The European Supervisory Authorities (ESAs) As 'Direct' Supervisors in the EU Financial System

Abstract

The European Supervisory Authorities (the ‘ESAs’) form part of a large network of EU agencies and are classified as regulatory agencies, their principal tasks being the development and completion of the ‘single rulebook’ for the EU financial system. The ESAs also promote supervisory convergence in order to create a level-playing field in financial supervision and supervisory practices in the EU. In the absence of an explicit legal basis in the TFEU for the allocation of competence to EU agencies, their powers are delimited, shaped and amenable to judicial review in light of relevant CJEU jurisprudence, most importantly, the Meroni doctrine, laying down the core principles governing relations between EU institutions and EU agencies. In this study, we look into the gradually emerging (and increasing) asymmetry in supervisory terms between the ESMA, on the one hand, and the EBA and the EIOPA, on the other. The former’s direct supervisory powers have been progressively expanding and technocratic influence widening, accentuated by recent relevant case-law modernising the Meroni doctrine and the recent amendment of the ESAs’ founding Regulations mirroring the ambition to move towards further centralisation of supervision of EU capital markets. The aim of this paper is to contribute to the ongoing debate arising from the ESAs’ developing role and position within the EU financial system.

Keywords: ESAs, ESMA, EBA, EIOPA, ESFS, supervision of financial institutions, European financial law, EU financial regulation, MiFIR, short selling, credit-rating agencies, trade repositories, EU agencies, regulatory agencies, Capital Markets Union, single rulebook, CJEU

JEL Classification: D02, D82, D92, E22, E44, F65, G1, G15, G21, G23, G24, G28, G30, K10, K22, N24