Soft Regulatory Capture and Supervisory Independence: A Case-Study on Wirecard

IF 1.3 Q1 LAW

European Company and Financial Law Review Pub Date : 2023-12-07 DOI:10.1515/ecfr-2023-0025

Christopher P Buttigieg, Lothar Gustav Witzel, Beatriz Brunelli Zimmermann

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Abstract

623The traditional view on regulatory capture focuses on capture as a distortion of public purpose through a malicious relationship, corruption and possible collusion between the regulator and the industry (hard capture). This paper argues that regulatory capture can arise from political and institutional conditions which do not allow or favour the supervisory independence of authorities from both the industry and the government (soft capture). This paper’s argument is illustrated through a case-study on the German Federal Financial Supervisory Authority’s (BaFin) handlining of the Wirecard AG case. The basis for the analysis are the findings from the Committee of Inquiry of the German Bundestag and the European Securities and Markets Authority (ESMA) Fast Track Peer Review (FTPR) through three lines of inquiry: (1) lack of balance sheet control; (2) the short selling ban; and (3) Wirecard AG’s stock trading by BaFin’s employees. This paper concludes that BaFin was not hard captured in the Wirecard AG case as de facto influence cannot be proven. Instead, its de jure dependency vis-à-vis the MoF (as implicitly endorsed by German law) might have contributed to a case of soft regulatory capture – especially in the aspect of the short selling ban. The paper then analyses the reforms enacted by Germany and promoted by Europe in post-Wirecard case.

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软性监管俘获与监管独立性：线卡案例研究

623 关于监管俘获的传统观点侧重于监管俘获，认为监管俘获是通过监管机构与行业之间的恶意关系、腐败和可能的串通（硬俘获）扭曲了公共目的。本文认为，监管俘获可能源于不允许或不利于监管机构独立于行业和政府的政治和制度条件（软俘获）。本文通过对德国联邦金融监管局 (BaFin) 处理 Wirecard AG 案件的案例研究来说明这一论点。分析的基础是德国联邦议院调查委员会和欧洲证券与市场管理局 (ESMA) 快速同行评审 (FTPR) 通过三条线索得出的调查结果：(1) 缺乏资产负债表控制；(2) 卖空禁令；(3) BaFin 员工买卖 Wirecard AG 股票。本文的结论是，由于无法证明 BaFin 对 Wirecard AG 事实上的影响，因此 BaFin 在 Wirecard AG 案中并没有受到严重影响。相反，其相对于财政部的法律上的依附关系（德国法律默许）可能促成了软性监管俘获的案例--尤其是在卖空禁令方面。本文随后分析了德国颁布的改革措施，以及欧洲在后 "线卡 "事件中推动的改革。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

European Company and Financial Law Review LAW-

CiteScore

1.00

自引率

16.70%

发文量

期刊介绍： In legislation and in case law, European law has become a steadily more dominant factor in determining national European company laws. The “European Company”, the forthcoming “European Private Company” as well as the Regulation on the Application of International Financial Reporting Standards (“IFRS Regulation”) have accelerated this development even more. The discussion, however, is still mired in individual nations. This is true for the academic field and – even still – for many practitioners. The journal intends to overcome this handicap by sparking a debate across Europe on drafting and application of European company law. It integrates the European company law component previously published as part of the Zeitschrift für Unternehmens- und Gesellschaftsrecht (ZGR), on of the leading German law reviews specialized in the field of company and capital market law. It aims at universities, law makers on both the European and national levels, courts, lawyers, banks and other financial service institutions, in house counsels, accountants and notaries who draft or work with European company law. The journal focuses on all areas of European company law and the financing of companies and business entities. This includes the law of capital markets as well as the law of accounting and auditing and company law related issues of insolvency law. Finally it serves as a platform for the discussion of theoretical questions such as the economic analysis of company law. It consists of articles and case notes on both decisions of the European courts as well as of national courts insofar as they have implications on European company law.