Market Manipulation Through Short Selling Attacks and Misleading Financial Analyses

Abstract

“Market abuse harms the integrity of financial markets and public confidence in securities and derivatives.” If legal protection at stock exchanges is insufficient and there is a lack of trust, citizens likely will not buy shares. Short-sell-attacks and incorrect financial analyses are not sufficiently regulated. As the directive on short selling only prohibits “uncovered short selling”, the actions of the short sellers are themselves not illegal, as long as they do not reach the threshold of stock price manipulation by false or misleading research reports. The tension of market manipulation, financial analyses, as well as freedom of press and freedom of opinion are yet to be resolved.
Surprisingly, previous national regulations such as the “MaKonV” were more precise than the European regulations currently in force, the MAR with its delegated regulations. There is a lack of definitions, clear duties of the affected, as well as examples that indicate unambiguously when an investment recommendation is illegal. Short selling attacks can be ascribed to the “black market”, they constitute organized crime. But with tedious investigations, protection of civil as well as criminal law is difficult to obtain.
There is a general deficit of concretization and enforcement of norms.
The present contribution provides proposals de lege lata and de lege ferenda, to address said difficulties.

Keywords: Short Selling, Market Manipulation, Wirecard