Asset Segregation Rules for Central Securities Depositories: Maximizing Investor Protection While Ensuring a Level Playing Field

Author(s):  
Randy Priem
Author(s):  
de Serière Victor

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.


2020 ◽  
Vol 17 (1) ◽  
pp. 99-124
Author(s):  
Veerle Colaert

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.


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