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Part II The New EU Prospectus Rules, 16 The Approval of Prospectus: Competent Authorities, Notifications, and Sanctions »

Carmine Di Noia, Matteo Gargantini
From: Prospectus Regulation and Prospectus Liability
Edited By: Danny Busch, Guido Ferrarini, Jan Paul Franx
This chapter sets out the rules regarding competent authorities, approval of the prospectus, notification, and sanctions. It analyses the regulatory framework for prospectus approval by national competent authorities (NCAs). NCAs approve prospectuses after verifying that they are complete, consistent, and comprehensible. The delegated acts supplementing the Prospectus Regulation specify the contents of the supervisory activity at a much greater level of detail than the previous regime. However, it remains to be seen whether this will suffice to ensure an actual level playing field across the Union. Indeed, NCAs might maintain different approaches during the approval process even in the presence of ESMA's coordination efforts. Next to this, Member States retain discretion on some crucial regulatory options, and the liability regimes are often uneven across Member States. All these remaining differences create space for arbitration, and make the rules on the identification of the relevant NCA all the more important. This chapter thus analyses the legal regime for the allocation of the power to approve prospectuses from two different perspectives.

Part II Governance Structures and Regulation, 12 Corporate Governance, Financial Information, and Mar »

Carmine Di Noia, Matteo Gargantini
From: Governance of Financial Institutions
Edited By: Danny Busch, Guido Ferrarini, Gerard van Solinge
This chapter discusses public disclosure of inside information. Proper management of information is a crucial element of banks' corporate governance, and an equally challenging task. Prudential regulation and the regulatory framework on market integrity are both concerned with the circulation of information in banks and bank groups. The EU regulatory framework in market abuse — which comprises Regulation (EU) No. 596/2014 (MAR) and Directive 2014/57/EU (MAD II) — particularly restricts the possibility that inside information freely circulate, unless this is justified on specific grounds and on exceptional basis. The chapter then addresses the impact of the MAR and MAD II regime on selective disclosure of inside information on the governance of banks having their securities admitted to trading on a regulated market or a multilateral trading facility (MTF). It also identifies some of the issues concerning the uneasy relationship between MAR and bank governance.

Part V Fostering Retail and Institutional Investment, 19 Cross-border Distribution of Collective Investment Products in the EU »

Matteo Gargantini, Carmine Di Noia, Georgios Dimitropoulos
From: Capital Markets Union in Europe
Edited By: Danny Busch, Emilios Avgouleas, Guido Ferrarini
This chapter analyzes the current regulatory framework for cross-border distribution of investment funds and submits some proposals to improve it. The chapter is organized as follows. Section 2 provides a schematic description of the legal taxonomy for collective investment schemes. Section 3 addresses the EU disclosure regimes that apply to the distribution of various types of investment funds. Sections 4 and 5 consider conduct-of-business rules and, respectively, the legal framework for the allocation of supervisory powers on product regulation when fund units are distributed in more than one country. Section 6 provides some data that help assess the performance of the current framework for cross-border distribution. It then analyzes some of the residual legal rules and supervisory practices that still make cross-border distributions of funds more burdensome than purely national distributions, whether these restrictions are set forth in the country where investors are domiciled (Section 7) or in the fund's home country (Section 8).

Part I Introduction, 2 Looking for New Lenses: How Regulation Should Cope with the Financial Market Infrastructures Evolution »

Carmine Di Noia, Luca Filippa
From: Financial Market Infrastructures: Law and Regulation
Edited By: Jens-Hinrich Binder, Paolo Saguato
This chapter traces the evolution of financial market infrastructures (FMIs) mainly exchanges, central counterparties, and central securities depositories in the last 30 years. Technological innovation and the structural reforms that supported cross-border trade supported the global expansion of FMIs over the past decades. The FMIs landscape went through substantial changes not just in their business models but also in ownership structures. While exchanges, central counterparties, and central securities depositories, for a long time, used to be either public entities or mutual enterprises, they have since been transformed into for-profit companies, in many cases listed on stock exchanges. What used to be a monopolistic market structure has become a highly competitive, globalized market, where one provider's services easily can be substituted by alternatives in a large variety of marketplaces. In addition to providing indirect services to financial intermediaries, FMIs increasingly have come to offer and distribute services directly to wholesale and even retail investors, thereby reducing transaction costs and enhancing efficiency. All of this has a dramatic impact on regulation and supervision: the traditional micro-prudential and investor protection issues are now more and more intertwined with macro-stability and antitrust issues which may lead to some reshape in the institutional architecture, especially in the framework of Capital Markets Union in the European Union.

Part II The New European Supervisory Architecture, 7 The New Structure of Financial Supervision in Europe »

Carmine Di Noia, Maria Chiara Furlò
From: Financial Regulation and Supervision: A post-crisis analysis
Edited By: Eddy Wymeersch, Klaus J Hopt, Guido Ferrarini
7.01 The new supervisory package is a dramatic contribution to improve financial macro- and micro-stability: this is undeniable and it is shown in other chapters of this book. That is why this chapter focuses on the other side of the coin: the half-empty glass of the package, what could have been done but was not. It is important, as soon as possible, to strengthen the powers of ESAs in drafting recommendations and rulebooks, to improve their governance and, in the long term, to shift to a system of supervision by objective (an ‘n-peaks’ system). In case of...

Part III Trading, 13 SME Growth Markets »

Rüdiger Veil, Carmine Di Noia
From: Regulation of the EU Financial Markets: MiFID II and MiFIR
Edited By: Danny Busch, Guido Ferrarini
This chapter considers SME growth markets, introduced under MiFID II as an important strategy to improve access to finance for SMEs in Europe. SME growth markets should be more flexible than regulated markets, but the authors submit this will not be the case: the regime for these will consist of strict rules on insider trading and market manipulation which are subject to supervision by NCAs. These rules, and a disclosure regime ensuring the publication of price relevant information, are important to ensure investor confidence. However, the authors argue that it is neither necessary nor recommendable to apply the respective disclosure obligations under the MAR; instead, a system based on current event reports is sufficient in order to tackle information asymmetries on SME growth markets. The authors conclude that the disclosure regime in Europe should be re-assessed with the aim of allowing market operators to experiment with alternative disclosure obligations.