Meddelelse fra Kommisjonen til Europaparlamentet, Rådet, Den europeiske økonomiske og sosiale komite og Regionsutvalget om gjeldende lov knyttet til eierrettigheter ved handel med verdipapirer
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the applicable law to the proprietary effects of transactions in securities
Meddelelse lagt fram av Kommisjonen 12.3.2018
BAKGRUNN (fra kommisjonsmeddelelsen, engelsk utgave)
The Commission's priority is to further strengthen Europe's economy and stimulate investment to create jobs and sustain growth. In order to reach this objective, there is a need for stronger, deeper and more integrated capital markets. Efficient and safe post-trade infrastructures are key elements of such well-functioning capital markets. Following on from the Action Plan on Capital Markets Union (CMU), in June 2017 the Commission's Mid-term Review set out the remaining actions which will be taken to put in place the building blocks of CMU by 2019, with the objective of removing barriers to cross-border investment and lowering the costs of funding. Completing the CMU is an urgent priority.
As part of the CMU Action Plan and the Mid Term Review, the Commission announced targeted action to reduce legal uncertainty on cross-border transactions of securities and claims. This Communication and the legislative proposal on the applicable law to the proprietary effects of assignment of claims, also presented today, implement this commitment.
The purchase and sale of securities, as well as their use as collateral, take place daily across the EU in large volumes. A significant part of these transactions, amounting to around EUR 10 trillion per year, involve a cross-border element.
In order to promote cross-border transactions, clarity and predictability about which country's law applies to determine who owns the underlying assets of the transaction is of the essence. If there is legal uncertainty over who owns the asset, depending on which Member State's courts or authorities assess a dispute concerning the ownership of a claim or a security, the cross-border transaction may be enforceable or not, or might confer the expected legal title on the parties or not. In case of insolvency, when the questions of ownership and enforceability of transactions are put under judicial scrutiny, legal risks stemming from legal uncertainty may result in unexpected losses. The objective of this Communication is to help increase cross-border transactions in securities by providing legal certainty on the conflict of laws rules at Union level. Enhanced legal certainty will promote cross-border investment, access to cheaper credit and market integration.
On securities, three directives address the question which national law applies in case of cross-border transactions: the Financial Collateral Directive, the Settlement Finality Directive and the Winding-up Directive. These directives include conflict of laws rules that cover the most important aspects of securities transactions. However, their wording gives rise to different national interpretations. The lack of clarity created by different interpretations of the existing rules might make cross-border transactions more costly due to some residual legal uncertainty around which law is applicable.
Given the volume of transactions concerned, the Commission is of the view that a clarification of the rules is necessary to help markets reduce redundant costs and increase legal certainty around the applicable law.
This Communication clarifies the Commission's views on important aspects of the existing EU acquis with regard to the law applicable to proprietary effects of transactions in securities.
This Communication covers the third-party effects of the transfer of financial instruments. It accompanies the legislative proposal on third-party effects of assignment of claims. Matters governed by the Financial Collateral Directive, the Settlement Finality Directive, the Winding-up Directive and the Registry Regulation are not, however, affected by that legislative proposal