Hart Publishing, 2022. — 289 p.
This book focuses on the enforcement of EU financial law on the national and supra-national levels. Emphasis is laid on the interaction between the EU and national levels (vertical interaction), as well as between private, administrative and criminal law (horizontal interaction). The book takes a multi-jurisdiction and inter-disciplinary approach and covers a range of issues that are highly topical, such as the new EU Anti-Money Laundering regime, and the ReNEUAL model for administrative law. With contributions by leading academics and senior members of EU and national institutions, the book will be of interest to professionals dealing with financial law in their daily practice such as lawyers, bankers, policy makers and officers at supervisory authorities, but also to academics interested in fundamental questions of interaction between legal systems.
Contents
Preface
List of Contributors
List of Abbreviations
Table of Cases
Table of Statutes
1. Enforcement of EU Financial Regulation and Investor Protection
Matthias Haentjens, Rijnhard Haentjens and Jan Crijns
1.1. Enforcement of Financial Regulation
1.2. EU Financial Regulation
1.3. EU Financial Supervision
1.4. Example: Investor Protection
1.5. Conclusions
2. The Implementation and Enforcement of European Financial Regulation
Eddy Wymeersch
2.1. Introduction
2.2. National Rules and EU Rules as Applicable to Financial
Institutions and Transactions
2.3. The Impact of National Company Law on EU Banking Law
2.4. The Implementation of the Banking Regulatory System
2.4.1. Instruments for the Implementation of Banking Regulation
2.4.2. Internal Company Monitoring
2.5. Implementation of EU Banking Law – Adapting National Law to EU Law
2.6. The EU-Wide Implementation of EU Public Financial Supervision
2.6.1. The Overall Structure of the EU Banking Supervisory System
2.6.2. Decentralised European Banking Supervision: The LSI Regime
2.6.3. Centralised Banking Supervision: The ECB Supervises the Significant Institutions
2.7. Judicial Review of Decision-Making in Banking
2.7.1. Layers of Judicial Review
2.7.2. Leading Judicial Decisions on Banking Supervision
2.7.3. Preliminary Rulings
2.7.4. Court Cases Dealing with Non-Binding Acts
2.8. Non-Judicial Review of Supervisory Decisions
2.8.1. The Administrative Board of Review
2.8.2. The Mediation Panel
2.8.3. The ESA’s Board of Appeal
2.9. Other Contributions to the Implementation of Financial Regulation
2.10. The Impact of Market Practices on Regulatory Implementation
2.11. Conclusion
3. Some Thoughts on the Ratio, Creation and Enforcement of EU Financial Services Regulation in Private Law
Karl-Philipp Wojcik
3.1. Introduction
3.2. The Creation of EU Financial Services Regulation and the Attempt to Categorise its Interaction with Private Law
3.2.1. Objectives of EU Financial Services Regulation
3.2.2. Principles of EU Financial Services Regulation and its Creation
3.2.3. Ways in which EU Financial Services Regulation may Impact Private Law
3.3. Enforcement
3.3.1. Enforcement of EU Financial Services Rules through Administrative Authorities
3.3.2. Enforcement of EU Financial Services Rules in the Vertical Relationship between the EU and Member States
3.3.3. Enforcement of EU Financial Services Rules in Horizontal Relationships between Private Parties
3.4. Conclusion
4. Enforcement of Qualitative Capital Requirements for Banks
4.1. Introduction
4.2. Horizontal Effect of European Regulations
4.3. Ex Ante Vetting of Conformity of CET1 Instruments with the CRR Rules
4.4. ECB Guidance on the Review of the Qualification of Capital Instruments as AT1 and Tier 2 Instruments
4.5. EBA Involvement in the Assessment of CET1 Instruments
4.6. Public Law Impediments Affecting Private Law Relationships
4.7. EBA June 2021 Report on the Monitoring of AT1 Instruments of EU Institutions
4.8. Two Legal Cases Concerning Qualitative Capital Requirements
4.8.1. LBG Capital No 1 Plc and LBG Capital No 2 Plc v BNY Mellon Corporate Trustee Services Limited
4.8.2. Crédit Agricole and Affiliates v ECB
4.9. Concluding Remarks
5. Administrative Enforcement of European Financial Regulation
Saskia Nuijten
5.1. Preface
5.2. Scenarios
5.3. Rules and Guarantees for Enforcement by European Supervisory Authority
5.3.1. Good Administration and Charter
5.3.2. Specific Regulation
5.3.3. Regulation on EU Administrative Procedures
5.3.4. ReNEUAL Model Rules
5.3.5. Enforcement Based on National Law
5.4. Enforcement by National Supervisory Authorities and
Cooperation between Member States
5.5. Equality
5.6. Conclusion
6. The EU Courts as Juges de Droit National in the Single Supervisory Mechanism?
Jouke Tegelaar
6.1. Preface
6.2. Composite Procedures and National Law
6.2.1. General
6.2.2. Composite Procedures in the SSM
6.3. Division of Jurisdiction in Composite Procedures
6.3.1. The Court’s Doctrine on the Division of Jurisdiction: A Two-Track Approach
6.3.2. The First Track: Borelli
6.3.3. The Second Track: Berlusconi
6.4. The EU Courts as Juges de Droit National in the SSM?
6.4.1. Jurisdictional Limits
6.4.2. A Blind Spot to be Remedied? Conflicting Principles
and Practical Solutions
6.5. Concluding Remarks
7. Criminal Enforcement of EU Financial Standards
Daan Doorenbos
7.1. Introduction
7.2. EU Dominates Financial Legislation – Also Financial Criminal Law?
7.3. Criminalisation of Breaches of EU Standards
7.3.1. EU Regulations
7.3.2. EU Directives
7.4. Blanket Criminal Legislation
7.4.1. Introduction
7.4.2. Use and Admissibility
7.4.3. Legal External Borders
7.4.4. Short-Circuiting between ‘Referencing Provision’ and ‘Referenced Provision’
7.5. Awareness of Standards and Liability
7.6. Conclusion
8. Full Cooperation versus the Right not to Incriminate Oneself: Oil and Water?
Joost Nan
8.1. Introduction
8.2. The Right not to Incriminate Oneself; Article 6 ECHR
8.2.1. Introduction
8.2.2. Criminal Charge
8.2.3. Improper Compulsion
8.2.4. Consequence of a Violation
8.2.5. Three Specific Situations
8.2.6. A Broader Scope
8.2.7. Summary 8.3. The Right not to Incriminate Oneself; EU Law
8.3.1. Introduction
8.3.2. TEU and the Charter
8.3.3. Directive on the Strengthening of Certain Aspects of the Presumption of Innocence
8.4. Intermezzo; Legal Persons
8.5. Full Cooperation with Regard to Money Laundering, Terrorist
Financing and Market Abuse
8.5.1. Introduction
8.5.2. Money Laundering or Terrorist Financing
8.5.3. Market Abuse
8.5.4. Summary
8.6. Analysis
8.6.1. Introduction
8.6.2. Is the Privilege against Self-Incrimination Applicable in the Field of Financial Law?
8.6.3. Consequences of Applicability
8.6.4. Two Examples
8.6.5. Legal Persons
8.7. Concluding Remarks
9. The Enforcement Paradox of the Ne Bis in Idem Principle in EU Criminal
Financial Law: Not what it Seems
Rijnhard Haentjens
9.1. Introduction
9.2. The ECtHR and the Ne Bis in Idem Principle
9.2.1. General Remarks
9.2.2. Right not to be Prosecuted or Tried Twice
9.2.3. Multiple Criminal Proceedings with No Final Decision
9.3. The ECJ and the Ne Bis in Idem Principle
9.4. Concluding Remarks
10. European Strategies against Money Laundering: A Critical Overview
of Current and Future Enforcement
Silvia Allegrezza
10.1. Introduction – From Inactivity to Scandal-Driven Reforms
10.1.1. The Role of the European Union
10.1.2. The Mission of the New AMLA
10.1.3. EPPO
10.1.4. Aim of this Chapter
10.2. The Matrix: Decoding the Complexity of a Multilevel Enforcement Strategy
10.3. The Impact of Time: Prevention versus Repression?
10.3.1. Introduction
10.3.2. Information Exchange
10.3.3. Initiatives to Improve Information Management
10.4. One World, a Multidimensional Space to Launder Money
10.4.1. Introduction
10.4.2. Criminal Enforcement Falling Short
10.5. Differentiating Sanctions: Limits of a Double-Track System
10.6. A Stronger Criminal Law Response for Money Laundering? A Critical Analysis of the Directive on Combating Money Laundering Using Criminal Law
10.7. The Controversial Relationship between AML Strategies and Data Protection
10.8. Divergent in Defence: Conclusions
11. Concluding Remarks on Interdisciplinarity and Fairness
in Financial Law
Jan Crijns, Matthias Haentjens and Rijnhard Haentjens
11.1. Introduction
11.2. Interdisciplinarity of Financial Law and its Enforcement
11.3. Balancing Effectivity and Fairness in Financial Law
11.4. Conclusion
Bibliography
Index