków informacyjnych. Celem tego artykułu jest analiza i ocena wybranych zmian wprowadzonych przez nowe prawo prospektowe.


Author(s):  
Di Noia Carmine ◽  
Gargantini Matteo

This chapter sets out the rules regarding competent authorities, approval of the prospectus, notification, and sanctions. It analyses the regulatory framework for prospectus approval by national competent authorities (NCAs). NCAs approve prospectuses after verifying that they are complete, consistent, and comprehensible. The delegated acts supplementing the Prospectus Regulation specify the contents of the supervisory activity at a much greater level of detail than the previous regime. However, it remains to be seen whether this will suffice to ensure an actual level playing field across the Union. Indeed, NCAs might maintain different approaches during the approval process even in the presence of ESMA's coordination efforts. Next to this, Member States retain discretion on some crucial regulatory options, and the liability regimes are often uneven across Member States. All these remaining differences create space for arbitration, and make the rules on the identification of the relevant NCA all the more important. This chapter thus analyses the legal regime for the allocation of the power to approve prospectuses from two different perspectives.


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