The Market Abuse Regulation and the Residual Role of National Law

Abstract

The Market Abuse Regulation (MAR) is a directly applicable and fully harmonizing piece of EU legislation. Consequently, the importance of national law within the scope of the MAR is limited. Nevertheless, national law retains some important areas of application: Apart from some explicit "opening clauses" (e.g. Art. 12 para. 4 of the MAR), there are "implicit opening clauses" which, for example, allow the application of national company law in the context of MAR obligations of legal persons (e.g. Art. 17 of the MAR). Moreover, the coexistence of EU and national law is inevitable in so far as EU rules must be applied in the national jurisdictions. The importance of autonomous national law in this respect is reinforced by the fact that the MAR and the Market Abuse Directive on Criminal Sanctions (CRIM-MAD) impose only minimum requirements with respect to legal enforcement and sanctions. Finally, in the area of civil enforcement, EU law does not impose any mandatory requirements at all, leaving it largely to national law to impose civil liability for breaches of the MAR. It is precisely at these junctures between the MAR and national law that the legal regimes of the Member States diverge, in some cases significantly. Although this situation is consistent under EU law, it is open to criticism in the light of the underlying objective of creating an EU-wide level playing field.

Keywords: market abuse regulation, private enforcement, public enforcement, harmonization, European Union law, attribution of knowledge

JEL Classification: K20, K22, K42