The enforcement functions of the European Securities and Markets Authority (ESMA) can be distinguished in subsidiary and direct enforcement tasks. This means that ESMA may act as supervisor either where the national competent authorities cannot intervene effectively, or where EU legislation confers a specific competence to act as the single supervisor. This chapter breaks down the exercise of these tasks with the aim of understanding if and how their exercise is ‘under control’. It shows that ESMA’s enforcement powers reflect due consideration of different systems of control. Yet their organisation and functioning set some pragmatic challenges to the implementation process, including ESMA’s independence and the standard of judicial review of its technical decisions.
Marloes van Rijsbergen and Marta Simoncini
Marloes van Rijsbergen and Jonathan Foster
The European Securities and Markets Authority (ESMA) is the only EU agency with the powers to exercise all three stages of enforcement, i.e. monitoring; investigating; and sanctioning. At the same time, it may need to look to Member States’ authorities for assistance in the exercise of its enforcement powers. While this means that tasks can be shared, this chapter shows that the national authorities always stand in a subordinate relationship to ESMA; ESMA remains the responsible actor. This is good news in terms of accountability: the legislative framework is clear as to the allocation of responsibility in the shared enforcement system towards credit rating agencies and trade repositories. ESMA’s accountability framework thus reveals no significant gaps and therefore gets the best rating: ‘AAA’ status.