Einde inhoudsopgave
EU Equity pre- and post-trade transparency regulation (LBF vol. 21) 2021/3.II.5.3
3.II.5.3 Limited implementing powers for EU institutions
mr. J.E.C. Gulyás, datum 01-02-2021
- Datum
01-02-2021
- Auteur
mr. J.E.C. Gulyás
- JCDI
JCDI:ADS267177:1
- Vakgebied(en)
Financieel recht / Bank- en effectenrecht
Financieel recht / Europees financieel recht
Financiële dienstverlening / Financieel toezicht
Voetnoten
Voetnoten
See in this context Ferrarini, who noted that ‘the technical nature of many of the issues involved in securities regulation (suggested) limiting the directives’ (ISD) scope to general principles and rules, and to assign a wider role to the ‘implementing powers’ of the European organs’ (G. Ferrarini, Pan-European Securities Markets: Policy Issues and Regulatory Responses, WP, 2002, p. 9-10).
See, for example, Nielsen who noted that the ISD left unanswered what means of a reaction the investor could invoke if he was not able to carry on the transaction in accordance with the conditions published (as required by the ISD). Nielsen noted that the ISD did not contain any indications which could lead to an answer (P.R. Nielsen, ‘The Community Directive on Investment Services’, 1995, p. 182).
G. Ferrarini, Pan-European Securities Markets: Policy Issues and Regulatory Responses, Working Paper Series, 2002, p. 22.
The third and final element that made the ISD pre-trade transparency regime bottom-up was the lack of implementing powers for EU institutions to draft additional regulation. The ISD provided no implementing powers. An EU institution, such as the Commission, could not formally clarify technical matters, such as the ISD pre-trade transparency provisions.1 FESCO provided complementary recommendations to the ISD pre-trade transparency regime, but – as set out above – these recommendations were formally non-binding.2 The FESCO guidance merely had the power to result in harmonization in practice (de facto), rather than by regulation (de facto).3 The Commission, nor FESCO, was permitted to draft so-called Level 2 equity pre-trade transparency rules under the ISD.