This article explores the case for, and the possible contents of, a European resolution regime for Central Securities Depositories, and examines developments in the course of the last decade that may have reinforced the case for reflection on the need for its eventual introduction. The article also explores accessory policy objectives whose eventual achievement could be facilitated by the existence of a harmonised resolution regime for European Central Securities Depositories. Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives
本文探讨了欧洲中央证券存管机构决议制度的案例和可能的内容，并考察了过去十年的发展，这些发展可能加强了对最终引入该制度的必要性的反思。本文还探讨了附属政策目标，这些目标的最终实现可以通过欧洲中央证券存管机构(European Central Securities depository)统一决议机制的存在而得到促进。中央证券存管机构、决议、法律和政策考虑、决议目标、与CSDR的互动以及其他协调措施
{"title":"A European Resolution Regime for Central Securities Depositories? Some Reflections","authors":"Phoebus L. Athanasiou","doi":"10.54648/eulr2022032","DOIUrl":"https://doi.org/10.54648/eulr2022032","url":null,"abstract":"This article explores the case for, and the possible contents of, a European resolution regime for Central Securities Depositories, and examines developments in the course of the last decade that may have reinforced the case for reflection on the need for its eventual introduction. The article also explores accessory policy objectives whose eventual achievement could be facilitated by the existence of a harmonised resolution regime for European Central Securities Depositories.\u0000Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45156631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
No-action letters have been in use in the US by the Securities and Exchange Commission (SEC) for over 50 years. Intrigued by the usefulness and the agility provided by the no-action letters, market participants have made calls to introduce a similar competence/power for the European Securities and Markets Authority (ESMA). ESMA was eventually given the possibility to issue no-action letters. Arguably, the new power stands to be an amalgam of the already existing powers of ESMA brought together under one article. This article proposes that the new power is not free from accountability and efficacy problems and that some amendments are needed to address this dangerous lack. The dearth of scholarship on the no-action letters in the EU coupled with ESMA starting to issue its first no-action letters makes analysing this issue all the more pressing. In setting the scene, the article describes the no-action letters used by the SEC. The article then analyses ESMA as an EU agency and sets out its regulatory remit. Thereafter the new no-action power of ESMA is explained and compared with the established practice in the US. The article finally concludes by pointing out the deficiencies of the new power of ESMA and makes suggestions to improve its efficacy and accountability. Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives
{"title":"Pat on the Shoulder or Real Empowerment? New ESMA Jurisdiction in No-Action Letters Compared with the SEC Experience","authors":"Etka Atak","doi":"10.54648/eulr2022033","DOIUrl":"https://doi.org/10.54648/eulr2022033","url":null,"abstract":"No-action letters have been in use in the US by the Securities and Exchange Commission (SEC) for over 50 years. Intrigued by the usefulness and the agility provided by the no-action letters, market participants have made calls to introduce a similar competence/power for the European Securities and Markets Authority (ESMA). ESMA was eventually given the possibility to issue no-action letters. Arguably, the new power stands to be an amalgam of the already existing powers of ESMA brought together under one article. This article proposes that the new power is not free from accountability and efficacy problems and that some amendments are needed to address this dangerous lack.\u0000The dearth of scholarship on the no-action letters in the EU coupled with ESMA starting to issue its first no-action letters makes analysing this issue all the more pressing. In setting the scene, the article describes the no-action letters used by the SEC. The article then analyses ESMA as an EU agency and sets out its regulatory remit. Thereafter the new no-action power of ESMA is explained and compared with the established practice in the US. The article finally concludes by pointing out the deficiencies of the new power of ESMA and makes suggestions to improve its efficacy and accountability.\u0000Central Securities Depositories, resolution, legal and policy considerations, resolution objectives, interaction with CSDR and other harmonisation initiatives","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48044786","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Book Review: Reddy B. Founders without Limits: Dual-Class Stock and the Premium Tier of the London Stock Exchange","authors":"Daniele D’Alvia","doi":"10.54648/eulr2022034","DOIUrl":"https://doi.org/10.54648/eulr2022034","url":null,"abstract":"","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47803696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
SMEs are the driving force of economies. For many years, this supported, somewhat ironically, the neglect in designing a coherent regulatory framework to ensure their fair treatment. But the reality is that many SMEs face information asymmetries, lack resources and negotiation power and in the absence of regulatory protection are exposed to harm. In recent years, mounting ad-hoc, eclectic responses have mushroomed to address various aspects of appropriate conduct standards, dispute resolution and accountability. While these mechanisms allow for adaptability and dynamism, they may prove to be inadequate to achieve the FCA’s consumer protection objectives. This article proposes to broaden the application of vulnerability, which was initially designed with natural persons in mind, to guide the fair treatment of SMEs. It argues that expanding the application of vulnerability to SMEs would reflect the hybrid nature of this business model which is often akin to that of individual consumers. Conduct of business, Vulnerability, SMEs, FCA perimeter, Regulated activities, Commercial lending, Industry codes of conduct, Senior Managers and Certification Regime, Dispute resolution and redress, The Financial Markets Test Case Scheme, Business Lending Standards
{"title":"Vulnerability in Financial Regulation: The Case of SMEs","authors":"A. Keller","doi":"10.54648/eulr2022031","DOIUrl":"https://doi.org/10.54648/eulr2022031","url":null,"abstract":"SMEs are the driving force of economies. For many years, this supported, somewhat ironically, the neglect in designing a coherent regulatory framework to ensure their fair treatment. But the reality is that many SMEs face information asymmetries, lack resources and negotiation power and in the absence of regulatory protection are exposed to harm. In recent years, mounting ad-hoc, eclectic responses have mushroomed to address various aspects of appropriate conduct standards, dispute resolution and accountability. While these mechanisms allow for adaptability and dynamism, they may prove to be inadequate to achieve the FCA’s consumer protection objectives. This article proposes to broaden the application of vulnerability, which was initially designed with natural persons in mind, to guide the fair treatment of SMEs. It argues that expanding the application of vulnerability to SMEs would reflect the hybrid nature of this business model which is often akin to that of individual consumers.\u0000Conduct of business, Vulnerability, SMEs, FCA perimeter, Regulated activities, Commercial lending, Industry codes of conduct, Senior Managers and Certification Regime, Dispute resolution and redress, The Financial Markets Test Case Scheme, Business Lending Standards","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47828981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Targeted advertising in digital markets involves multiple actors collecting, exchanging, and processing personal data for the purpose of capturing users’ attention in online environments. This ecosystem has given rise to considerable adverse effects on individuals and society, resulting from mass surveillance, the manipulation of choices and opinions, and the spread of addictive or fake messages. Against this background, this article critically discusses the regulation of consent in online targeted advertising. To this end, we review EU laws and proposals and consider the extent to which a requirement of informed consent may provide effective consumer protection. On the basis of such an analysis, we make suggestions for possible avenues that may be pursued. Targeted advertising, data markets, informed consent, privacy and data protection, GDPR, consumer protection, Digital Services Act, Digital Markets Act, future regulation
{"title":"Consent to Targeted Advertising","authors":"F. Galli, F. Lagioia, G. Sartor","doi":"10.54648/eulr2022023","DOIUrl":"https://doi.org/10.54648/eulr2022023","url":null,"abstract":"Targeted advertising in digital markets involves multiple actors collecting, exchanging, and processing personal data for the purpose of capturing users’ attention in online environments. This ecosystem has given rise to considerable adverse effects on individuals and society, resulting from mass surveillance, the manipulation of choices and opinions, and the spread of addictive or fake messages. Against this background, this article critically discusses the regulation of consent in online targeted advertising. To this end, we review EU laws and proposals and consider the extent to which a requirement of informed consent may provide effective consumer protection. On the basis of such an analysis, we make suggestions for possible avenues that may be pursued.\u0000Targeted advertising, data markets, informed consent, privacy and data protection, GDPR, consumer protection, Digital Services Act, Digital Markets Act, future regulation","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41891350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article argues that in a digital environment there is a need for a paradigm shift which includes reversing the expectations placed on consumers by EU law to be the arbiter of markets, to behave as ‘average’ consumers with additional protection granted for those deemed ‘vulnerable’. This is because we ought to expect vulnerability to be the norm rather than the exception. The information paradigm prevalent in EU consumer law also needs to be altered to solve the systemic vulnerability problems rife in digital markets. It should no longer be about consumers defending themselves (using rather imperfect instruments in the process), but about businesses behaving fairly and skilled enforcers ensuring obligations are fulfilled. Fairness in digital markets should be by design and not something that is offered to consumer simply as a remedy after the damage has already occurred. Vulnerable consumers, EU consumer law, fairness, unfair commercial practices, dark patterns, Digital Services Act, Digital Market Act, General Product Safety Regulation, Artificial Intelligence Act, Consumer Credits Directive
{"title":"Protecting Vulnerable Consumers in the Digital Single Market","authors":"C. Riefa","doi":"10.54648/eulr2022028","DOIUrl":"https://doi.org/10.54648/eulr2022028","url":null,"abstract":"The article argues that in a digital environment there is a need for a paradigm shift which includes reversing the expectations placed on consumers by EU law to be the arbiter of markets, to behave as ‘average’ consumers with additional protection granted for those deemed ‘vulnerable’. This is because we ought to expect vulnerability to be the norm rather than the exception. The information paradigm prevalent in EU consumer law also needs to be altered to solve the systemic vulnerability problems rife in digital markets. It should no longer be about consumers defending themselves (using rather imperfect instruments in the process), but about businesses behaving fairly and skilled enforcers ensuring obligations are fulfilled. Fairness in digital markets should be by design and not something that is offered to consumer simply as a remedy after the damage has already occurred.\u0000Vulnerable consumers, EU consumer law, fairness, unfair commercial practices, dark patterns, Digital Services Act, Digital Market Act, General Product Safety Regulation, Artificial Intelligence Act, Consumer Credits Directive","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47248745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Big Data phenomenon first, and AI most recently, have significantly changed the way in which credit scoring takes place and creditworthiness is evaluated by lenders. Beside traditional credit data, the creation of consumers’ credit-scores now involves also non-traditional data and is based on the predictions that lenders can make on the basis of those data. The use of AI, coupled with the availability of extensive amounts of ‘alternative’ data, poses several questions as to the level of protection granted to consumers in relation to the discriminatory effects that an ungoverned used of such technology can generate. The article addresses the suitability of the Proposal for a new Directive on Consumer Credit to protect consumers that enter into credit agreements where access to credit is determined by AI-based credit scoring systems. In doing so, it also takes into consideration other rules within the EU legal framework that can provide, albeit indirectly, protection to consumers, such as antidiscrimination law and Article 22 of the GDPR. It concludes that in a technologically complicated scenario such as the one of AI credit scoring, consumers can be effectively protected only by introducing an ecosystem of rules that while empowering consumers also regulates the use of AI on the business side of the credit agreement. Credit scoring, Artificial Intelligence, Big Data, Alternative Data, Directive on Consumer Credit, AI Regulation.
{"title":"Towards an Ecosystem for Consumer Protection in the Context of AI-based Credit Scoring","authors":"Maria Lillà Montagnani, Carolina Paulesu","doi":"10.54648/eulr2022026","DOIUrl":"https://doi.org/10.54648/eulr2022026","url":null,"abstract":"The Big Data phenomenon first, and AI most recently, have significantly changed the way in which credit scoring takes place and creditworthiness is evaluated by lenders. Beside traditional credit data, the creation of consumers’ credit-scores now involves also non-traditional data and is based on the predictions that lenders can make on the basis of those data. The use of AI, coupled with the availability of extensive amounts of ‘alternative’ data, poses several questions as to the level of protection granted to consumers in relation to the discriminatory effects that an ungoverned used of such technology can generate. The article addresses the suitability of the Proposal for a new Directive on Consumer Credit to protect consumers that enter into credit agreements where access to credit is determined by AI-based credit scoring systems. In doing so, it also takes into consideration other rules within the EU legal framework that can provide, albeit indirectly, protection to consumers, such as antidiscrimination law and Article 22 of the GDPR. It concludes that in a technologically complicated scenario such as the one of AI credit scoring, consumers can be effectively protected only by introducing an ecosystem of rules that while empowering consumers also regulates the use of AI on the business side of the credit agreement.\u0000Credit scoring, Artificial Intelligence, Big Data, Alternative Data, Directive on Consumer Credit, AI Regulation.","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43688763","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article aims to conceptualize the figure of the digital-financial payment consumer, which combines two separate -and ex se relevant- sources of vulnerability: digital vulnerability and financial vulnerability. The first part, -after summarizing the legal framework on digitizing payment, the social context and the policy lines- deals with the need of applying the concept of “neutrality of regulation” to avoid possible conflicts of rules between interconnected ecosystems, such as digital payments, digital platforms and blockchain. Having consumer protection in mind, it also addresses the cumulative and coherent application of different sets of rules. The second part looks in more detail at digital-financial consumer vulnerability, describing the possible implications at regulatory level and the consequences that this new kind of vulnerability brings at the level of political choices, the obligations of financial players and the conduct of a consumer who is part of a payment service contract, adopting both the point of view of public law (in terms of policy choices) and private law (intersubjective relations). The article concludes that, among the different sources of vulnerability, age appears to be the key issue when assessing the vulnerability of digital payment consumers. Once detected, this new kind of vulnerability is specifically relevant to the banks’s disclosure obligations (which should be synthetic and selective), and in terms of product design and product governance (companies should “tailor” their products specifically to the group’s customer profile they intend to reach). On the consumer side, the same behaviour should be assessed differently depending on the specific vulnerability of the consumer involved. The paper deals here with the level of gross negligence in case of unauthorized digital payment (phishing). Instant digital payments, digital platforms, blockchain, fraud, liability, consumer protection, speed, security, loss allocation, vulnerability, financial vulnerability, digital vulnerability, financial inclusion, grey digital divide
{"title":"A Matter of Time. Digital-Financial Consumers’ Vulnerability in the Retail Payments Market","authors":"Maria Cecilia Paglietti, Maddalena Rabitti","doi":"10.54648/eulr2022027","DOIUrl":"https://doi.org/10.54648/eulr2022027","url":null,"abstract":"This Article aims to conceptualize the figure of the digital-financial payment consumer, which combines two separate -and ex se relevant- sources of vulnerability: digital vulnerability and financial vulnerability.\u0000The first part, -after summarizing the legal framework on digitizing payment, the social context and the policy lines- deals with the need of applying the concept of “neutrality of regulation” to avoid possible conflicts of rules between interconnected ecosystems, such as digital payments, digital platforms and blockchain. Having consumer protection in mind, it also addresses the cumulative and coherent application of different sets of rules.\u0000The second part looks in more detail at digital-financial consumer vulnerability, describing the possible implications at regulatory level and the consequences that this new kind of vulnerability brings at the level of political choices, the obligations of financial players and the conduct of a consumer who is part of a payment service contract, adopting both the point of view of public law (in terms of policy choices) and private law (intersubjective relations).\u0000The article concludes that, among the different sources of vulnerability, age appears to be the key issue when assessing the vulnerability of digital payment consumers. Once detected, this new kind of vulnerability is specifically relevant to the banks’s disclosure obligations (which should be synthetic and selective), and in terms of product design and product governance (companies should “tailor” their products specifically to the group’s customer profile they intend to reach). On the consumer side, the same behaviour should be assessed differently depending on the specific vulnerability of the consumer involved. The paper deals here with the level of gross negligence in case of unauthorized digital payment (phishing).\u0000Instant digital payments, digital platforms, blockchain, fraud, liability, consumer protection, speed, security, loss allocation, vulnerability, financial vulnerability, digital vulnerability, financial inclusion, grey digital divide","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42739518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Editorial Introduction: Consumers in the Digital Single Market","authors":"Federico Ferretti","doi":"10.54648/eulr2022022","DOIUrl":"https://doi.org/10.54648/eulr2022022","url":null,"abstract":"","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46949680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an era of big data, harms caused by data technologies can no longer be effectively addressed under the predominant regulatory paradigm of individual empowerment. Even a sophisticated consumer cannot fully protect herself against collective harms triggered by others’ privacy choices or by technologies creating competitive harm without processing personal data or targeting individuals. While data protection and competition law can be applied more proactively to address such harms, difficulties are likely to remain. We therefore submit that stronger regulatory interventions are required to target collective, and sometimes competitive, harm from technologies like pervasive advertising, facial recognition, deepfakes and spyproducts. Big data, individual rights, societal harms, exploitative abuse, enforcement priorities, blacklists, pervasive advertising, facial recognition, deepfakes, spyproducts
{"title":"Collective Data Harms at the Crossroads of Data Protection and Competition Law: Moving Beyond Individual Empowerment","authors":"Inge Graef, Bart van der Slot","doi":"10.54648/eulr2022024","DOIUrl":"https://doi.org/10.54648/eulr2022024","url":null,"abstract":"In an era of big data, harms caused by data technologies can no longer be effectively addressed under the predominant regulatory paradigm of individual empowerment. Even a sophisticated consumer cannot fully protect herself against collective harms triggered by others’ privacy choices or by technologies creating competitive harm without processing personal data or targeting individuals. While data protection and competition law can be applied more proactively to address such harms, difficulties are likely to remain. We therefore submit that stronger regulatory interventions are required to target collective, and sometimes competitive, harm from technologies like pervasive advertising, facial recognition, deepfakes and spyproducts.\u0000Big data, individual rights, societal harms, exploitative abuse, enforcement priorities, blacklists, pervasive advertising, facial recognition, deepfakes, spyproducts","PeriodicalId":53431,"journal":{"name":"European Business Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43684696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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