Pat on the Shoulder or Real Empowerment? New ESMA Jurisdiction in No-Action Letters Compared with the SEC Experience

Q2 Social Sciences

European Business Law Review Pub Date : 2022-07-01 DOI:10.54648/eulr2022033

Etka Atak

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Abstract

No-action letters have been in use in the US by the Securities and Exchange Commission (SEC) for over 50 years. Intrigued by the usefulness and the agility provided by the no-action letters, market participants have made calls to introduce a similar competence/power for the European Securities and Markets Authority (ESMA). ESMA was eventually given the possibility to issue no-action letters. Arguably, the new power stands to be an amalgam of the already existing powers of ESMA brought together under one article. This article proposes that the new power is not free from accountability and efficacy problems and that some amendments are needed to address this dangerous lack. The dearth of scholarship on the no-action letters in the EU coupled with ESMA starting to issue its first no-action letters makes analysing this issue all the more pressing. In setting the scene, the article describes the no-action letters used by the SEC. The article then analyses ESMA as an EU agency and sets out its regulatory remit. Thereafter the new no-action power of ESMA is explained and compared with the established practice in the US. The article finally concludes by pointing out the deficiencies of the new power of ESMA and makes suggestions to improve its efficacy and accountability. Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives

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拍拍肩膀还是真正的授权？无诉讼信函中新的ESMA管辖权与SEC经验的比较

50多年来，美国证券交易委员会（SEC）一直没有使用任何行动信函。由于对不采取行动的信件所提供的有用性和灵活性感兴趣，市场参与者呼吁为欧洲证券和市场管理局（ESMA）引入类似的能力/权力。ESMA最终有可能发出不采取行动的信函。可以说，新的权力是ESMA现有权力的混合体，这些权力汇集在一条之下。这篇文章提出，新权力并非没有问责制和效力问题，需要进行一些修正来解决这种危险的不足。欧盟缺乏关于不采取行动的信件的奖学金，加上ESMA开始发布其第一封不采取行动信件，分析这一问题变得更加紧迫。在设置场景时，文章描述了美国证券交易委员会使用的不采取行动的信件。然后，文章分析了ESMA作为欧盟机构的情况，并阐述了其监管范围。在此基础上，对ESMA新的不作为权进行了解释，并与美国的既定做法进行了比较。文章最后指出了ESMA新权力的不足，并提出了提高其效力和问责制的建议。中央证券存托机构、处置、法律和政策考虑、处置目标、与CSDR的互动以及其他协调举措

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来源期刊

European Business Law Review Social Sciences-Law

CiteScore

1.10

自引率

0.00%

发文量

期刊介绍： The mission of the European Business Law Review is to provide a forum for analysis and discussion of business law, including European Union law and the laws of the Member States and other European countries, as well as legal frameworks and issues in international and comparative contexts. The Review moves freely over the boundaries that divide the law, and covers business law, broadly defined, in public or private law, domestic, European or international law. Our topics of interest include commercial, financial, corporate, private and regulatory laws with a broadly business dimension. The Review offers current, authoritative scholarship on a wide range of issues and developments, featuring contributors providing an international as well as a European perspective. The Review is an invaluable source of current scholarship, information, practical analysis, and expert guidance for all practising lawyers, advisers, and scholars dealing with European business law on a regular basis. The Review has over 25 years established the highest scholarly standards. It distinguishes itself as open-minded, embracing interests that appeal to the scholarly, practitioner and policy-making spheres. It practices strict routines of peer review. The Review imposes no word limit on submissions, subject to the appropriateness of the word length to the subject under discussion.