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ESMA Inspecting: The Implications for Judicial Control Under Shared Enforcement

Forthcoming in European Journal of Risk Regulation

12 Pages Posted: 10 Feb 2016 Last revised: 31 Mar 2016

Marloes van Rijsbergen

Utrecht University School of Law

Miroslava Scholten

Utrecht University School of Law (the Netherlands)

Date Written: February 6, 2016

Abstract

The European Securities and Markets Authority (ESMA) has received considerable academic attention for its newly acquired regulatory powers and the issues of legitimacy and controls concerning its far-reaching powers. ESMA’s supervisory tasks are not less impressive but they are underinvestigated. In light of the recent English judgement on the exercise of ESMA’s inspection powers in the UK, this paper focuses on the question of judicial control over inspection power of ESMA. It shows that judicial control has been established in principle. However, the existing legal framework based on different national procedures allows ESMA escaping judicial control by chance or on purpose. The article argues for the necessity of addressing the spotted controlling gap by, for instance, eliminating the differences or limiting inspection-related discretion and promoting judicial cooperation. Since EU and national enforcement powers have become increasingly shared, the system of control cannot remain completely separated, as it is the case today. How the EU supervisor is to be controlled should not be up to the EU supervisor to choose.

Keywords: supervision, enforcement, EU, national, ESMA, investigation, inspection, accountability, judicial protection, national procedural autonomy

Suggested Citation

van Rijsbergen, Marloes and Scholten, Miroslava, ESMA Inspecting: The Implications for Judicial Control Under Shared Enforcement (February 6, 2016). Forthcoming in European Journal of Risk Regulation. Available at SSRN: https://ssrn.com/abstract=2728741 or http://dx.doi.org/10.2139/ssrn.2728741

Marloes Van Rijsbergen

Utrecht University School of Law ( email )

Achter Sint Pieter 200
Utrecht, Utrecht 3512 HT
Netherlands
0031 30 253 7084 (Phone)

Miroslava Scholten (Contact Author)

Utrecht University School of Law (the Netherlands) ( email )

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