The MiFIR and PRIIPs Product Intervention Regime: In Need of Intervention?

2020 ◽  
Vol 17 (1) ◽  
pp. 99-124
Author(s):  
Veerle Colaert
Keyword(s):  
Investor Protection ◽  
National Product ◽  
Historical Evolution ◽  
Level Playing Field ◽  
Financial Instruments ◽  
Playing Field ◽  
Governance Regime ◽  
Intervention Measures ◽  
Scope Of Application ◽  
The Eu

As from January 2018, MiFIR and the PRIIPs Regulation provide national supervisors with competences to adopt measures restricting or limiting financial activities or practices, or the marketing, distribution or sale of financial instruments, structured deposits and insurance-based investments. Moreover, these regulations give competences to the European Supervisory Authorities (ESMA, EBA and EIOPA) to coordinate and facilitate national product intervention measures in order to safeguard the level playing field. In addition, the European Supervisory Authorities can also directly prohibit or restrict the same products, activities or practices in the entire Union, albeit only temporarily.In this contribution we first offer a discussion of the historical evolution of product intervention, including an overview of national measures taken in a number of Member States before the entry into force of the MiFIR and the PRIIPs Regulation. Then we scrutinize the conditions of the MiFIR and PRIIPs product intervention regime and examine ESMA’s first product intervention measures. Finally, we take a critical look at the scope of application of the product intervention measures based on MiFIR.We conclude that the MiFIR and PRIIPs product intervention measures can be considered the keystone of the EU investor protection regime. Since a well-functioning product governance regime should make product intervention measures superfluous in the majority of circumstances, we welcome the fact that national and European authorities have shown restraint and only introduced product intervention measures in regard of a very limited number of products. Nevertheless for the product intervention regime to optimally function, we have argued in favour of a number of changes in the regulations and in the way they are interpreted.

Part II The New EU Prospectus Rules, 9 The Contents of the Prospectus: Non-Financial Information and Materiality

2020 ◽  
Author(s):  
de Serière Victor
Keyword(s):  
Capital Markets ◽  
Investor Protection ◽  
Tort Law ◽  
Financial Information ◽  
Good News ◽  
Level Playing Field ◽  
Playing Field ◽  
Prospectus Liability ◽  
Capital Markets Union ◽  
The Eu

This chapter addresses the non-financial information to be included in a prospectus, alongside an analysis of the fundamental concept of materiality. It examines some issues relating to non-financial information to be included in a prospectus under the new EU prospectus regime. A level playing field in terms of uniform investor protection within the EU accordingly has regrettably not been achieved. This chapter argues that the Prospectus Regulation could have achieved more by requiring Member States to impose certain uniform tort law requirements in their national prospectus liability regimes. Another topic addressed in this chapter relates to the possibility for offerors of securities to obtain liability protection by including exoneration clauses in prospectuses. The Prospectus Regulation does not regulate this topic, but the analysis in this chapter shows that the possibilities appear to be severely limited; practice in any event shows that exoneration is seldom (if ever) stipulated. The chapter concludes that all this appears to be relatively good news in terms of investor protection generally, but the lack of harmonisation stands in the way of a unified EU capital markets union.

ESMA as a Residual Lawmaker: The Political Economy and Constitutionality of ESMA’s Product Intervention Measures on Complex Financial Products

2021 ◽  
Author(s):  
Pablo Iglesias-Rodríguez
Keyword(s):  
Political Economy ◽  
Investor Protection ◽  
The Political ◽  
Regulatory Arbitrage ◽  
Financial Products ◽  
Intervention Measures ◽  
Binary Options ◽  
The One ◽  
National Competent Authorities ◽  
The Eu

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.

Concentrations in the Aviation Sector: How to maintain the level playing field for airlines and airports?

2021 ◽  
Vol 24 (3) ◽  
pp. 485-511
Author(s):  
Valentine Lemonnier
Keyword(s):  
Competition Law ◽  
Air Transport ◽  
Transport Sector ◽  
Level Playing Field ◽  
Playing Field ◽  
Market Participants ◽  
Free Competition ◽  
Eu Competition Law ◽  
Different Types ◽  
The Eu

Before the Covid-19 pandemic hit, the scheduled passenger air transport sector was already subject to several horizontal concentrations. The mix of free competition and strict regularization in the air transport sector in the EU raises the question whether the current framework will still be able to provide a level playing field to the market participants, notably airlines and airports. The study focusses on how EU competition law has influenced horizontal concentrations (i.e. mergers and horizontal co-operations) in the scheduled passenger air transport sector. The results of the discussion are the basis for a reflection of the effects of different types of horizontal concentrations on the negotiation power of airlines vis-à-vis airports. A third focus of the study is the identification of regulatory weaknesses with regard to airport financing under the Airport Charges Directive (Directive 2009/12/EC), how those weaknesses benefit airlines and how they might interfere with efforts made under the application of competition law.

scholarly journals Dimensions of bank capital regulation: A cross-country analysis

2014 ◽  
Vol 61 (4) ◽  
pp. 415-439 ◽  
Author(s):  
Matej Marinc ◽  
Mojmir Mrak ◽  
Vasja Rant
Keyword(s):  
World Bank ◽  
Capital Regulation ◽  
Bank Capital ◽  
Level Playing Field ◽  
Playing Field ◽  
The World Bank ◽  
Bank Capital Regulation ◽  
Country Analysis ◽  
Cross Country ◽  
The Eu

This paper identifies the main dimensions of capital regulation. We use survey data from 142 countries from the World Bank?s (2013) database covering various aspects of bank regulation. Using multiple explorative factor analysis, we identify two main dimensions of capital regulation: complexity of capital regulation and stringency of capital regulation. We show that even countries with a common legal and regulatory framework differ substantially in terms of capital regulation. For example, the level of stringency of capital regulation varies substantially across the EU countries, potentially distorting the level playing field.

EU wants a post-Brexit level playing field

2018 ◽  
Keyword(s):  
United Kingdom ◽  
Level Playing Field ◽  
Environmental Standards ◽  
Content Type ◽  
Playing Field ◽  
The United Kingdom ◽  
Food Standards ◽  
The Uk ◽  
Trade Deals ◽  
The Eu

Subject Level playing field after Brexit. Significance Unless the United Kingdom remains a member of the single market, it will no longer automatically be subject to EU rules after Brexit. This has raised concerns in the EU that the United Kingdom could gain a competitive advantage by moving towards a ‘low tax, low regulation’ economic model, which could undermine the competitiveness of the EU and trigger a regulatory race to the bottom. Impacts Lower UK environmental standards could impose direct costs on EU consumers, for example through cross-border air pollution. London may be tempted to accept lower food standards in securing more favourable trade deals with non-EU countries. A no-deal Brexit would put the UK government under greater pressure to adopt a tougher stand vis-a-vis the EU and deregulate.

Payment services in the EU: price regulation to protect a duopoly

2020 ◽  
Vol 18 (4) ◽  
pp. 175-189
Author(s):  
Mario Siragusa ◽  
Maurits Dolmans ◽  
Romano F. Subiotto QC ◽  
Paul Gilbert ◽  
John Messent
Keyword(s):  
Unintended Consequence ◽  
Price Regulation ◽  
Entry Barriers ◽  
Level Playing Field ◽  
Playing Field ◽  
Interchange Fees ◽  
Market Shares ◽  
Payment Schemes ◽  
Payment Services ◽  
The Eu

The EU Interchange Fee Regulation (‘IFR’) introduced price caps on the fees paid between banks in respect of credit and debit card payments. The Second Payment Services Directive (‘PSD2’) forces some payment schemes to open up their networks to any banks that want to use them. These rules, together with a wealth of related and ancillary provisions, are the legislative fallout from a series of antitrust investigations into Visa and Mastercard. But the rules are not limited to Visa and Mastercard, nor are they limited to schemes that operate in the same way as Visa and Mastercard. They extend to payment schemes with no interchange fees at all and with tiny market shares. One argument made for including all schemes within the scope of the rules was to create a level playing field for competition. Instead, regulation that was initially aimed at Visa and Mastercard has created high entry barriers and hamstrung the only realistic challengers to these four-party schemes. If rival schemes are unable to offer customers or merchants something different, all payment services will become commoditised. Without meaningful rivals, the duopoly of Visa and Mastercard will become more entrenched and customers will see a reduction in choice and innovation. The unintended consequence of the IFR and PSD2 could be to reduce competition in the market, the very thing they were originally designed to address.

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