Building an EU Securities Market

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ISBN: 9780521847223 | 0521847222
Cover: Hardcover
Copyright: 1/10/2005

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This book considers some of the fundamental issues concerning the legal framework that has been established to support a single EU securities market. It focuses particularly on how the emerging legal framework will affect issuers' access to the primary and secondary market. The Financial Services Action Plan (FSAP, 1999) was an attempt to equip the community better to meet the challenges of monetary union and to capitalise on the potential benefits of a single market in financial services. It led to extensive change in securities market regulation: new laws; new law making processes, and more attention to the mechanisms for the supervision of securities market activity and legal enforcement. With the FSAP nearing completion, it is a good time to take stock of what has been achieved, and to identify the challenges that lie ahead.

Preface

xiii

Table of legislation and cases

Overview and introduction to terminology

(7)

The FSAP

(1)

General background to the development of the FSAP

(3)

From FSAP to Lamfalussy and CESR

(2)

EU securities law -- explanation for terminological approach

(1)

Law's role in the building of an integrated EU securities market

(50)

Scope of chapter

(3)

Financial development and the promotion of economic growth

(14)

The benefits of financial market development: expectations and evidence

(4)

Growth in securities market activity in the EU

(1)

Market changes

(7)

Forces that propelled the growth in securities market activity within the EU

(2)

An omission?

(1)

Did EU law matter to the development of securities market activity in the EU during the 1980s and 1990s?

(16)

Law as market-creator: what the debate is about

(3)

How does this debate relate to EU securities regulation?

(2)

Controlling market abuse: banning insider dealing

(4)

Issuer disclosure: prospectuses and ongoing disclosure

(4)

EU law was a catalyst for changes in Member States' law but it does not necessarily follow that it was a catalyst for securities market development

(3)

Strategic policy choices in EU law-making to promote a single securities market

(17)

Implications of uncertainty surrounding law's contribution to the development of securities markets

(2)

The FSAP favoured regulatory intervention as the primary policy tool (despite the dangers)

(3)

Is there an EU policy alternative? Placing the emphasis more on supervision and enforcement than on additional regulation

(4)

Making future policy choices on EU regulatory intervention: should there be some room for regulatory competition?

(8)

The regulatory process for securities law-making in the EU

(69)

Scope of chapter

(3)

Recent refinement of the regulatory process -- the Lamfalussy model

(23)

The path towards reform of the regulatory process

(6)

Co-operation between the Commission, Council and European Parliament in the Lamfalussy process

(1)

Formal allocation of regulatory responsibilities as between the Commission, Council and European Parliament under the Lamfalussy process

(8)

The establishment of new committees to assist the regulatory process

(1)

Existing committees and bodies that contribute to securities law-making

(2)

New committees under the Lamfalussy process (1): European Securities Committee

(1)

New committees under the Lamfalussy process (2): Committee of European Securities Regulators

(3)

The mechanics of Level 2 legislation

(1)

Role of the private sector and a new emphasis on transparency and consultation

(2)

Assessing the Lamfalussy process

(27)

Expansion of the Commission's role: empire-building or advancing towards a new model of collaborative governance?

(6)

Consultation and transparency by the Commission and CESR: the development and management of dialogic webs

(1)

Consultation and transparency as quality-enhancing devices

(3)

Consultation and transparency processes: the functioning of the machinery

(1)

Consultation and transparency as mechanisms for improving accountability and legitimacy

(2)

Consultation and transparency: can there be too much of a good thing?

(1)

Boundaries between levels of regulation within the Lamfalussy process

(1)

Level 1 and Level 2

(1)

Level 2 and Level 3 -- a new `boundaries' issue that could become increasingly significant

100

(2)

CESR's relations with the Commission and with interest groups: legitimacy and accountability concerns

102

(5)

The role of the European Securities Committee (ESC)

107

(2)

The role of the European Parliament

109

(2)

The limitations of processes

111

(8)

An alternative model: a pan-European securities regulatory (and supervisory) agency

119

(3)

Conclusions

122

(5)

The centrality of disclosure as a regulatory strategy

127

(7)

Scope of chapter

127

(7)

Disclosure as the first-choice regulatory strategy generally, and for issuers in particular

127

(1)

Functions that issuer disclosure regimes can perform

127

(2)

The policy choice, and how the EU has chosen to exercise it

129

(2)

How well does the EU manage the high risk of making regulatory mistakes? Analysing issuer disclosure provides an opportunity to test the Lamfalussy process for securities law-making

131

(1)

The importance of credible disclosure; and what the EU is doing about it by way of organisation of supervisory oversight of issuer disclosure

132

(1)

The role of stock exchanges in the regulation and supervision of issuers within the EU

133

(1)

Issuer disclosure

134

(74)

Scope of chapter

134

(1)

Prospectus and periodic disclosure: the legislative background and the emerging new regime

135

(3)

Building a comprehensive, standardised disclosure regime at the expense of loss of opportunities for competition between Member States -- a move in the right direction?

138

(22)

Prospectus disclosure requirements -- a new world of `maximum harmonisation'

138

(7)

But compare the Transparency Directive

145

(2)

Allocation of regulatory and supervisory responsibilities for issuers amongst the competent authorities of EU Member States

147

(1)

Prospectus Directive -- identification of home State is important for supervisory rather than regulatory purposes (because the rules are the same)

147

(2)

Identifying an issuer's EU home State for the Prospectus Directive

149

(1)

Where the Prospectus Directive led, the Transparency Directive (broadly) followed

149

(1)

Concerns about the rigidity of the rules on the determination of home States

150

(3)

Potential implications for EU issuers

153

(2)

Potential implications for non-EU issuers

155

(1)

Are Member States likely to exceed the Transparency Directive -- or is de facto convergence on periodic disclosure requirements a more likely prospect?

156

(3)

Assessment -- moving in the right direction?

159

(1)

Demolishing the tower of Babel -- standardising the language of financial and other information

160

(7)

Financial information in prospectuses and periodic disclosures -- treatment of foreign issuers

160

(4)

The language(s) of non-financial information

164

(2)

Translations of prospectus summaries

166

(1)

Adapting the prospectus and periodic disclosure regime for specialist debt securities markets

167

(8)

Exemptions from the requirement to produce a prospectus

169

(1)

Modified disclosure requirements for prospectuses relating to wholesale securities that are to be admitted to trading on regulated markets

170

(3)

Periodic disclosure requirements and specialist securities

173

(1)

But a different threshold for a special regime on the allocation of supervisory responsibilities

173

(2)

Tailoring prospectus and periodic disclosure requirements to cater for retail investors

175

(4)

The impact of the new regime for prospectuses and periodic disclosures on smaller/younger issuers and on second-tier market infrastructure providers

179

(9)

SMEs and start-ups as a deserving case for a lighter touch -- only limited success for this argument in the Prospectus Directive

180

(2)

But more success in the Transparency Directive

182

(3)

Implications for second-tier stock markets

185

(3)

Ensuring candid and careful compliance with prospectus and periodic disclosure requirements

188

(5)

Dissemination of information

193

(4)

The Market Abuse Directive and issuer disclosure

197

(3)

Concluding remarks -- moving closer to a genuine single securities market?

200

(8)

The new rules should facilitate exempt offers of unlisted securities to the wholesale markets

200

(1)

Cross-border offers/multiple listings making use of the passport are likely to remain rare

201

(1)

The new regime does not seek to address the home State bias in primary equity listings and may have only limited impact on home bias in investment portfolios

202

(3)

The interests of non-EU issuers have received insufficient attention and this could have adverse long-term consequences

205

(1)

Non-ISD/ISD2 regulated markets and alternative trade execution mechanisms could benefit at the expense of ISD/ISD2 regulated markets

206

(2)

Institutional supervision of issuer disclosure within the EU

208

(28)

Scope of chapter

208

(4)

Issuer disclosure obligations outside core securities law

212

(7)

Financial disclosures

212

(3)

No post-Enron reassessment of EU policy choices on the content of financial disclosure obligations

215

(3)

Corporate governance disclosures

218

(1)

Supervision of issuer disclosure

219

(9)

US regulatory requirements as a catalyst for institutional remodelling in Member States: recent experience on auditor oversight

228

(5)

Does lack of uniformity in EU-wide supervision of securities market activity matter?

233

(3)

Regulatory competencies: the end of exchange-based regulation and supervision of issuers in the EU?

236

(31)

Scope of chapter

236

(3)

Exchanges as regulators of issuers and the impact of demutualisation: issues and responses

239

(15)

Demutualisation: changes to organisational structures as a response to growing competitive pressures

239

(4)

Exchanges as regulators and supervisors of issuers: possible functions, and how the assessment of their role is affected by demutualisation

243

(4)

Post-demutualisation cutting of the regulatory and supervisory pies: different approaches around the world

247

(7)

Competitive exchanges and EU market integration

254

(13)

Existing diversity in the regulatory and supervisory roles played by exchanges in Member States

254

(1)

Exchange-based regulation and supervision as a mechanism for promoting EU market integration

255

(2)

Counter considerations

257

(2)

A way forward

259

(8)

Bibliography

267

(26)

Index

293

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Building an EU Securities Market

Summary

Table of Contents

Supplemental Materials