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  • Cited by 6
  • Print publication year: 2012
  • Online publication date: December 2012

1 - Crisis-driven regulatory reform: where in the world is the EU going?*

Summary

Introduction

Never waste several good crises . . .

On the surface at least, crises shake the status quo and provide space for new ideas to emerge. Complacent assumptions are overturned, policy learning takes place and there is a sharpened focus on the concerns that demand a robust response. The issues acquire the degree of political salience that is needed to push through a reform agenda.

The international regulatory response to the global financial crisis of 2007–9 appears to support the idea of crisis as a game-changer. The world's leading economies have adopted an apparently ambitious agenda for international financial regulation and have put in place institutional changes designed to bolster implementation of international standards and to reinforce surveillance. They have also been putting in place far-reaching reforms at national or regional level. The United States has passed a mammoth piece of legislation with a view to reforming Wall Street and reinvigorating financial regulation. The European Union (EU) is being no less determined in the extent of its reform program, although it is proceeding on a measure-by-measure basis rather than attempting to deal with everything in a single instrument. A common feature of the reforms on both sides of the Atlantic is that implementation is dependent on the adoption of a large number of detailed rules, many of which are still under development at the time of writing (Spring 2012). The level of government intervention in markets that is involved in these financial reform packages is far removed from mainstream policy preferences of just a few years ago. On the European side, moreover, the pace of both coordination between Member States and centralization at EU level has accelerated. Spillover effects from the reforms that are eventually put in place to resolve the euro area sovereign debt crisis could lead to a still further concentration of EU regulatory power with respect to the financial markets. Since an effective solution to the euro area crisis remains elusive at the time of writing, the possibility that the reforms that are eventually adopted could reverse the trend by triggering a reining in of EU regulatory authority and perhaps even a “repatriation” of powers to Member States must be acknowledged. However, this appears to be a less likely outcome than an expansion and reinforcement of the existing tendencies.

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Griller, S. and Orator, A., “Everything Under Control? The ‘Way Forward’ for European Agencies in the Footsteps of the Meroni Doctrine,”European Law Review, 35 (2010), 3–35
Moloney, N., “The European Securities and Markets Authority and Institutional Design for the EU Financial Market – A Tale of Two Competences: Part (2) Rules in Action,”European Business Organization Law Review, 12 (2011), 177–225
Schammo, P., EU Prospectus Law (Cambridge University Press, 2011) pp. 30–6
Schammo, P., “EU Day-to-Day Supervision or Intervention-Based Supervision: Which Way Forward for the European System of Financial Supervision?,” Oxford Journal of Legal Studies, 2012
In accompanying FAQ commentary, the Commission suggested that the Meroni doctrine lay behind this proposed arrangement. The CRA Regulation (as amended by Regulation (EU) No. 513/2011)
European Parliament, Resolution on the Establishment of ESMA (T7–0270/2010) (partial vote)
European Commission, European Agencies – The Way Forward (COM(2008) 135), p. 5.
European Parliament, Resolution on the Financial, Economic and Social Crisis (T7–0331/2011)
European Commission, Proposal for a Regulation on Prudential Requirements for Credit Institutions and Investment Firms (COM(2011) 452), p. 15
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European Parliament, Resolution on the Financial, Economic and Social Crisis (T7–0331/2011)
European Commission, Public Consultation on Credit Rating Agencies (November 2010), p. 19
ECON, Report on Credit Rating Agencies: Future Perspectives (A7–0081/2011, Rapporteur: Wolf Klinz)
European Parliament, Resolution on Credit Rating Agencies: Future Perspectives (T7–0258/2011)
ECON, Draft Report on Credit Rating Agencies (A7–0221/2012, Rapporteur: Leonardo Domenici)
European Commission, Proposal for a Regulation amending Regulation (EC) No 1060/2009 on Credit Rating Agencies (COM(2011) 747), pp. 11–12.
IMF, A Fair And Substantial Contribution by the Financial Sector: Final Report for the G-20 (June 2010), pp. 19–21
European Commission, Innovative Financing at a Global Level (SEC (2010) 409)
European Commission, Taxation of the Financial Sector (COM(2010) 549)
European Parliament, Resolution on Innovative Financing at Global and European Level (T7–0080/2011)
European Parliament, Resolution on Financial Transaction Taxes – Making Them Work (T7–0056/2010)
Compare European Council, Presidency Conclusions, March 24/25, 2011 (EUCO 10/1/11), p. 6
European Commission, A Budget for Europe 2020 (COM(2011) 500), p. 7.
European Commission, Proposal for a Council Directive on a Common System of Financial Transaction Tax and amending Directive 2008/7/EC (COM(2011) 594).
Pignal, S., “Trichet Urges EU to Drop Tobin Tax Plan,” Financial Times, July 1, 2011, 3.
Hix, S., “The 2009 European Parliament Elections: A Disaster for Social Democrats,”EUSA Review, 22 (2009), 2–5
Sundström, E., “The Next Left: Thoughts on the European Elections 2009” in Stetter, E., Duffek, K. and Skrzypek, A. (eds.), Renewing Social Democracy: Contributions to a European-wide Debate (Belgium: The Foundation of European Progressive Studies, 2009), pp. 123–8
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Brummer, C.J., Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century (Cambridge University Press, 2012)
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European Commission, CRD IV – Frequently Asked Questions (MEMO/11/527, July 20, 2011)
Ferran, , “Capital Market Openness after Financial Turmoil,” in Koutrakos, P. and Evans, M. (eds), Beyond the Established Orders (Oxford: Hart Publishing, 2011), pp. 68–70
Leblond, P., “EU, US and International Accounting Standards: A Delicate Balancing Act in Governing Global Finance,”Journal of European Public Policy, 18 (2011), 443–61
IOSCO, Code of Conduct Fundamentals for Credit Rating Agencies (2004, amended 2008)
European Commission, Proposal for a Regulation on Credit Rating Agencies (COM(2008) 704).
IOSCO, International Cooperation in Oversight of Credit Rating Agencies (Madrid: IOSCO, March 2009)
Brown, G., Beyond the Crash: Overcoming the First Crisis of Globalisation (New York; Simon & Schuster, 2010), pp. 117–18
Mosley, L. and Singer, D.A., “The Global Financial Crisis: Lessons and Opportunities for International Political Economy,”International Interactions, 35 (2009), 420–9
IMF, World Economic Outlook: Tensions from the Two-Speed Recovery (Washington DC: IMF, 2011), p. 171
Simmons, B., “The International Politics of Harmonization: the Case of Capital Market Regulation,”International Organization, 55 (2001), 589–620
Germain, R.D., “Reforming the International Financial Architecture: The New Political Agenda” in Wilkinson, R. and Hughes, S. (eds.), Global Governance: Critical Perspectives (London: Routledge, 2002), pp. 17–35
Brummer, C., “Post-American Securities Regulation,”California Law Review, 98 (2010), 327–84
Drezner, D.W., “The Realist Tradition in American Public Opinion,”Perspectives on Politics, 6 (2008), 51–70
McMahon, D., “Global Finance: China Seeks Global Finance Pact,” The Wall Street Journal, October 11, 2010, C3.
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ECON, Report on Basel II and Revision of the Capital Requirements Directives (CRD IV) (A7–0251/2010, Rapporteur: Othmar Karas)
European Parliament, Resolution on Basel II and Revision of the Capital Requirements Directives (CRD IV) (T7–0354/2010)
European Commission, European Financial Stability and Integration Report 2010 (SEC(2011) 489), p. 6.
ECON, Report on the Proposal for a Directive as Regards Capital Requirements for the Trading Book and for Re-securitisations, and the Supervisory Review of Remuneration Policies (CRD 3) (A7–0205/2010, Rapporteur: Arlene McCarthy)
Mügge, D.L., “The European Presence in Global Financial Governance: a Principal–Agent Perspective,”Journal of European Public Policy, 18 (2011), 383–402
Enrich, D. and Cimilluca, D., “International Finance: Most Banks Seem Set on Basel Rules – For Lenders that Need More Capital, ‘Generous’ Deadline Works in their Favor,” The Wall Street Journal, September 14, 2010, C2
Blackstone, B. and Enrich, D., “International Finance: Germany Digs In Over Basel Rules,” The Wall Street Journal, July 28, 2010, C2.
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Emerson, M., Balfour, R., Corthaut, T., Wouters, J, Kaczyński, P. Maciej and Renardeu, T., Upgrading the EU's Role as Global Actor: Institutions, Law and the Restructuring of European Diplomacy (Brussels: CEPS, 2011), pp. 106–8
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European Parliament, Resolution on the Financial, Economic and Social Crisis (T7–0331/2011), paras. 27–8
Verdier, P.H., “Mutual Recognition in International Finance,”Harvard International Law Journal, 52 (2011), 55–108
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Karmel, R.S., “The EU Challenge to the SEC,”Fordham International Law Journal, 31 (2008), 1692–712
ESMA, Framework for Third Country Prospectuses under Article 20 of the Prospectus Directive (ESMA/2011/36)
European Commission, Formal Request to ESMA for Technical Advice on Possible Delegated Acts Concerning the Amended Prospectus Directive (2003/71/EC) (Ares(2011)56961 – 19/01/2011)
European Parliament, Role and Methods of Rating Agencies (A5–0040/2004)
ESMA, Guidelines on the Application of the Endorsement Regime under Article 4(3) of the Credit Rating Regulation 1060/2009 (ESMA/2011/97, March 2011).
Compare European Parliament, Resolution on Credit Rating Agencies: Future Perspectives (T7–0258/2011), para. 14
European Commission, Proposal for a Regulation on OTC Derivatives, Central Counterparties and Trade Repositories (COM 2010) 301), p. 3.
Grant, J. and Braithwaite, T., “Geithner Urges EU to Fall in Line with Derivatives Rules,” Financial Times, June 9, 2011, 12
Grant, J., “Avalanche of Rulemaking Blocks Road to OTC Clarity,” Financial Times, August 1, 2011, (Surveys), 13.
FSB, OTC Derivatives Market Reforms: Progress Report on Implementation (October 2011), p. 21
European Parliament, Resolution on the Commission Work Programme 2012 (T7–0327/2011)
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