5. Public Enforcement

Commission des opérations de bourse—COB, “Communiqué Relatif a La Création Du Forum of European Securities Commissions De Fesco,” (1997).

Ibid.

Ibid.

The euro was officially established by the 1992 Maastricht Treaty, and it was introduced in non-physical form on 1 January 1999. The physical introduction of the single European currency took place on 1 January 2002.

European Commission, “Communication of the Commission—Financial Services: Building a Framework for Action,” (Brussels: COM (98) 525 final, 1998).

“Financial Services: Implementing the Framework for Financial Markets: Action Plan,” (Brussels 1999).

Council of the European Union, “Regulation of European Securities Markets—the Terms of Reference for the Committee of Wise Men—10491/00,” (Brussels 2000).

Ibid.

The Committee of Wise Men—Lamfalussy Committee, “Final Report of the Committee of Wise Men on the Regulation of European Securities Markets,” (2001).

European Commission, “Commission Decision Establishing the Committee of European Securities Regulators,” (Brussels: C(2001) 1501 final, 2001).

Ibid. At 4.

It is quite difficult to categorize “soft-law” arrangements because “instruments may be included within this generic term for a number of reasons: (1) they have been articulated in non-binding form according to traditional modes of law-making; (2) they contain vague and imprecise terms; (3) they emanate from bodies lacking international law-making authority; (4) they are directed at non-state actors whose practice cannot constitute customary international law; (5) they lack any corresponding theory of responsibility; (6) they are based solely upon voluntary adherence, or rely upon non-judicial means of enforcement.” Christine Chinkin, “Normative Development in the International Legal System,” in Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, ed. Dinah Shelton (New York: Oxford University Press, 2000). At 30.

Eric J. Pan, “Harmonization of US–Eu Securities Regulation: The Case for a Single European Securities Regulator,” Law & Policy of International Business 34, no. 2 (2003); Yannis Avgerinos, “The Need and the Rationale for a European Securities Regulator,” in Financial Markets in Europe: Towards a Single Regulator?, ed. Mads Andenas and Yannis Avgerinos (London: Kluwer Law International, 2003). Gerard Hertig and Ruben Lee, “Four Predictions About the Future of Eu Securities Regulation,” Journal of Comparative Law Studies 3, no. 2 (2003). Gilles Thieffry, “The Case for a European Securities Commission,” in Regulation Financial Services in the 21st Century, ed. Eilís Ferran and Charles A.E. Goodhart (Oxford-Portland: Hart Publishing 2001).

European Commission, “Press Release—High Level Expert Group on Eu Financial Supervision to Hold First Meeting on 12 November—Ip/08/1679,” (2008).

European Commission, “European System of Financial Supervision,” https://​ec.​europa.​eu/​info/​business-economy-euro/​banking-and-finance/​financial-supervision-and-risk-management/​european-system-financial-supervision_​en.

The de Larosière Group, “Report of the High Level Group on Financial Supervision in the Eu,” (2009).

European Commission, “Proposal for a Regulation of the European Parliament and of the Council Establishing a European Securities and Markets Authority—Com(2009) 503 Final,” (Brussels 2009); “Proposal for a Regulation of the European Parliament and of the Council Establishing a European Insurance and Occupational Pensions Authority—Com(2009) 502 Final,” (Brussels 2009); “Proposal for a Regulation of the European Parliament and of the Council Establishing a European Banking Authority—Com(2009) 501 Final,” (Brussels 2009).

Regulation 1092/2010. Article 6 lists the members of the General Board of the ESRB: (a) the President and the Vice-President of the ECB; (b) the Governors of the national central banks; (c) a Member of the Commission; (d) the Chairperson of the European Supervisory Authority (European Banking Authority); (e) the Chairperson of the European Supervisory Authority (European Insurance and Occupational Pensions Authority); (f) the Chairperson of the European Supervisory Authority (European Securities and Markets Authority); (g) the Chair and the two Vice-Chairs of the Advisory Scientific Committee; (h) the Chair of the Advisory Technical Committee.

The European Banking Authority, established by Regulation 1093/2010; the European Insurance and Occupational Pensions Authority, established by Regulation 1094/2010; and the European Securities and Markets Authority (ESMA), established by Regulation 1095/2010.

As the official ESAs’ website states: “Through the Joint Committee, the three ESAs coordinate their supervisory activities in the scope of their respective responsibilities regularly and closely and ensure consistency in their practices.” Joint Committee of the European Supervisory Authorities—ESAs, “About Us,” https://​esas-joint-committee.​europa.​eu/​about-us.

On Self-Placement, see: European Supervisory Authorities—ESAs, “Placement of Financial Instruments with Depositors, Retail Investors and Policy Holders (‘Self Placement’),” (2014).

European Commission, “Report on the Operation of the European Supervisory Authorities (Esas) and the European System of Financial Supervision (Esfs), Com(2014) 509 Final,” (2014). At 2.

Germany V. Parliament and Council (Tobacco Advertising) ECR I-8419 (2000). Para. 84. Literature on the EU Law and the Single Market is vast, for a recent important contribution: Anthony Arnull and Damian Chalmers, The Oxford Handbook of European Union Law (Oxford: Oxford University Press, 2015).

Elaine Fahey, “Does the Emperor Have Financial Crisis Clothes? Reflections on the Legal Basis of the European Banking Authority,” The Modern Law Review 74, no. 4 (2011). At 581. As regards critiques about the Commission’s approach on the creation of European agencies: Stefan Griller and Andreas Orator, “Everything under Control? The “Way Forward” for European Agencies in the Footsteps of the Meroni Doctrine,” European Law Review 35, no. 1 (2010). At 5.

As reported in Fahey. (At 590) The British House of Commons suggested that the flexibility clause of Article 308 EC (now Article 352 TFEU) could provide a better basis for the European financial reforms package, due to the fact that it implies unanimity. However, it may be easily said that unanimity is a serious functioning issue itself, which de facto does not allow the establishment of a fast, pan-European problem-solving institution. [House of Commons—Treasury Committee, “The Committee’s Opinion on Proposals for European Financial Supervision—Sixteenth Report of Session 2008–09,” (2009).]

Griller and Orator. At 5.

Ibid. Recital 14.

Griller and Orator.

Meroni & Co Industrie Metallurgiche Spa V High Authority of the European Coal and Steel Community (Meroni I), ECR 133 (1957); and Meroni & Co Industrie Metallurgiche Spa V High Authority of the European Coal and Steel Community (Meroni Ii), ECR 133 (1958).

Griller and Orator. At 10.

Ibid. At 10.

Ibid. At 10.

Ibid.

Ibid.

Also: Xenophon A. Yataganas, “Delegation of Regulatory Authority in the European Union—the Relevance of the American Model,” ed. Harvard Law School—Jean Monnet Working Paper 03/01 (Cambridge 2001). At 27.

Damien Geradin and Nicolas Petit, “The Development of Agencies at Eu and National Levels: Conceptual Analysis and Proposals for Reform,” ed. NYU School of Law—Jean Monnet Working Paper 01/04 (New York 2004). At 49.

Paul Craig, Eu Administrative Law—2nd Edition (Oxford: Oxford University Press, 2012). At 155.

For the categorization of EU agencies, see: Griller and Orator.

Regulation Eu/236/2012. This piece of European legislation is aimed at directly harmonizing short selling in Europe. In the C-270/12 press release, the ECJ has circumscribed short selling as the “practice consisting in the sale of shares and securities not owned by the vendor at the time of the sale with a view to benefiting from a fall in the price of the shares and securities”. The Court also added that in “the event of disturbance on the financial markets, the regulation seeks, inter alia, to prevent an uncontrolled fall in the price of financial instruments as a result of the effect of short selling”. Court of Justice of the European Union—ECJ, “The Power of the European Securities and Markets Authority to Adopt Emergency Measures on the Financial Markets of the Member States in Order to Regulate or Prohibit Short Selling Is Compatible with Eu Law—Press Realise No. 7/14,” (2014).

Article 28.2a, SSR.

Article 28.2b, SSR.

Marjosola. At 1.

Article 28.11, SSR. The United Kingdom based its appeal on several assumptions, in particular the fact that the emergency regulatory powers granted to ESMA violate the above-mentioned Meroni doctrine. The United Kingdom also asserted that by granting ESMA the authority to adopt non-legislative acts of general application the SSR had violated the limits imposed by Articles 290 and 291 of the TFEU regarding EU non-legislative acts. Moreover, the United Kingdom also claimed that Article 114 TFEU was an inadequate basis for the SSR because it could not give ESMA the power to issue individual decisions binding on third parties. The Council and the Parliament (with the support of the Commission, Spain, France, and Italy) responded by stating that the emergency powers granted to ESMA were to be judged “in the light of the modernisation of EU agency law that occurred under the Lisbon Treaty, particularly with respect to judicial review of acts of agencies having legal effects” [Niilo Jääskinen, “Opinion of the Advocate General Jääskinen on Case C-270/12,” (2013)]. ECJ backed the Council’s and the Parliament’s position, making Article 28 fully legal.

“The Authority shall fulfil a general coordination role between competent authorities, in particular in situations where adverse developments could potentially jeopardise the orderly functioning and integrity of financial markets or the stability of the financial system in the Union.” Article 31 Regulation 1095/2010.

Article 6 Regulation 1095/2010.

Article 40.1.

Article 44.1.

Article 44.1.

Article 47.1.

Article 45.

Article 48.2.

Article 48.1.

Article 49.

Article 48.5.

Article 51.1.

Article 51.2.

Article 53.

Article 53.

European Securities and Markets Authority—ESMA, “Standing Committees,” https://​www.​esma.​europa.​eu/​about-esma/​working-methods/​standing-committees.

Ibid.

Ibid.

Article 60.1.

Article 61.1.

Article 60.1.

European Securities and Markets Authority—ESMA, “Frequently Asked Questions—a Guide to Understanding Esma,” (2011). At 13. Regulation 1095/2010, Chap. 7—Financial Provisions.

“Esma Organigramme,” https://​www.​esma.​europa.​eu/​about-esma/​esma-in-short/​esma-organigramme. An eighth one has been established for Brexit.

European Securities and Markets Authority—ESMA, “2017 Work Programme—Esma/2016/1419,” (2016).

Securities and Exchange Commission—SEC, “Sec Employees,” https://​www.​sec.​gov/​spotlight/​sec-employees.​shtml.

European Commission, “Public Consultation on the Operations of the European Supervisory Authorities,” (2017).

Ibid. At 19.

Ibid. At 22–23.

Regulatory technical standards, alongside recommendations and guidelines, make up ESMA Single Rulebook. European Securities and Markets Authority—ESMA, “2012 Work Programme,” (2011). At 4.

“Investor Protection Policy—Mifid Ii Rts & Its,” https://​www.​esma.​europa.​eu/​policy-rules/​mifid-ii-and-investor-protection/​investor-protection-policy.

RTS 27—C(2016) 3333 final. http://​ec.​europa.​eu/​finance/​securities/​docs/​isd/​mifid/​rts/​160608-rts-27_​en.​pdf.

Article 10, ESMA Regulation.

Article 17.6.

Article 17.6.

Article 18.

Article 21.2.

Article 21.2.

See ESMA official website: European Securities and Markets Authority—ESMA, “Who We Are,” https://​www.​esma.​europa.​eu/​about-esma/​who-we-are.

In the words of the ESMA chair: “Since its inception three and a half years ago, ESMA has contributed to the creation of an EU single rulebook by developing technical standards and guidelines, and by assisting the European Institutions, and the European Commission in particular, in providing technical advice.” Steven Maijoor, “Statement by Steven Maijoor Chair European Securities and Markets Authority—Econ Committee, European Parliament 23 September 2014—Esma/2014/1164,” (2014).

In particular, Article 16.3 of ESMA Regulation states that “competent authorities and financial market participants shall make every effort to comply with […ESMA’s] guidelines and recommendations”.

European Securities and Markets Authority—ESMA, “Supervisory Convergence” https://​www.​esma.​europa.​eu/​convergence/​supervisory-convergence. This phenomenon has already started, as reported by Svetiev and Ottow in their seminal article: “All officials interviewed from the different authorities suggested that the EU legislative framework has had a decisive influence on local supervision, not only at the legislative level, but also in the development of national supervisory capacities in the areas of investor protection.” Yane Svetiev and Annetje Ottow, “Financial Supervision in the Interstices between Private and Public Law,” European Review of Contract Law 10, no. 4 (2014). At 538.

In the words of Professor Haar: “Home country control results in Member States’ dependence on the quality of each other’s regulation and supervision.” At 171. Haar.

This concept is plainly reaffirmed by Recital 137 of MiFID II which states that: “It is necessary to enhance convergence of powers at the disposal of competent authorities so as to pave the way towards an equivalent intensity of enforcement across the integrated financial market.” Convergence also elicits criticism as it is clarified by Svetiev and Ottow: “The adoption of a uniform model of supervision and enforcement, which may additionally reduce variety in private contracting and corporate governance, [is] particularly problematic because any deficiencies in the chosen approach to enforcement would be magnified across the EU and limit the opportunities for learning from divergent supervisory techniques.” Svetiev and Ottow. At 501.

Peer reviews are conducted under Article 30 of the establishing Regulation. European Securities and Markets Authority—ESMA, “Peer Review Report—Compliance with Ssr as Regards Market Making Activities—Esma/2015/1791,” (2016).

In the words of the ESMA Chair, Steven Maijoor: “ESMA will focus on the implementation of MiFIDII/MiFIR in 2017, this reflects our shift as a supervisory authority from building the single rulebook to ensuring the application of that rulebook through convergent supervisory practices across the European Union.” European Securities and Markets Authority—ESMA, “Press Release—Esma to Focus on Supervisory Convergence Issues in 2017—Esma/2016/1458,” (2016). Also the European Commission in its Green Paper on the Capital Market Union: “Although regulatory frameworks for capital markets have largely been harmonised, the success of reforms also depends on the implementation and consistent enforcement of the rules. The ESAs play a key role in promoting convergence. […] To the extent that national supervisory regimes may result in differing investor protection levels, barriers to cross-border operations and discouraging companies seeking financing in other Member States, there may be a further role for the ESAs to play in increasing convergence.” European Commission, “Green Paper—Building a Capital Markets Union—Com(2015) 63 Final,” (2015). At 22.

ESMA, “Frequently Asked Questions—a Guide to Understanding Esma.” At 5.

European Commission, “Public Consultation on the Operations of the European Supervisory Authorities.” At 9.

Article 9.

As George Bentson says: “[the justification for financial regulation is] protection of consumers from the loss of their investments, fraud and misrepresentation, unfair treatment and insufficient information, incompetent employees of financial-services providers, and invidious discrimination.” George J. Benston, “Regulating Financial Markets: A Critique and Some Proposals,” ed. American Enterprise Institute for Public Policy and Research (Washington, DC, 1999).

Article 1.5.

European Securities and Markets Authority—ESMA, “Warning About Cfds, Binary Options and Other Speculative Products—Esma/2016/1166,” https://​www.​esma.​europa.​eu/​sites/​default/​files/​library/​2016-1166_​warning_​on_​cfds_​binary_​options_​and_​other_​speculative_​products_​0.​pdf.

“Standing Committees”.

Committee of European Securities Regulators—CESR, “Questions and Answers on Mifid: Common Positions Agreed by Cesr Members of the Investor Protection and Intermediaries Standing Committee—Cesr/10-589,” (2010). At 1.

Ibid. At 1.

Committee of European Securities Regulators—CESR, “A Consumer’s Guide to Mifid—Investing in Financial Products,” (Paris 2008).

European Securities and Markets Authority—ESMA, “Mifid Q&a in the Area of Investor Protection and Intermediaries,” (Paris 2011).

Ibid. At 3.

Ibid. At 3.

European Securities and Markets Authority—ESMA, “Q&as on Mifid Ii and Mifir Investor Protection Topic—Esma35-43-349,” (2017).

“Consultation on Guidelines on Certain Aspects of the Mifid Ii Suitability Requirements—Esma35-43-748,” (2017).

CESR highlighted five areas in need of supervisory centralization: (1) EU-wide public offerings of highly standardized products, (2) standardized UCITS, (3) accounting standards for listed companies, (4) credit rating agencies, and (5) certain trans-European market infrastructures (e.g., exchanges and related, clearing and settlement services). Committee of European Securities Regulators—CESR, “Preliminary Progress Report: Which Supervisory Tools for the Eu Securities Markets? An Analytical Paper by Cesr—Ref: 04-333f,” (2004). At 17. Only points 4 and 5 have been adopted with CRA Regulation and, partially, with EMIR for trade repositories for OTC Derivatives.

Article 40 MiFIR.

And EBA’s enforcement responsibilities on structured deposits.

Regulation 1060/2009/Ec., as amended by Regulation 513/2011/Eu.

European Securities and Markets Authority—ESMA, “Enforcement Actions,” https://​www.​esma.​europa.​eu/​supervision/​enforcement/​enforcement-actions.

European Commission, “Public Consultation on the Operations of the European Supervisory Authorities.”

Eight important points are developed under this section: (1) work on supervisory convergence; (2) non-binding measures; (3) work on consumer and investor protection; (4) enforcement powers; (5) international aspects of the ESAs’ work; (6) access to data; (7) powers in relation to reporting; and, (8) financial reporting. Ibid. At 7–15.

Ibid. At 16.

In particular the Commission asks whether there would “be merit in maximising synergies (both from an efficiency and effectiveness perspective) between the EBA and EIOPA while possibly consolidating certain consumer protection powers within ESMA in addition to the ESMA’s current responsibilities” or whether EBA and EIOPA should “remain as standalone authorities”. Ibid. At 22.

The Federal Reserve System is the central banking system of the United States. Federal Reserve System—FED, “About the Fed,” https://​www.​federalreserve.​gov/​aboutthefed.​htm.

As officially stated by its website, the OCC’s primary mission is to charter, regulate, and supervise all national banks and federal savings associations and to supervise the federal branches and agencies of foreign banks. Office of the Comptroller of the Currency—OCC, “About the Occ,” https://​www.​occ.​treas.​gov/​about/​what-we-do/​mission/​index-about.​html.

The FDIC is the federal independent agency organized as a corporation which insures deposits against bank failures. Federal Deposit Insurance Corporation—FDIC, “About Fdic,” https://​www.​fdic.​gov/​about/​.

As officially stated by its website, the NCUA is an independent federal agency that charters and supervises federal credit unions and insures savings in federal and most state-chartered credit unions across the country through the National Credit Union Share Insurance Fund. National Credit Union Administration—NCUA, “About Ncua,” https://​www.​ncua.​gov/.

The 2010 Dodd-Frank Act shut down the Office of Thrift Supervision (OTS) and distributed its competences among the FED, the OCC, and the FDCI. Apart from this change, “the reforms instituted by the Dodd–Frank Act did not significantly reduce the number of federal agencies, and it retained the activity-based character of the US financial regulatory system.” Pan. At 213.

The CFTC website states that its mission “to foster open, transparent, competitive, and financially sound markets. By working to avoid systemic risk, the Commission aims to protect market users and their funds, consumers, and the public from fraud, manipulation, and abusive practices related to derivatives”. At Commodity Futures Trading Commission—CFTC, “About the Cftc—Mission Statement,” http://​www.​cftc.​gov/​About/​MissionResponsib​ilities/​index.​htm.

Ibid. Title X: Bureau of Consumer Financial Protection, Sec. 1061: Transfer of Consumer Financial Protection Functions.

US Department of the Treasury, “Federal Insurance Office,” https://​www.​treasury.​gov/​about/​organizational-structure/​offices/​Pages/​Federal-Insurance.​aspx.

Federal Financial Institutions Examination Council—FFIEC, “About the Ffiec,” https://​www.​ffiec.​gov/​about.​htm.

US Department of the Treasury, “Financial Stability Oversight Council,” https://​www.​treasury.​gov/​initiatives/​fsoc/​Pages/​home.​aspx.

Despina Chatzimanoli, “Law and Governance in the Institutional Organisation of Eu Financial Services: The Lamfalussy Procedure and the Single Supervisor Revisited” (PhD Thesis, European University Institute, 2009). At 230.

The SEC oversight of SROs is an indispensable task due to the “inherent conflict of interests involved in self-regulation”. Luis A. Aguilar, “The Need for Robust Sec Oversight of Sros,” https://​www.​sec.​gov/​news/​public-statement/​2013-spch050813laahtm​.

For instance, under Title VII of Dodd-Frank Act, the SEC has regulatory authority over “security-based swaps”, whereas the CFTC has jurisdiction over all other derivatives. Securities and Exchange Commission—SEC, “Derivatives,” https://​www.​sec.​gov/​spotlight/​dodd-frank/​derivatives.​shtml.

Final Rules—Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds.

Chatzimanoli. At 232–233.

Ibid. At 232–233.

Ibid. At 233.

Chatzimanoli. At 233.

Ibid. At 233.

Ibid. At 233.

Ibid. At 233.

Ibid. At 232–233.

Commodity Futures Trading Commission—CFTC, “Cftc Mission & Responsibilities,” (Washington, DC, 2013).

Commodity Futures Trading Commission CFTC and Securities and Exchange Commission SEC, “Cftc, Sec Sign Agreement to Enhance Coordination, Facilitate Review of New Derivative Products,” news release, 2008, http://​www.​cftc.​gov/​PressRoom/​PressReleases/​pr5468-08.

Chatzimanoli. At 234.

Ibid. At 234.

Ibid. At 234.

Pan. At 199.

Appeal of Determinations by Self-Regulatory Organizations; Commission Consideration of Determinations by Self-Regulatory Organizations. In particular, paragraph a) of Rule 420 states: “An application for review by the Commission may be filed by any person who is aggrieved by a determination of a self-regulatory organization with respect to any: (1) final disciplinary sanction; (2) denial or conditioning of membership or participation; (3) prohibition or limitation in respect to access to services offered by that self-regulatory organization or a member thereof; or (4) bar from association as to which a notice is required to be filed with the Commission pursuant to Section 19(d)(1) of the Exchange Act, 15 U.S.C. 78s(d)(1).”

Securities and Exchange Commission—SEC, “2012 Agency Financial Report,” (2013). At 6.

Ibid. At 6.

“What We Do,” http://​www.​sec.​gov/​about/​whatwedo.​shtml#org.

Chatzimanoli. At 226.

Ibid. At 226.

Securities and Exchange Commission—SEC, “About Commissioners,” https://​www.​sec.​gov/​Article/​about-commissioners.​html.

Ibid.

“What We Do”.

“An appropriations measure provides budget authority to an agency for specified purposes. Budget authority allows federal agencies to incur obligations and authorizes payments to be made out of the Treasury. Discretionary agencies and programs, and appropriated entitlement programs, are funded each year in appropriations acts.” Bill Heniff Jr., “Overview of the Authorization-Appropriations Process,” (CRS Report for Congress, 2012).

Securities and Exchange Commission—SEC, “Sec Regional Offices,” (2017).

“What We Do”.

Ibid.

The documents include: “registration statements for newly-offered securities; annual and quarterly filings (Forms 10-K and 10-Q); proxy materials sent to shareholders before an annual meeting; annual reports to shareholders; documents concerning tender offers (a tender offer is an offer to buy a large number of shares of a corporation, usually at a premium above the current market price); and filings related to mergers and acquisitions.” Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

“Division of Corporation Finance,” (2013).

Ibid.

Ibid.

Ibid.

“What We Do”.

Ibid.

Securities and Exchange Commission—SEC, “Division of Trading and Markets,” (2017).

SEC, “What We Do”. On financial responsibility for Broker-Dealers see also: “Amendments to Financial Responsibility Rules for Broker-Dealers—Release No. 34-55431; File No. S7-08-07,” (2007).

Schiff Hardin LLP, “Regulatory Update—Sec Proposes Amendments to Its Broker-Dealer Financial Responsibility Rules,” https://​www.​schiffhardin.​com/​Templates/​Media/​files/​archive/​binary/​broker-dealer-financial-responsibility-rules.​pdf.

Securities and Exchange Commission—SEC, “Division of Investment Management,” (2013).

Ibid.

“What We Do”.

Ibid.

SEC—Division of Investment Management, “Regulation of Investment Advisers by the U.S. Securities and Exchange Commission,” (2013). At 9.

Ibid. At 9.

SEC, “What We Do”.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

“Investment Management,” (2017).

“What We Do”.

Chatzimanoli. At 252. And in the words of Professor Coffee: “Although the SEC also uses “ex ante” regulation, it seems more committed than other regulators to a policy of general deterrence through large penalties.” In John C. Coffee Jr., “Law and the Market: The Impact of Enforcement,” ed. Columbia Law and Economics Working Paper No. 304 (2007). At 80. In the same vein professor Langevoort: “The point, then, is that ‘regulation by enforcement’ is the norm in the U.S. and should be a focus of any analysis of regulatory strategy” Langevoort. At 491.

Securities and Exchange Commission—SEC, “About the Division of Enforcement,” https://​www.​sec.​gov/​enforce/​Article/​enforce-about.​html.

“What We Do”.

Ibid.

“About the Division of Enforcement”.

“About the Division of Economic and Risk Analysis,” https://​www.​sec.​gov/​dera/​about.

Ibid.

Ibid.

“What We Do”.

Ibid.

Ibid.

Securities and Exchange Commission—SEC, “Office of the Investor Advocate,” https://​www.​sec.​gov/​page/​investor-advocate-landing-page.

Ibid.

The SEC rulemaking process is usually quite active; see: Victor M. Rosenzweig, “Quarterly Survey of Sec Rulemaking and Major Appellate Decisions,” Securities Regulation Law Journal Spring 2014 (2014).

See: SecuRities and Exchange Commission—SEC, “Securities Act Rules,” https://​www.​sec.​gov/​divisions/​corpfin/​guidance/​securitiesactrul​es-interps.​htm.

See: “General Information on the Regulation of Investment Advisers” https://​www.​sec.​gov/​divisions/​investment/​iaregulation/​memoia.​htm.

Such as the Volcker Rule: Final Rules—Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds.

Securities and Exchange Commission—SEC, “Rulemaking, How It Works,” https://​www.​sec.​gov/​fast-answers/​answersrulemakin​ghtm.​html.

Ibid.

Ibid.

See, for example, the page for the submission of Comments on File No. S7-35-11: “Submit Comments on S7-35-11—Submit Comments on S7-35-11,” https://​www.​sec.​gov/​cgi-bin/​ruling-comments?​ruling=​s7-35-11&​rule_​path=​/​comments/​s7-35-11&​file_​num=​S7-35-11&​action=​Show_​Form&​title=​Treatment%20​of%20​Asset-Backed%20​Issuers%20​under%20​the%20​Investment%20​Company%20​Act.

“How to Submit Comments,” https://​www.​sec.​gov/​rules/​submitcomments.​htm.

“Rulemaking, How It Works”.

Securities and Exchange Commission—SEC, “How to Submit Comments,” https://​www.​sec.​gov/​rules/​submitcomments.​htm.

SEC, “Rulemaking, How It Works”.

Ibid.

Chatzimanoli. At 252; Coffee Jr. At 80.

SEC, “About the Division of Enforcement”.

In fields such as “concealed from investors risks, terms, and improper pricing in CDOs and other complex structured products”, the SEC enforcement effort has been quite active in post-crisis period: “Sec Enforcement Actions Addressing Misconduct That Led to or Arose from the Financial Crisis,” https://​www.​sec.​gov/​spotlight/​enf-actions-fc.​shtml#keyStatistics.

“Office of Compliance Inspections and Examinations,” https://​www.​sec.​gov/​ocie.

“Examinations by the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations,” (Washington, DC 2012). At 29.

Ibid. At 30.

Ibid. At 30.

“Enforcement Manual,” ed. Division of Enforcement (2015). At 19.

Ibid. At 19.

Ibid. At 21.

“What We Do”.

Ibid.

MacNeil. At 292–293.

SEC, “What We Do”.

See the official webpage: “Alj Initial Decisions,” https://​www.​sec.​gov/​litigation/​aljdec.​shtml.

Administrative sanctions include: “cease and desist orders, suspension or revocation of broker-dealer and investment advisor registrations, censures, bars from association with the securities industry, civil monetary penalties, and disgorgement”. “What We Do”.

See: ibid.

Securities and Exchange Commission—SEC, “Adjustments to Civil Monetary Penalty Amounts—Release Nos. 33-8530; 34-51136; Ia-2348; Ic-26748,” (2005).

Sec V. First City Financial Corporation, Ltd., et al., Appellants, 890 F.2d 1215, 1228 (D.C. Cir. 1989).

At 163.

Ibid. At 163.

Ibid. At 164.

Ibid. At 153–160.

Ibid. At 156.

Ibid. At 154.

Ibid. At 154.

Ibid. At 158.

Also in administrative proceedings. Ibid. At 169.

International Monetary Fund—IMF, “Global Financial Stability Report—Market Developments and Issues,” (Washington, DC: IMF Publication Services, 2004). The size of the EU financial markets is given by the sum of the Euro Area (Table 3.3 at page 80) and the UK financial markets (Table 3.7 at page 84).

Chatzimanoli. At 252; Coffee Jr. At 80.

Professor MacNeil identifies two main enforcement approaches: deterrence based versus compliance based. “A deterrence-based approach to enforcement focuses on certainty and severity of the punishment for contravention and its potential to deter both the individual transgressor and the wider regulated community. Effective deterrence requires in principle that the expected penalty should exceed the social harm caused by the regulatory contravention but that may be difficult to quantify especially when a regulatory contravention is only one of several causes of the social harm. By way of contrast, a compliance-based approach focuses on the capacity of negotiation and persuasion to promote compliance with regulatory rules.” MacNeil. At 282–283.

SEC, “What We Do”.

Securities and Exchange Commission—SEC, “Office of Administrative Law Judges,” https://​www.​sec.​gov/​alj. Administrative law judges were established under the Administrative Procedure Act of 1946 which “sought to ensure the ALJs’ judicial capability and objectivity by precluding agencies from evaluating the ALJs’ performance and by assigning responsibility for determining their qualifications, compensation, and tenure to the U.S. Civil Service Commission, later the Office of Personnel Management (OPM).” United States General Accounting Office, “Administrative Law Judges—Comparison of Sec and Cftc Programs,” (1995). At 4.

“In administrative proceedings, after finding violations of the securities or commodities acts or rules, ALJs are to decide which, if any, sanctions are warranted against the alleged violators.” Ibid. At 5.

Ibid. At 4.

“The parties to the proceedings are typically the SEC or CFTC and each person or firm named as a respondent in the complaint.” Ibid. At 4.

European Commission, “Public Consultation on the Operations of the European Supervisory Authorities.” At 10.

On the basis of the discussions held and the opinions exchanged by the author with his peers.

As also explained in: ESMA, “Frequently Asked Questions—a Guide to Understanding Esma.” At 8.

Ibid. At 503.

Ibid. At 503.

Ibid. At 492.

Ibid. At 492.

Ibid. At 492.

Paraphrases of “Central regulation, Local supervision” by Wymeersch, “The Reforms of the European Financial Supervisory System—an Overview.” At 253.

In February 2014 the ESMA (European Securities and Markets Authority—ESMA, “Re: Classification of Financial Instruments as Derivatives—Esma/2014/184” (2014)) recognized how a lack of uniform definition of derivative contracts in the European Union—in particular for foreign exchange forwards and physically settled commodity forwards—would prevent the convergent application of a key anti-crisis piece of legislation like EMIR [Regulation 648/2012/Eu]. In his letter to the European Commission, the ESMA’s Chairman warned how the divergences in the definitions of what constitutes a derivative contract “result in the inconsistent application of EMIR” and asked the Commission to use the implementing powers granted by Article 4(2) of MiFID I in order to clarify the definitions contained in MiFID I itself. Unfortunately, the Commission responded that due to a sunset clause contained in Article 64a of MiFID I it was not possible to address this issue through a MIFID I implementing tool, but a MiFID II implementing measure had to be awaited European Commission, “Letter to Esma on Classification of Financial Instruments—Markt/G3/Gw/Bh Ares(2014),” (2014). Leaving aside the sunset clause backstop legally preventing the Commission from unraveling this complicated situation, it is crystal-clear how in such highly sensitive cases the ESMA is powerless.

In the same vein, Fahey claims that the European Banking Authority, ESMA’s “sister”, “does not appear to establish anything close to a supranational regulator at EU level”, Fahey. At 593.

ESMA, “Frequently Asked Questions—a Guide to Understanding Esma.” At 13. See: Regulation 1095/2010, Chap. 7—Financial Provisions.

This seems to confirm the forecast made by Professors Hertig and Lee about the establishment of a European Securities and Exchange Commission which would be able “to investigate possible infringements and make its findings and recommendations public. This “soft enforcement” approach will provide incentives for Member States to undertake corrective action and also foster private litigation.” Hertig and Lee.

In a similar fashion, Professor Langevoort states how “securities law involves a combination of standard-setting and enforcement. […] standard setting and enforcement cannot be separated without a severe loss of regulatory quality: enforcement discretion is a key standard setting mechanism. And if enforcement discretion has a local bias, then a fragmented system of enforcement will create a series of gaps.” Langevoort. At 488, 501–502.

In its “ESA Consultation Paper”, with regard to supervisory convergence, the European Commission reaffirms that “In order to fully benefit from the Single Rulebook, legal acts must be interpreted and applied in a convergent and consistent manner and compliance must be supervised in a consistent way. […] It is therefore necessary to reflect on how the supervisory and enforcement tools currently available could be developed to enable the ESAs to achieve tangible results […] For example, assessing how the existing supervisory tools could better enable the ESAs to influence a change of behaviour of NCAs, to take action where an NCA refuses to act, or to mitigate potential risks to orderly markets, financial stability or investor protection.” Furthermore, the Commission states that “a reflection [should be made] on the use of the current tools and powers, and on the necessity and ways to potentially extend […ESMA’s] mandate to robustly follow up on supervisory convergence and enforcement”. In addition the Commission states that the power to carry out enforcement actions “also complements […ESMA’s] important work on supervisory convergence as it contributes to ensuring high quality financial supervision across the EU.” European Commission, “Public Consultation on the Operations of the European Supervisory Authorities.” At 7–10.

Even if it is framed in a pre-ESAs/Larosière dimension, Professor Langevoort carries out an analysis of the US SEC and raises the question whether Europe should adopt an SEC-like authority. Several hurdles are examined by Langevoort on the transplanting of the SEC in Europe, such as political, economic, cultural, and federal (Member States) issues. Langevoort concludes by stating that “Whether one admires the SEC or not, we should admit that its replication in Europe would not be particularly easy. For better or worse, a European SEC would be a markedly different creature.” Langevoort. At 506.

European Council—Heads of State or Government, “Solemn Declaration on European Union—Stuttgart 19 June 1983,” (Stuttgart Bulletin of the European Communities, No. 6/1983, 1983).