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Cross-border Enforcement of Listed Companies' Duties to Inform (IVOR nr. 87) 2012/2.5.4.0
2.5.4.0 Introductie
mr.drs. T.M.C. Arons, datum 07-05-2012
- Datum
07-05-2012
- Auteur
mr.drs. T.M.C. Arons
- JCDI
JCDI:ADS372034:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Commission Proposal Regulation ESRB, Commission Proposal Regulation EBA, Commission Proposal Regulation EIOPA and the Commission Proposal Regulation ESMA.
Brussels, 10 July 2009, 11225/2/09 REV 2, CONCL 2.
Brussels, 2 December 2009, 16838/09 (Presse 352). The Council of Ministers clearly states that decisions taken by ESAs cannot impinge in any way on the fiscal responsibilities of the Member States. Furthermore, it decided that any binding decision taken by ESAs should be subject to review by the EU courts.
1 Draft Report on the proposal for a regulation of the European Parliament and of the Council establishing a European Securities and Markets Authority (COM (2009)0503 — C7-0167/2009 — 2009/0144(COD)). 10.2.2010.
P7_TA(2010)0270.
P7_TA(2010)0339.
For a general overview of the European System of Financial Supervisors and the powers of the European Supervisory Authorities, I refer to de Doelder/Jansen (2010); Lieverse (2009); van Haersolte/van Meerten (2010).
In art. 1(5)(f) ESMA regulation this goal is ambiguously formulated as: 'enhancing customer protection.'
Moloney (2010), p. 1331: While the reforms to the Prospectus Directive proposed in autumn 2009 are generally technical and specific to weaknesses in the Directive which were not implicated in the crisis, the ongoing reviews of the Market Abuse Directive (MAD) and MiFID are likely to lead to significant changes in the EU's regulatory perimeter and to reflect the post-crisis concern to minimize regulatory arbitrage.'
Now I will turn to a more detailed analysis of the regulations establishing the European Supervisory Authorities. The Commission proposals1 were supported by the European Council in June 20092 and the Council of Ministers of Finance and Economic Affairs (ECOFIN) in December 2009.3 In February 2010, the Committee on Economic and Monetary Affairs of the European Parliament submitted its first draft report on the ESMA Proposal with amendments.4 In July 2010, the European Parliament made, in its first reading, amendments to the ESMA Proposal.5 After the proposal was amended by the Commission, the European Parliament adopted the resolution to create a European Securities and Markets Authority in September 2010.6 On 17 November 2010, the Council endorsed the amended proposal and adopted Regulation (EU) 1095/2010 establishing the European Securities and Markets Authority ("ESMA regulation"). In this subsection, I will focus on the powers of the European Securities and Markets Authority, as laid down in the ESMA regulations, with respect to the rules laid down in the Prospectus Directive 2003.7
Article 1(2) of the ESMA regulation states that ESMA has the power to act within the scope of, among others, the Admission to Listing Directive 2001 and the Prospectus Directive 2003. ESMA can also act on the basis of directives, regulations, and decisions based on these directives. The relevant objective of ESMA with respect to the abovementioned Directives is to contribute to the protection of investors.8
Article 4 of the ESMA regulation gives the following defmitions:
"financial market participant" is any person in relation to whom a requirement in the legislation referred to in Article 1(2) or a national law implementing such legislation applies;
"key financial market participant" is a financial market participant, whose regular activity or financial viability has or is likely to have a significant effect on the stability, integrity, or efficiency of the financial markets in the EU; "competent authorities" are, amongst others, competent authorities and/or supervisory authorities as defined in the legislation referred to in Article 1(2).
On the basis of article 8(1)(b) of the regulation, the task of ESMA is to contribute to a consistent application of legally binding Union acts, in particular, by contributing to a common supervisory culture, ensuring consistent, efficient and effective application of the legislation referred to in article 1(2), including the Admission Directive 2001 and the Prospectus Directive 2003, preventing regulatory arbitrage,9 mediating and settling disagreements between competent authorities, promoting coherent functioning of colleges of supervisors and taking action in emergency situations.