In the wake of radical and far-reaching legal, market, and institutional reforms which followed the completion of the Financial Services Action Plan, the EC regime for securities regulation now governs Community financial markets and has almost replaced national law in this area. This long-awaited second edition of EC Securities Regulation considers the extensive new regime in its legal, institutional, political, and market context and assesses the forces which have shaped it.

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This collection of essays has been compiled in honour of Professor Eddy Wymeersch on the occasion of his retirement as professor at Ghent University. His main international academic peers explore developments on the crossroads of company law and financial regulation in Europe and the United States, providing a unique view on the dynamics of regulatory competition in an era of economic globalisation, whether in the fields of rulemaking, organising the mobility of capital or the enforcement of rules. The deepening of European financial integration and the transatlantic regulatory dialogue has generated new paradigms of rule-setting in a multinational framework and reinforced the need to develop adequate instruments for co-operation between regulators. Regulators increasingly use concepts such as equivalence or mutual recognition to regulate cross-border relations. 

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The discourse of 'Better Regulation' is a hot topic, intimately associated with the drive for cost savings and a more efficient economy. In the UK and in the EU, rule-makers have lately endeavoured to achieve a more satisfactory balance between the demands of proper protection from market failure and inequity on the one hand, and commercial freedom and the potential for innovation on the other. But who is the regulator listening to, and what effect does this have on the regulatory pattern governing the integrating EU market? What is best practice in the matter of regulatory assessment. The essays in this collection explore these and other questions and will foster greater understanding of UK and EU regulation, the accountability issues involved, and problems of enforcement. It is no coincidence that since efforts to construct a Constitution for Europe have stalled the attention of policy-makers, politicians and the business community has turned instead to the quest for Better Regulation - or perhaps, it might be said, a "Better European Union".

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The Transatlantic Financial Markets Dialogue led by the SEC and the European Commission has achieved some notable successes, particularly with respect to the consolidated supervision of financial conglomerates and the development of a plan to achieve convergence in corporate financial reporting. On both sides of the Atlantic there is a clear ongoing commitment to the Dialogue as a key mechanism for the development of efficient and credible regulatory solutions that guarantee effective investor protection and a high level of business efficiency. This paper reports on a two-day roundtable discussion that took place at Cambridge University, UK, in September 2005 to explore ways in which the academic community can contribute to this transatlantic debate. Lively discussion between the policymakers, regulators, market participants and academics who attended the roundtable yielded a number of thematic concerns, which, the paper suggests, could form the basis of a programme for further work. Finally, the paper announces the establishment of a seminar series, to be based in the UK, on the Transatlantic Financial Services Regulatory Dialogue and invites contributions.

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After a hectic period of law reform, which has also provoked major governance reforms in the form of significantly increased levels of transparency and market consultation and major institutional innovations (with allied accountability and governance risks), the 1999 Financial Services Action Plan (FSAP)1 has now been completed. It has radically transformed the regulatory landscape for financial services in the EC, and set a seal on the recharacterization of EC financial services law from a minimum harmonization-based market construction regime to a highly interventionist and increasingly sophisti-cated market regulation system. In particular, the coincidence of legislative reform under the FSAP with the development of a new institutional process for law-making, which has rapidly become embedded in the financial market architecture (the Lamfalussy process),2 produced a reform agenda of immense depth and range. The FSAP period has also seen the use and development of a wide range of regulatory tools in EC financial services policy in line with the growing sophistication of the regulatory regime. While disclosure has long been a key policy tool of EC financial services law, the FSAP saw a closer focus on conflict of interest management across the financial sector, on more interventionist controls such as transparency, suitability, and best execution requirements, and on calibrating regulation to different investor profiles and different market risks. This article considers a selection of key recent developments.

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EU policy in the area of corporate governance and capital markets is being reoriented. Harmonization is less frequently seen as a concept in company law; regulatory competition is on the rise; and experiments in soft law are being carried out. Several Member States have recently reformed their corporate laws, wither as a reaction to financial scandals or in an effort to enhance investment. Convergence has increased as a result, particularly towards Anglo-American standards. Yet differences still exist, profoundly rooted in national systems of corporate governance. By contrast, capital markets law would seem to be an exception, having undergone intense harmonization in the last few years through the Lamfalussy regulatory architecture. Nonetheless, a European system of securities regulation is not yet in place. Regulation is predominantly domestic, while private laws affecting capital markets are still divergent.  This volume examines the ongoing debate from an interdisciplinary perspective. Part 1 explores the political determinants of corporate governance and evaluates likely convergence and the role of regulatory competition. Part 2 considers the Markets in Financial Instruments Directive (MIFID) and its central role in harmonizing EU securities trading. Part 3 analyzes the MiFID more deeply and explores other measures including the Prospectus and Transparency Directives. Part 4 offers future perspectives on the post-FSAP era. 

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This article considers the burgeoning hedge fund challenge in the context of the post-FSAP regulatory and supervisory environment in the EC securities market. While it considers hedge fund risk, it also uses hedge funds as a case study to examine the resilience of the EC’s new regulatory and supervisory regime. Four questions are considered: What are the appropriate elements of an EC response to the hedge fund risk chain? Is the EC institutional framework sufficiently robust for the hedge fund challenge? What is the appropriate response to retail investor access risks? What is the appropriate response to the market stability risks raised by hedge funds’ large, undisclosed positions across markets? The hedge fund test reveals considerable weaknesses in the post-FSAP regulatory and supervisory structure. The EC’s response is likely to be revealing as to the sophistication of its policy-making structures post-FSAP.

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This paper shows how clear divergences arise across the EU in how executive remuneration is structured. Sharp differences also occur in the adoption of best practices in pay-setting and in the disclosure of executive pay. These divergences are broadly in line, as agency theory predicts, with block-holding and dispersed ownership governance profiles. While the EU has recently adopted two important 2004 Recommendations on executive pay, the paper argues that EU-led reforms should be undertaken with care. Harmonization should be limited and only address disclosure. Disclosure is central to the adoption of effective incentive contracts in that it can manage the particular agency costs of executive pay, across dispersed and blockholding systems, without intervening in governance choices and structures. Any other interventions in the pay process carry the risk of distorting competition and interfering with the dynamics of different ownership structures and economic contexts.

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This essay argues that the 2004 Markets in Financial Instruments Directive, the investment services cornerstone of the Financial Services Action Plan, represents a bold attempt to build a pan-EU retail investor culture, relying on the transformative effects of law. While the institutional markets have attracted most attention under the FSAP, this strategy represents a sharp change in EU policy, is ambitious given the state of the retail markets and provokes important questions as to the role of law in generating retail activity and the role of the retail investor in developing effective and strong EU capital markets. This essay examines how MIFID attempts to build a retail investment culture through law, the market reality behind this policy shift, what the role of law is in this process and what the emerging retail regime suggests as to the characteristics of the emerging ‘EU retail investor’ as a target of regulatory policy and engine of retail market integration. The newly adopted MIFID conduct of business regime lies at the heart of this ambitious retail agenda and is used as a case study in this analysis. The risks and costs of this approach are, however, high given the unproven relationship between law and investor activity, whether domestic or pan-EU. The essay therefore considers whether this new regulatory and policy strategy on the retail investor is sufficiently nuanced and, in particular, whether, given the risks of imposing inappropriate rules on an immature marketplace, it is matched by appropriate retail investor governance.

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The European Union's 1999 Financial Services Action Plan (the FSAP)an ambitious reform agenda of forty-two measures, was designed to provide the regulatory underpinning for a single deep and liquid capital market, in which pan-EU market actors are regulated by their home Member State under harmonized rules. This single capital market would lower the cost of capital, unlock funding sources for companies, and increase returns on savings, while widening choice and stimulating competition in the pan-EU financial services industry. After a surge of legislative activity over the last months of 2003 and through early 2004, the FSAP is on track for timely completion in mid-2004, as called for by the March 2003 Brussels European Council. The closing of the current session of the European Parliament in spring 2004, combined with a sharp political focus on the financial markets post-Enron and in the wake of Parmalat, has concentrated EU attention both inter-institutionally and in the market place on delivery of the outstanding measures.1 With the adoption of the cornerstone Financial Instruments Markets Directive in April 2004, the FSAP is now, in large part, complete. Implementation should be achieved across the EU by 2006.

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This article considers the regulation of executive pay practices in listed companies in the European Union and the empirical evidence of pay practices, based on the FTSE Eurotop 300 membership’s annual report for 2001. The analysis is placed in the context of the dispersed ownership/blockholding ownership faultline which runs across EU corporate governance, and in light of recent EU initiatives, particularly the Commission’s May 2003 Company Law Action Plan and the 2004 Consultation on Executive Remuneration. The outstanding feature of executive pay in the EU is the extent to which it reflects the interconnection between pay and corporate governance or ownership structures. Executive pay, regarded as a management incentive contract, is a key agency-cost control mechanism in dispersed ownership systems. Legal controls on pay are accordingly at their most sophisticated, in terms of promoting the adoption of an optimal contract for shareholders, in those EU Member States where dispersed ownership dominates. These systems also see the heaviest reliance in practice on high-powered, equity-based, incentive-driven pay contracts. In blockholding systems, controlling shareholders can, in theory, monitor management directly without the need for an incentive contract. Pay controls are accordingly less sophisticated and, as revealed by the FTSE Eurotop 300 evidence, the prevalence of high-powered equity-based incentive contracts is reduced. Different concerns arise, however, as to the protection of minority shareholders from controlling blockholders.

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In this article, the authors fill a gap in the legal literature surrounding post-Enron corporate governance reform by focusing on the need for enhanced shareholder voice in the auditing process. The authors expand on Anand's analysis in ‘Shareholder Isolation and the Regulation of Auditors’ with transatlantic perspectives on reform of the audit process. Specifically, they examine the role of the auditor, shareholder powerlessness and the post-Enron reform process in Canada and the UK, contrasting the reform movement in these countries with that in the US. Finally, the authors examine the developing auditor governance regime in the EU. In their analysis, the authors reach several important conclusions: the auditor-shareholder relationship and the duties of auditors to shareholders need to be clearly defined; shareholder isolation from the audit process severely endangers investor confidence; the independence of audit committees and auditors is not enough to protect shareholders; and, most importantly, shareholder voice should be recognised as an essential tool for promoting not only auditor independence, but also, ultimately, investor confidence. In short, the authors conclude that shareholder voice must be a part of the post-Enron reform of the audit process.

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This article considers the underlying rationales of EC securities regulation which, since the adoption of the 1999 Financial Services Action Plan, is fast emerging as a discrete and sophisticated regulatory regime for the EC capital market. In particular, it considers the regime’s growing reliance on the promotion of pan-EC investor confidence. EC securities regulation is placed in the context of the insights of behavioural economics which challenge the extent to which investor confidence is an appropriate objective for the new pan-EC regime. The powerful influences of the EC’s market construction imperative and its constitutional and institutional context, however, expand the role traditionally played by investor confidence beyond the strict regulatory context. Confidence may be an important device for deepening the Commission’s regulatory power and placing EC securities regulation on a more secure constitutional footing. A proposal is suggested for how investor confidence may be safely promoted by the new regime.

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