Reviewing the EU's market abuse rules. ECMI Policy Brief No. 19, 27 February 2012

Updated May 2012 and reposted: In 2011, an EU legislative package on market abuse was proposed, which comprises two sets of documents: 1) a draft Regulation that will largely replace the existing Market Abuse Directive (MAD) and the level 2 measures; and a new Directive dealing with criminal sanctions. Market abuse rules are needed to ensure market integrity and investor confidence, and to allow companies to raise capital and contribute to economic growth, thereby increasing employment. This ECMI Policy Brief argues that rules on market abuse should be technically well designed, proportionate and crystal clear, but also subject to more efficient and harmonised supervision than before. The paper focuses particularly on the draft Regulation. The use of a regulation is welcome, as (in integrated financial markets) abuses should be regulated in a harmonised manner by member states, which has not always been the case, as the 2007 report from the European Securities Markets Expert (ESME) Group extensively demonstrated. At the same time, this paper criticises some of the provisions contained in the draft Regulation, notably the new notion of inside information not to abuse (Art. 6(e)) and the unchanged definition of inside information for listed companies to disclose, and it proposes new definitions. The extension of disclosure obligations to issuers whose shares are traded on demand only on ‘listing’ multilateral trading facilities is also widely criticised. Other comments deal with the proposed rules on managers’ transactions, insiders’ lists and accepted market practices.

The market manipulation regime in the European Union

Market manipulation is an illegal practice that enables a person can profit from practices that artificially raise or lower the prices of an instrument in the financial markets. Its prohibition is based on the 2003 Market Abuse Directive in the EU. The current market manipulation regime was broadly considered as a big success except for enforcement and supervisory inconsistencies in the Member States at the initial. A review of the market manipulation regime began at the end of 2007, which became quickly incorporated into the wider EU crisis-era reform program. A number of weaknesses of current regime have been identified, which include regulatory gaps caused by the development of trading venues and financial products, regulatory gaps concerning cross-border and cross-markets manipulation (particular commodity markets), legal uncertainty as a result of various implementation, and inefficient supervision and enforcement. On 12 June 2014, a new regulatory package of market abuse, Market Abuse Regulation and Directive on criminal sanctions for market abuse, has been adopted. And several changes will be made concerning the EU market manipulation regime. A wider scope of the regime and a new prohibition of attempted market manipulation will ensure the prevention of market manipulation at large. The AMPs will be subject to strict scrutiny of ESMA to reduce divergences in implementation. In order to enhance efficiency of supervision and enforcement, powers of national competent authorities will be strengthened, ESMA is imposed more power to settle disagreement between national regulators, and the administrative and criminal sanctioning regimes are both further harmonized. In addition, the protection of fundamental rights is stressed by the new market manipulation regime, and some measures are provided to guarantee its realization. Further, the success EU market manipulation regime could be of significant reference to China, helping China to refine its immature regime.

The New EU Criminal Law Competence in Action: The Proposal for a Directive on Criminal Sanctions for Insider Dealing and Market Manipulation. IES WORKING PAPER 5/2013

The aim of this paper is to analyse the proposed Directive on criminal sanctions for insider dealing and market manipulation (COM(2011)654 final), which represents the first exercise of the European Union competence provided for by Article 83(2) of the Treaty on the Functioning of the European Union. The proposal aims at harmonising the sanctioning regimes provided by the Member States for market abuse, imposing the introduction of criminal sanctions and providing an opportunity to critically reflect on the position taken by the Commission towards the use of criminal law. The paper will discuss briefly the evolution of the EU’s criminal law competence, focusing on the Lisbon Treaty. It will analyse the ‘essentiality standard’ for the harmonisation of criminal law included in Article 83(2) TFEU, concluding that this standard encompasses both the subsidiarity and the ultima ratio principles and implies important practical consequences for the Union’s legislator. The research will then focus on the proposed Directive, trying to assess if the Union’s legislator, notwithstanding the ‘symbolic’ function of this proposal in the financial crisis, provides consistent arguments on the respect of the ‘essentiality standard’. The paper will note that the proposal raises some concerns, because of the lack of a clear reliance on empirical data regarding the essential need for the introduction of criminal law provisions. It will be stressed that only the assessment of the essential need of an EU action, according to the standard set in Article 83(2) TFEU, can guarantee a coherent choice of the areas interested by the harmonisation process, preventing the legislator to choose on the basis of other grounds.

Recensão do livro Abuso de Informação, Manipulação do Mercado § Responsabilidade Penal das Pessoas Colectivas, 4ª Edição Revista e Ampliada, 2015

Os crimes de abuso de informação privilegiada e manipulação do mercado estão em relação com a responsabilidade penal das pessoas colectivas como os bancos e com a chamada globalização. § The crimes of insider trading and market manipulation abuse are in relation to the criminal liability of legal persons such as banks and so-called globalization.

“Abuso de Informação, Manipulação do Mercado&Responsabilidade Penal das Pessoas Colectivas”

Este livro trata do direito penal económico e financeiro. Agora tão infelizmente na moda com os escândalos públicos ligados a bancos e/ou instituições mais ou menos financeiras e pessoas públicas. Fornece um especial enfoque no direito penal dos mercados de valores mobiliários e/ou outros instrumentos financeiros. § This book deals with the economic and financial criminal law. Now so sadly fashionable with public scandals linked to banks and / or about financial institutions and public figures. It provides a special focus on criminal matters in the securities markets and / or other financial instruments.

Prevenção do Terrorismo versus Neoliberalismo

Ora, a prevenção do terrorismo, é o contrário de tudo isto, com um Estado cada vez maior a intervir em todo o lado, vigiando tudo e todos, aumentando os orçamentos na segurança e paz públicas, em milhares de milhões. Analisando os capitais branqueados e quem vai às privatizações para evitar o próximo atentado terrorista. Imaginem se o Estado Islâmico compra a TAP! § Now, the prevention of terrorism, is the opposite of all this, with a state increasingly to intervene everywhere, watching everything and everyone, increasing the budgets in public security and peace, in billions. Analyzing the laundered money and who is going to privatizations to prevent the next terrorist attack. Imagine if the Islamic state buys TAP!

Equity offerings, stock price crash risk, and the impact of securities regulation: international evidence

We examine whether earnings manipulation around seasoned equity offerings (SEOs) is associated with an increase in the likelihood of a stock price crash post-issue and test whether the enactment of securities regulations attenuate the relation between SEOs and crash risk. Empirical evidence documents that managerial tendency to conceal bad news increases the likelihood of a stock price crash (Jin and Myers, 2006; Hutton, Marcus, and Tehranian, 2009). We test this hypothesis using a sample of firms from 29 EU countries that enacted the Market Abuse Directive (MAD). Consistent with our hypothesis, we find that equity issuers that engage in earnings management experience a significant increase in crash risk post-SEO relative to control groups of non-issuers; this effect is stronger for equity issuers with poor information environments. In addition, our findings show a significant decline in crash risk post-issue after the enactment of MAD that is stronger for firms that actively manage earnings. This decline in post-issue crash risk is more effective in countries with high ex-ante institutional quality and enforcement. These results suggest that the implementation of MAD helps to mitigate managers’ ability to manipulate earnings around SEOs.

Sanctions and public enforcement of insider trading laws in Europe

The recent financial crisis triggered an increasing demand for financial regulation to counteract the potential negative economic effects of the evermore complex operations and instruments available on financial markets. As a result, insider trading regulation counts amongst the relatively recent but particularly active regulation battles in Europe and overseas. Claims for more transparency and equitable securities markets proliferate, ranging from concerns about investor protection to global market stability. The internationalization of the world’s securities market has challenged traditional notions of regulation and enforcement. Considering that insider trading is currently forbidden all over Europe, this study follows a law and economics approach in identifying how this prohibition should be enforced. More precisely, the study investigates first whether criminal law is necessary under all circumstances to enforce insider trading; second, if it should be introduced at EU level. This study provides evidence of law and economics theoretical logic underlying the legal mechanisms that guide sanctioning and public enforcement of the insider trading prohibition by identifying optimal forms, natures and types of sanctions that effectively induce insider trading deterrence. The analysis further aims to reveal the economic rationality that drives the potential need for harmonization of criminal enforcement of insider trading laws within the European environment by proceeding to a comparative analysis of the current legislations of height selected Member States. This work also assesses the European Union’s most recent initiative through a critical analysis of the proposal for a Directive on criminal sanctions for Market Abuse. Based on the conclusions drawn from its close analysis, the study takes on the challenge of analyzing whether or not the actual European public enforcement of the laws prohibiting insider trading is coherent with the theoretical law and economics recommendations, and how these enforcement practices could be improved.

The law and finance of share repurchases in Europe

This article analyses the impact of the EU market abuse law on share repurchases. We find that the Member States' previous rules differed considerably, and therefore it can be said that the Regulation on share repurchases has provided uniformity as to the availability of a safe harbour for share repurchases. The picture, however, gets more difficult to assess if we consider our findings on the actual effect of the law. Our results do not confirm a “simple law and finance story“ according to which market participants would have just reacted as expected by the new legal rules. Rather, it seems to be the case that the value of legal certainty and the positive signal of common legal rules have also had an impact on the propensity to repurchase own stock.

I mercati di crescita per le PMI

La tesi studia ed approfondisce la disciplina dei mercati di crescita per le PMI, indagando il regime normativo delle società ivi quotate. Considerata la struttura composita dell’architettura regolamentare (direttive e regolamenti europei, fonti primarie nazionali e regolamento del mercato) l’indagine adotta una prospettiva olistica sulla regolamentazione, al fine di individuare principii comuni e risolevere dubbi interpretativi. Inoltre, l’approfondimento in chiave storica e di economia politica, volto a ricostruire le ragioni per l’introduzione dei mercati di crescita e gli obiettivi perseguiti dal legislatore europeo, permette di identificare le rationes sottostanti alle disposizioni e di facilitarne l’interpretazione. Il primo capitolo approfondisce l’evoluzione storica e istituzionale dei mercati di crescita per le PMI e gli obiettivi che il legislatore europeo si prefigge di raggiungere. Il secondo capitolo affronta invece il processo di registrazione dei sistemi multilaterali di negoziazione come mercati di crescita. Il capitolo indaga quali siano i requisiti affinché un sistema multilaterale possa essere registrato come mercato di crescita, come si svolga il processo di registrazione e quale sia il ruolo dell’autorità di vigilanza. Il terzo capitolo approfondisce quali siano le disposizioni di diritto societario applicabili agli emittenti quotati sui mercati di crescita. Infatti, mentre la disciplina per gli emittenti quotati sui mercati regolamentati non è direttamente applicabile a queste società, non si può neppure escludere in via preliminare che determinate disposizioni non siano applicabili in via analogica, a causa delle specifiche caratteristiche conferite a questi emittenti ed ai titoli ammessi alla negoziazione dalla quotazione. Il quarto capitolo analizza diverse disposizioni relative all’informazione, intesa in senso ampio. Infine, il quinto capitolo affronta la disciplina dell’o.p.a. obbligatoria prevista dal regolamento del mercato di crescita AIM Italia.

Review of Measures to Reduce Costs in the Private Health Insurance Market 2013

This report was prepared independently by Mr McLoughlin with the insurers support, for consideration by the Minister for Health and the insurers.  All parties were very conscious of the importance of respecting competition law when dealing with issues such as prices and costs. The Phase 1 report contains 32 recommendations under 9 headings as follows: Most of the recommendations in the Phase 1 report could be implemented on an administrative basis, while a small number, if adopted, would require legislation. Some of the key recommendations to drive down costs are can be summarised as follows: Controlling costs in private health insurance Care settings and use of resources Age structure of the market Clinical audit and utilisation management Industry approach to private psychiatry Fraud, waste and abuse Chronic disease management Claims processing Admission and discharge procedures and processes. Most of the recommendations in the Phase 1 report could be implemented on an administrative basis, while a small number, if adopted, would require legislation.

Acute coronary syndrome after levamisole-adultered cocaine abuse

Cocaine is a well known trigger of acute coronary syndromes. Over the last 10 years levamisole, a veterinary anthelminthic drug has been increasingly used as an adulterant of cocaine. Levamisole was used to treat pediatric nephritic syndrome and rheumatoid arthritis before being withdrawn from the market due to its significant toxicity, i.e. hematological complications and vasculitis. The major complications of levamisole-adultered cocaine reported up to now are hematological and dermatological. The case reported here is of a 25 year old man with a history of cocaine abuse who died at home after complaining of retrosternal pain. Postmortem CT-angiography, autopsy, and chemical and toxicological analyses were performed. An eroded coronary artery plaque was found at the proximal segment of the left anterior descending coronary artery. Two myocardial infarct scars were present in the left ventricle. Microscopic examination of the coronary artery revealed infiltration of eosinophils into the adventitia and intima. Toxicological examination confirmed the presence of cocaine and its metabolites in the peripheral blood, and of levamisole in the urine and pericardial fluid. Eosinophilic inflammatory coronary artery pathologies have been clinically linked to coronary dissection, hypersensitivity coronary syndrome and vasospastic allergic angina. The coronary pathology in the presented case could be a complication of levamisole-adultered cocaine use, in which an allergic or immune-mediated mechanism might play a role. The rise in cocaine addiction worldwide and the increase of levamisole adulterated cocaine highlights the importance of updating our knowledge of the effects of adultered cocaine abuse.

The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

Saving the Monopsony: Exclusivity, Innovation and Market Power in the Media Sector. Research Papers in Law, 7/2006

From the Introduction. The Media Sector has experienced a technological revolution in the last 15 years. Digital encoding of television signals made possible a more efficient use of the radiospectrum. Digital terrestrial television (hereinafter, “DTT”) allows now for the reception of a significant number of free-to-air channels.1 Moreover, the use of new transmission platforms (hereinafter,“platforms”), namely cable and direct-to-home satellite (hereinafter, “DTH”) paved the way for the arrival in Europe of pay-TV operators, which finance their activities mainly via subscription fees. This changing technological landscape is subject to further evolution in the near future, as incumbent telecommunications operators become increasingly interested in making available broadcasting content2 as part of their broadband offer and 3G mobile handsets can be used for the reception of TV signals....The present paper seeks to ascertain whether the Commission “regulatory approach” towards the exclusive sale of premium content is a sound one, in particular in view of the constant technological evolution outlined above. The assumptions underlying landmark Commission decisions will be compared with recent developments of the media sector in Italy. In the NewsCorp./Telepiù case, decided in 2003, the Commission imposed very strict conditions to allow the merger giving birth to Sky Italia, on the assumption that the operation created a lasting near-monopsony in the different upstream markets for the acquisition of premium intervened against the media conglomerate Mediaset (which controls, inter alia, the main three private free-to-air channels in Italy) for an alleged abuse of dominant position.17 In fact, and contrary to the forecasts made by the Commission, Mediaset was in a position to acquire the broadcasting rights of the main Italian football teams, thereby excluding the incumbent (and near-monopolist) pay-TV operator, Sky Italia. This may go to show that the reality of the sector is more complex and evolves faster than one may infer from the Commission practice, thus putting into question its stance regarding exclusivity. The experience of the evolution of the Italian media sector will be used as the starting point for the evaluation of alternative regulatory options.

Study of the urinary biomarkers of synthetic cannabinoid receptor agonists (SCRAs) for the forensic unequivocal proof of consumption: medico-legal implications for drug abuse prevention

Introduction. Synthetic cannabinoid receptor agonists (SCRAs) represent the widest group of New Psychoactive Substances (NPS) and, around 2021-2022, new compounds emerged on the market. The aims of the present research were to identify suitable urinary markers of Cumyl-CB-MEGACLONE, Cumyl-NB-MEGACLONE, Cumyl-NB-MINACA, 5F-EDMB-PICA, EDMB-PINACA and ADB-HEXINACA, to present data on their prevalence and to adapt the methodology from the University of Freiburg to the University of Bologna. Materials and methods. Human phase-I metabolites detected in 46 authentic urine samples were confirmed in vitro with pooled human liver microsomes (pHLM) assays, analyzed by liquid chromatography-quadrupole time-of-flight mass spectrometry (LC-qToF-MS). Prevalence data were obtained from urines collected for abstinence control programs. The method to study SCRAs metabolism in use at the University of Freiburg was adapted to the local facilities, tested in vitro with 5F-EDMB-PICA and applied to the study of ADB-HEXINACA metabolism. Results. Metabolites built by mono, di- and tri-hydroxylation were recommended as specific urinary biomarkers to monitor the consumption of SCRAs bearing a cumyl moiety. Monohydroxylated and defluorinated metabolites were suitable proof of 5F-EDMB-PICA consumption. Products of monohydroxylation and amide or ester hydrolysis, coupled to monohydroxylation or ketone formation, were recognized as specific markers for EDMB-PINACA and ADB-HEXINACA. The LC-qToF-MS method was successfully adapted to the University of Bologna, as tested with 5F-EDMB-PICA in vitro metabolites. Prevalence data showed that 5F-EDMB-PINACA and EDMB-PINACA were more prevalent than ADB-HEXINACA, but for a limited period. Conclusion. Due to undetectability of parent compounds in urines and to shared metabolites among structurally related compounds, the identification of specific urinary biomarkers as unequivocal proofs of SCRAs consumption remains challenging for forensic laboratories. Urinary biomarkers are necessary to monitor SCRAs abuse and prevalence data could help in establishing tailored strategies to prevent their spreading, highlighting the role for legal medicine as a service to public health.