Supervising financial markets and protecting fundamental rights in a transnational law enforcement sphere: The case of ECB and ESMA
Promovendus: Mw. A.M. Karagianni
Promotor: Prof.Mr. R.J.G.M. Widdershoven
Duur: 1/9/2016 - 31/8/2020
Recent financial crises accentuated the transnational character of the market for financial services. To minimise future systemic risks and create a level playing field, the supervision of financial markets is now shared between EU law enforcement authorities (ECB and ESMA) and national competent authorities. ECB and ESMA are entrusted with monitoring, investigative and sanctioning powers. Those powers can interfere with the fundamental rights of natural and legal persons. Indicatively: the right to privacy, effective judicial protection, rights of defense. Despite the conferral of such intrusive powers on the ECB and ESMA, the two authorities do not operate on the basis of a homogeneous European code of (administrative or criminal) procedure. At the same time, while all EU Member States do adhere to international rights (ECHR) and European fundamental rights (CFR), each Member States integrates them within its national legal order differently. Having said that, the fact that enforcement is shared between the EU and national authorities, leads to the conclusion that there can as many as 28 different ways of interpreting the scope of the fundamental rights at stake. In other words, the problem is not the absence of rules and safeguards in the legal framework of the ECB and of ESMA regarding the scope of fundamental rights, but rather the co-existence of 28 different systems of fundamental rights protection within a transnational law enforcement sphere. This may give rise to a number of problems. Indicatively: legal uncertainty, forum-shopping, races to the bottom. This project is concerned with the protection of fundamental rights in financial supervision, in a transnational law enforcement area. It focuses on the pre-trial phase.