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jurisconsulting? October 8, 2010

Posted by Bradley in : consultation , add a comment

I think that consultation by policy-makers makes some sense as a means of gathering data about the context in which rules would operate, for example about whether a rule is needed or about how costly it would be to implement. And I understand that sometimes consultation is used for pr rather than to gather data. But I don’t understand why a regulator would use consultation to figure out what the law requires it to do. That seems to be exactly what the FSA is doing in its most recent quarterly consultation with respect to dealing with the implications of the Court of Justice’s December 2009 judgment in the Spector Photo Group Case (Case C-45/08). In that case, the Court ruled on the interpretation of Art. 2(1) of the Market Abuse Directive:

Member States shall prohibit any person … who possesses inside information from using that information by acquiring or disposing of, or by trying to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates.

The Court held that the directive involved a rebuttable presumption that a person who had inside information actually used it when trading. The FSA concludes that the statutory language in the UK is consistent with this interpretation, but that the language of the implementing rules is not:

MAR 1.3.4 E sets out our opinion that if the inside information was the reason for, or a material influence on, the decision to deal, this indicates that the person’s behaviour is ‘on the basis of’ inside information. This evidential provision suggests we would need evidence of a person’s intention, as a separate element, to prove insider dealing.

So, the FSA proposes to conform its rules to the requirements of Spector. Fair enough. But the FSA goes on to ask:

Do you agree that MAR 1.3.4 E should be deleted in light of the ECJ decision in the Spector case?

So, I want to know what possible relevance the views of respondents to the consultation document has to this question. Is the FSA here merely trying to give advance notice of the change, or is it really consulting on the question? Perhaps it is trying to save money on legal advice?

eu commission consults on basic payment accounts October 6, 2010

Posted by Bradley in : consultation, consumers , add a comment

The Commission has published a consultation document inviting stakeholders to comment on the idea of EU rules for basic payment accounts. The closing date for submissions is 17 November, and the consultation period is stated to be short because of a broader consultation last year. Some comments last year suggested that this was an issue self-regulation could not fix because those who are excluded from establishing bank accounts may not fit within banks’ economic models (see, e.g., comments of The Financial Inclusion Centre and Community Development Finance Association; Pour la Solidarité; Which?). In contrast, the Austrian Federal Economic Chamber argued that:

Forcing providers to offer a product by law is a tremendous interference with their private autonomy. Therefore, such an obligation must be rejected. Beyond that, a “one-size-fits-all”solution is not the appropriate approach for the issue at stake. The degrees of financial exclusion and the reasons for this exclusion vary significantly among the Member States. The appropriate response to the problem of financial exclusion can and must be found at the national level.

In the Consultation Document, and without noting that there was some noticeable opposition, the Commission states that the 2009 consultation:

revealed broad support for some EU action which could promote access to basic bank accounts throughout the Community.

Some action perhaps, but what should it look like? How to fix this issue through regulation? In order to ensure accessibility (but subject to the need to act to prevent money laundering and terrorist financing):

Criteria such as the level or regularity of income, employment, credit history, level of indebtedness, individual situation regarding bankruptcy or future activity of the account could not be taken into account for the opening a basic payment account.

The document suggests that the cost of basic accounts should be “reasonable”. This term is so far undefined, although the document suggests it may be defined later. The problem of charges for basic accounts was raised last year and could have merited some more detailed thought already, so this is disappointing. In thinking about the question of how to define “reasonable” charges for basic accounts one might focus on the comments of Which? that:

Banks are not charitable institutions but charging consumers fees for basic bank accounts would undermine the basis of BBAs: to achieve the aim of universal banking for all EU citizens.

On the other hand, the Irish Banking Federation argued that it would be inappropriate to regulate charges:

Although yet to crystallise in an official capacity, the features of a basic bank account being mooted in Ireland include no account-keeping fees, and no or low-cost transaction fees. However it would be
inappropriate for providers to be instructed as to the basis upon which they should construct their business
model as this is clearly a business decision.

So the Commission’s choice to use an indeterminate term such as “reasonable” looks like an attempt to postpone the arguments over charges to a point in time after the basic idea of EU rules on basic bank accounts has been agreed.

financial stability oversight council October 1, 2010

Posted by Bradley in : financial regulation , add a comment

Adopted a Transparency Policy, published a Roadmap, and announced an ANPR Regarding Authority to Require Supervision and Regulation of Certain Nonbank Financial Companies and a Notice and Request for Information Regarding the Council’s “Volcker Rule”Study and Recommendations. These documents will not be available from the Council’s web pages until they are published in the Federal Register.

animal welfare in the eu October 1, 2010

Posted by Bradley in : eu , add a comment

There’s a conference today and tomorrow, and a new web game called Farmland, which I haven’t tried, but which is meant to teach kids that animals are sentient beings and:

which aims to help tomorrow’s citizens to make informed choices about the food they will be buying when they grow up.

From a quick look it doesn’t seem that the game is designed to promote vegetarianism, but to encourage looking after farm animals well until they become our food.

The Commission held a Big Competition of Drawing for Children 6-13 years old Animal Welfare is Freedom (note the euro-english). The theme of the Competition was “Making Animals Happy”. By coincidence, this week I read James Wright’s A Blessing for the first time.

kadi: rights of defence must be protected in substance, not merely in form October 1, 2010

Posted by Bradley in : fundamental rights , add a comment

The EU’s General Court yesterday annulled the EU’s latest attempt to freeze Yassin Abdullah Kadi’s funds, noting that the funds had been frozen for a period of 10 years:

In the scale of a human life, 10 years in fact represent a substantial period of time and the question of the classification of the measures in question as preventative or punitive, protective or confiscatory, civil or criminal seems now to be an open one

The Court neatly ducks the issues of whether the Court of Justice’s 2008 Kadi judgment is consistent with international law:

..the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the General Court revisiting points of law which have been decided by the Court of Justice. That is a fortiori the case when, as here, the Court of Justice was sitting in Grand Chamber formation and clearly intended to deliver a judgment establishing certain principles. Accordingly, if an answer is to be given to the questions raised by the institutions, Member States and interested legal quarters following the judgment of the Court of Justice in Kadi, it is for the Court of Justice itself to provide that answer in the context of future cases before it.

The General Court states that developments since 2008 (for example the appointment of an Ombudsman) have not ensured an effective judicial procedure for review of decisions of the Sanctions Committee. And that the Commission never really engaged in any real attempt to give effect to Kadi’s rights of defence:

In the context of a judicial review which is ‘in principle the full review’ of the lawfulness of the contested regulation in the light of the fundamental rights .. and in the absence of any ‘immunity from jurisdiction’ for that regulation .., the arguments and explanations advanced by the Commission and the Council — particularly in their preliminary observations on the appropriate standard of judicial review in the present case — quite clearly reveal that the applicant’s rights of defence have been ‘observed’ only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committee’s findings and therefore at no time envisaged calling those findings into question in the light of the applicant’s observations.
..By the same token, the Commission … failed to take due account of the applicant’s comments and as a result he was not in a position to make his point of view known to advantage.
.. Furthermore, the procedure followed by the Commission, in response to the applicant’s request, did not grant him even the most minimal access to the evidence against him. In actual fact, the applicant was refused such access despite his express request, whilst no balance was struck between his interests, on the one hand, and the need to protect the confidential nature of the information in question, on the other…
In those circumstances, the few pieces of information and the imprecise allegations in the summary of reasons appear clearly insufficient to enable the applicant to launch an effective challenge to the allegations against him so far as his alleged participation in terrorist activities is concerned.