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ESMA Inspecting: The Implications for Judicial Control under Shared Enforcement

Published online by Cambridge University Press:  20 January 2017

Marloes van Rijsbergen  and
Miroslava Scholten
Marloes van Rijsbergen
Affiliation:
Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), Europa Institute, Faculty of Law, Economics and Governance, Utrecht University; M.P.M.vanRijsbergen@uu.nl, M.Scholten@uu.nl
Miroslava Scholten
Affiliation:
Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE), Europa Institute, Faculty of Law, Economics and Governance, Utrecht University; M.P.M.vanRijsbergen@uu.nl, M.Scholten@uu.nl
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Abstract

The European Securities and Markets Authority (ESMA) has received considerable academic attention for its newly acquired regulatory powers and the issues of legitimacy and controls concerning its far-reaching powers. ESMA's supervisory tasks are not less impressive but they are underinvestigated. In light of the recent English judgment on the exercise of ESMA's inspection powers in the UK, this article focuses on the question of judicial control over inspection power of ESMA. It shows that judicial control has been established in principle. However, the existing legal framework based on different national procedures allows ESMA escaping judicial control by chance or on purpose. This article argues for the necessity of addressing the identified controlling gap by, for instance, eliminating the differences or conditioning inspection-related discretion and promoting judicial cooperation. Since EU and national enforcement powers have become increasingly shared, the system of control cannot remain completely separated, as it is the case today. How the EU supervisor is to be controlled should not be up to the EU supervisor to choose.

Type
Articles
Information
European Journal of Risk Regulation , Volume 7 , Issue 3 , September 2016 , pp. 569 - 579
Copyright
Copyright © Cambridge University Press 2016

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References

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8 This article is a part of the ongoing project of Renforce on ‘verticalization of enforcement’ and accountability. There, we have analysed all EU policy areas to conclude that only three entities in the EU enjoy powers to exercise all stages of direct enforcement.

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12 European Banking Authority (EBA) and European Insurance and Occupational Pensions Authority (EIOPA).

13 Participation in and coordination of colleges of supervisors (article 21), identification and management of systemic risk and the development of resolution structures, in cooperation with the ESRB (articles 22–27), promotion of a common supervisory culture (article 29), peer review (article 30), supervisory coordination (article 31), market assessment (article 32), and informationgathering (article 35).

14 Communication from the Commission, European Financial Supervision, Brussels, 27 May 2009, COM(2009) 252 final, p. 11.

15 See http://www.esma.europa.eu/supervision/trade-repositories/list-registered-trade-repositories (last check January 2016).

16 Case No: HC-2015-001218, para 3.

17 http://www.esma.europa.eu/page/List-registered-and-certified-CRAs (last check January 2016)

18 See the recently updated organigramme: http://www.esma.europa.eu/about-esma/esma-in-short/esma-organigramme (last check January 2016)

19 ESMA refers to these two phases as ‘supervisory investigation’ and ‘IIO investigation’, see: http://www.esma.europa.eu/supervision/enforcement (last check February 2016)

20 Articles 64(1) EMIR and 23e(1) CRAR.

21 Articles 64(2) EMIR and 23e(2) CRAR

22 http://www.esma.europa.eu/supervision/enforcement (last check February 2016).

23 Ibid.

24 The Board of Supervisors is composed of ESMA's Chairperson, the heads of the national public authority competent for the supervision of financial market participants in each Member State, one representative of the Commission, one representative of the ESRB, and one representative of each of the other two European Supervisory Authorities.

25 The low number of conducted investigations could be explained by the fact that ESMA is a young agency (since 2011 in operation). Its first priorities have been internal organization and the completion of a single rulebook. Supervisory convergence is among its new targets (for 2016-2020).

26 http://www.esma.europa.eu/sites/default/files/library/2015/11/2014-544_-_decision_supervisory_measure_articles_23e_and_24_of_regulation_1060-2009.pdf (last check January 2016).

27 http://www.esma.europa.eu/sites/default/files/library/2015/11/2015-1048.pdf (last check January 2016).

28 Craig, P. (2012), EU administrative Law, Oxford University Press, p. 251 CrossRefGoogle Scholar.

29 Bovens, M.A.P. (2007), ‘Analysing and Assessing Accountability: A Conceptual Framework’, European Law Journal, 13(4), p. 463 CrossRefGoogle Scholar.

30 Ibid.

31 Ibid, p. 456.

32 Türk (2009), supra fn 6, p. 218.

33 Case 68/88 Commission v Greece (Greek Maize) [1989] ECR 2965, para 24.

34 Türk (2009), supra fn 6, p. 218.

35 Ortlep, R. and Widdershoven, R., ‘Judicial protection’, in: Jans, J., Prechal, S. and Widdershoven, R. (eds.), Europeanisation of Public Law, Europa Law Publishing, p. 333 Google Scholar.

36 Turk (2009), supra fn 6, p. 218.

37 Ibid.

38 Ibid.

39 Scholten (2015), supra fn 3.

40 In Tillack, the European Courts held that the forwarding of information by OLAF was not a reviewable act under EU law. They considered it to be for the national courts to provide judicial review of measures potentially infringing individual's rights. However, the Belgian courts rejected the application of Mr. Tillack on the basis of the understanding that they were not authorized to review the correctness of information provided by European institutions and bodies. Mr. Tillack was thus unsuccessful in seeking judicial protection in both the Belgian courts and EU Courts. In Borelli, the CJEU claimed to have no jurisdiction to decide about the legality of a national authority's decision, even when the latter was part of an EU decision-making procedure and was decisive for the outcome of a final Commission decision. The CJEU found that it was irrelevant to the question of admissibility of an action for annulment that under Italian law Borelli had no remedy against the negative opinion expressed by the national authority.

41 Articles 23c(5) CRAR and 62(5) EMIR.

42 Articles 23d(8) CRAR and 63(8) EMIR.

43 Note that according to Article 267 TFEU, any national court or tribunal may refer a question concerning the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union to the Court of Justice of the European Union. This theoretically includes the decisions from EU agencies, but it is questionable whether this would materialize in practice. National court would be likely to ask ESMA directly (Article 63(9) EMIR). Such a request may in particular relate to the grounds ESMA has for suspecting that an infringement has taken place, as well as to the seriousness of the suspected infringement and the nature of the involvement of the person who is subjected to the coercive measures. Besides, the preliminary reference procedure is not relevant at all in cases where an EU authority does not have to request authorization from a national judicial authority. This procedure would not offer any additional protection to a party under investigation.

44 According to article 2(7) of EMIR ‘trade repository’ means a legal person that centrally collects and maintains the records of derivatives.

45 Case No: HC-2015-001218, para 1.

46 http://www.legislation.gov.uk/uksi/2013/504/regulation/17/made (last check January 2016)

47 http://www.legislation.gov.uk/uksi/2011/1435/pdfs/uksi_20111435_en.pdf (last check January 2016)

48 The case can be found at http://1exagu1grkmq3k572418odoooym.wpengine.netdna-cdn.com/wp-content/uploads/2014/07/Roche-Limited-v-MHRA.pdf, Case No: CO/393/2014, (last check February 2016)

49 Ibid.

50 Ibid. para 94.

51 Eliantonio 2014, supra fn 6.

52 Bovens (2007), supra fn 29.

53 Ibid; Mulgan, R. (2003), Holding Power to Account: Accountability in Modern Democracies, Palgrave Macmillan CrossRefGoogle Scholar; Behn, R. (2001), Rethinking Democratic Accountability, Brookings Institution Press Google Scholar.

54 Wissink, L., Duijkersloot, T. & Widdershoven, R. (2014), Shifts in Competences between Member States and the EU in the New Supervisory System for Credit Institutions and their Consequences for Judicial Protection, Utrecht Law Review, 10(5), p. 110 CrossRefGoogle Scholar.

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56 Case No: HC-2015-001218, para 15.

57 For a similar problem with regard to the EPPO, see Luchtman & Vervaele (2014), supra fn 10.

58 Wissink et al. (2014), supra fn 54, p. 110.

59 Ibid. See also: http://www.afm.nl/nl-nl/professionals/doelgroepen/adviseurs-bemiddelaars/toezicht-onderzoek/onderzoek (last check January 2016).

60 Wissink et al. (2014), supra fn 54, p. 110.

61 Ibid. See also Article 13 of the SSM Regulation.

62 Jans et al. (2015), supra fn 6.

63 Moloney, N. (2011), ‘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(2), p. 207 Google Scholar.

64 Currently four out of the six registered TRs are London-based, see para 138 of ‘ESMA supervision of Credit Rating Agencies and Trade Repositories. Annual Report 2014 and Work Plan’ available at: http://www.esma.europa.eu/sites/default/files/library/2015/11/esma-2015-280_cra_and_tr_annual_report_2014_and_supervisory_work_programme_2015.pdf (last check January 2016).The “Big Three” CRAs, namely Moody’s, Standard and Poor’s, and Fitch still dominate, even though far more agencies now operate in Europe to offer competition; they all are situated in London (ESMA supervision of Credit Rating Agencies and Trade Repositories Annual Report 2014 and Work Plan: http://www.esma.europa.eu/supervision/credit-rating-agencies/risk (last check January 2016).

65 Luchtman & Vervaele (2014), supra fn 10, p. 142, 149.

66 Ibid.

67 In this light, another relevant question becomes whether the delegation of the inspection power is lawful in the first place in the sense that if it conforms the ESMA-short selling case (C-270/12). There, the Court allowed delegating discretionary (decision-making) powers to ESMA as long as the discretion is limited (Scholten and van Rijsbergen (2014a), supra fn 1, p. 394). Concerning the inspection power, no ‘delineating conditions’ have been imposed on ESMA to make the specified choices.

68 M. Scholten (2014), The Political Accountability of EU and US Independent Regulatory Agencies, Brill.

69 Rowe (2009), supra fn 4, p. 187. “The question here is whether administrative supervision should extend to the examination of the evaluative judgment operating in such cases and of the substance of discretionary decisions, as well as of the purely legal limits of discretionary action.”

70 This could also take part in the future EU administrative act discussed within the Research Network on EU administrative law (ReNEUAL).

71 M. Shapiro (1992), ‘The Giving Reasons Requirement’, University of Chicago Legal Forum 1992, 179-221, p. 180-181.

72 Ibid, p. 220.

73 “There can be no accountability without transparency; rather accountability presumes transparency as a precondition” ( Verhey, L., Claes, M. and Broeksteeg, H. (2008), Political Accountability in the European Union: Conceptual Analysis and Future Prospects, in: Verhey, L., Broeksteeg, H. and Driessche, I. van den (eds.), Political Accountability in Europe: Which Way Forward?: A Traditional Concept of Parliamentary Democracy in an EU Context, Groningen: Europa Law Publishing, p. 316 Google Scholar.)

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75 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2014-0096+0+DOC+XML+V0//EN (last check February 2016).