7 - Enforcement: national implementation

Summary

Introduction

Chapter 6 examined the EU's approach to prospectus disclosure enforcement and discussed the different measures and powers which the PD introduced in order to ensure that its provisions and its implementing legislation were properly enforced and applied. The PD's preference for administrative ex ante enforcement was seen as part of an effort to ‘manage’ mutual recognition, in the sense suggested by Nicolaïdis. I will return to the managed nature of the passport system in Chapter 10, but for now, it is worth turning the page and moving to enforcement at Member State level. I begin this chapter with an obvious observation. Because European and national levels of decision-making are interlocked, choices made at EU level with respect to enforcement affect enforcement patterns at Member State level. Although obvious, the point is important given that, as was noted in Chapter 5, there is a rich debate on enforcement in the law and economics, and law and finance, literature. This literature is, inter alia, interested in questions such as what are the most effective enforcement arrangements or what factors account for differences in enforcement patterns. Yet, what is missing from this debate is how enforcement patterns change, adapt or adjust to European law influences. This chapter seeks to fill this gap in the prospectus disclosure field. As elsewhere in this book, I am interested in evaluating change, adjustment or adaption. To be sure, this chapter has limited ambitions.