B0793 - EUROPEAN CAPITAL MARKETS AND BANKING REGULATION

Course Unit Page

SDGs

This teaching activity contributes to the achievement of the Sustainable Development Goals of the UN 2030 Agenda.

Quality education

Academic Year 2022/2023

Learning outcomes

This course shall offer a thorough introduction to the fundamentals of European financial law in a comparative perspective. It shall focus on the both the institutional design and the regulatory framework on soundness and stability. The idea is to offer a systematic approach away from sectoral (i.e. banking-securities) distinctions. The course differentiates between the regulation of the relationships in the Supply-and-Demand of funds, on one side, and of Market Infrastructures that support the system, and ensure its soundness and stability on the other side. With this in mind, the course helps identify the different philosophies underpinning different rules, which may follow a market-reliant, principal-agent and market-design, as well as an ex ante or ex post approach. At the end of the course the student shall gain a comprehensive understanding of the institutional design of financial markets, especially in the EU.

Course contents

Most, if not all, relevant aspects of international and European financial law have been undergoing reform in the last few years and some are in the process of being reconsidered within the CMU initiative and to complete the Banking Union. This course endeavours to offer a comprehensive picture of European financial law as it stands today and thus to offer a chart to navigate it; it should help understanding its underpinnings, organise (as simply as possible) internal linkages and test the overall consistency of the system. In doing so, this course revolves around a simple idea: to properly understand European financial rules, it is necessary to identify the paradigms that like “deep currents” run underneath them, in order to capture their proper meaning and finality and to measure their consistency and proportionality. This course is meant to be, therefore, a conversation about the rationale(s) of the rules and tools of European financial law as well as on the needs for future simplification and reform (proposals for simplification are part of the exercise).

Detailed course program

In 2010 Europe set the ground for the upheaval of entrenched national financial laws. Using in a quite unconventional way Articles 114, 290 and 291 TFEU, unprecedented rule making authority was conferred upon the European Commission (EC) and three newly established financial supervisory authorities (EBA, ESMA and EIOPA), called to deliver a single rule book in banking, securities and insurance, respectively. Savvy institutional engineering inspired by the ECB model for monetary governance under the Treaty of Maastricht made it possible to centralise regulatory functions without expropriating of their decentralised role the existing national authorities, who are being made an active component of the three European authorities. This process of “decentralised integration” has progressed further, within the Euro system, in 2013 in the banking sector with the establishment of the single supervisory mechanism (SSM) for micro and macro prudential bank supervision, followed in 2014 by the establishment of the single resolution mechanism (SRM); this paved the way for the Capital Markets Union (CMU). In all likelihood, this complex regional system offers now the most advanced experiment of multilevel governance of financial markets worldwide. It will be thoroughly examined and discussed in class, putting it in the context of global financial regulation and shall be measured against comparative institutional settings in North America, South America and Asia-Pacific.

At the same time, to navigate European financial regulation it is necessary to have a clear understanding of its micro and macroprudential regulatory underpinnings. We see financial regulation, and in particular European regulation, as a problem-solving tool. Its major goal is to ensure that the financial system properly functions as an efficient mechanism to channel funds from persons who have them to persons who need them, and can make the best use of them. To do that, financial regulation needs to lay down some basic rules that determine the behaviour that may be expected by those who supply funds from those who demand them and vice-versa,as well as the behaviour that both can expect of the entities and markets that operate as a go-between between them. The more concrete goals of those basic rules are to (a) facilitate transactions, (b) foster the parties’ confidence in the system, and (c) protect the system’s stability. These goals pervade the whole system of rules, and constitute the common denominator, the consensus about what that system of rules should achieve. With the consensus in mind, there are different approaches to pursue those goals, which give different weight to them, or see their relationship in different terms. Although each reform may pursue a very concrete strategy, with a very specific understanding of the relationship between the above goals, these strategies tend to follow one of three paradigms, or approaches, which we will use for explanatory purposes, following an “incremental” narrative, from the least to the more interventionist.

a) The market-reliant or market-based approach: an example is offered by the private ordering of relationships for the payment of sums, the holding of property rights over financial instruments, or the hedging or securities financing agreements via ISDA or ICMA standard model contracts, which help shape current financial markets’ infrastructures;

b) The principal-agent approach. In the case of financial markets’ infrastructures, this paradigm is present in the specific rules applicable to the governance of banks and financial institutions as stand-alone entities, regarding risk-management functions, or remuneration of key personnel. It is also present in the rules that ordain the relationship of those financial intermediaries vis-à-vis their clients, and which have a “fiduciary” inspiration, including duty of custody, the duty to avoid conflicts of interest, the duty of best execution, the duty to give proper advice, the duty of loyalty, the duty of prudent management.

c) The market-design paradigm. This is the case, for example, of “product manufacturing and distribution” rules, or the “consumeristic” evolution of some transparency rules concerning financial instruments Regarding market infrastructures, a market-design approach is present in the rules that deal with the risk posed by financial institutions, both from the perspective of the prevention of actions that may put their clients and the system at risk (prudential rules), and that of dealing with the institution once it has failed (resolution rules). Regarding the infrastructures’ “links” a market-design view is present in the gradual centralization of payment systems by central banks, the imposition of centralized clearing and settlement for certain products, such as OTC derivatives, the pre-determination of the types of venues where financial instruments may be traded, or the increasingly “structural” and/or “consumeristic” approach applied to some conduct duties of financial intermediaries vis-à-vis their clients.

In addition to the market-reliant, principal-agent and market-design paradigms, there is, however, another dimension of the problem that needed to be properly captured. This is the fundamental distinction between ex ante and ex post approaches. Indeed, aside from the three paradigms discussed above, it is further necessary to distinguish whether problem-resolution is meant to be preventative or remedial. Ex ante approaches rely on the applicability of the rule before the problem arises, whereas ex post views focus their attention on the way we deal with the problem once it has arisen.

Based upon the foregoing, the course will cover the following main issues:

I) Framing the Institutional Context

First Pillar: Principles and rules in the law of finance.

Second Pillar: The European and national supervisory architecture in the law of finance

Focus: Case C-270/12 weighted against Meroni and Romano

Third Pillar: Political, administrative and legal accountability. Values and constitutional dialogue

II) Fundamentals of the substantive law of finance

The Single Rulebook on banking: the banks as a regulated going concern

Basle into EU law: CRR, CRD IV, BRRD main objectives and overarching principles. The reform: CRR2, CRD5, BBRD2

Focus: Proportionality in banking

BRRD Principles of banks recovery and resolution. BRRD2

Focus: Banco popular case

CMU Principles and overview of its several components: the interplay between Banking Union and Capital Markets Union.

III) Selected topics concerning regulatory challenges

Fintech, shadow banking and the regulatory conundrum.

Green New Deal and the law of finance.

Readings/Bibliography

Compulsoryreadings and teachingaids:

(1) Handbook: M.Lamandini, D.RamosMunoz, European Financial Law - An Introduction (Wolters Kluwer: 2016), chapters 1, 2, 3, 4 and 7. The book is available for sale in the usual bookshops and for consultation at the Department’s library;

(2) Slides: available on Virtuale

Teaching methods

Lectures with slides available on Virtuale. The use of these materials in study and preparation for examination is to be considered as complementary and not substitute for the use of the manuals indicated.

There will be testimonies of experts.

If necessary, contact Dr. Francesca Pellegrini at the email address francesca.pellegrin7@unibo.it and Elia Cerrato Garcia at the email address elia.cerratogarcia2@unibo.it.

Assessment methods

Written exam, multiple choices.

The exam is 30-minutes long.

It is composed of 31 multiple-choice questions.

Each question has 4 possible answers, of which only one is correct.

Each correct answer is worth 1 point. Wrong or missing answers do not entail any penalty.

Those who obtain a mark equal or greater than 18/30 pass the exam.

Optional project work upon agreement, only as an add on to the results of the written exam.

To subscribe to the exam, you must sign up using the AlmaEsami application, with due regard for the deadlines provided.

Those who failed to sign up by the due date are required to report in a timely manner (and in any case before the official closing of the enrollment lists) the problem with the teaching secretariat.

Teaching tools

Slides and materials available on Virtuale.

Office hours

See the website of Marco Lamandini

See the website of David Ramos Munoz