10 - Regulatory competition and the prospectus directive: the issuer choice policy dispute

Summary

Introduction

In Chapter 9, I proposed that more attention should be paid to EU regulatory decision-making in the context of scholarly research on regulatory competition. Specifically, the chapter attempted to do this by exploring the implications which the concept of ‘regulatory exit’ has for collective decision-making at EU level in the securities field. It suggested, first, that the threat of selective exit was worth accounting for when attempting to explain legislative choices for specific regulatory arrangements at EU level. But the chapter went further. After turning for guidance to authors such as Nicolaïdis or Scharpf, it suggested that in the securities field, where there has traditionally been a degree of regulatory competition between Member States, the threat of selective exit was worth examining, as a substantive and specific regulatory problem, when attempting to explain policy conflict and when accounting for underlying factors that contribute to impeding effective decision-making and problem-solving at EU level. This chapter examines these propositions and turns, for that purpose, to the legislative history and the negotiations of the PD.

The PD was finally adopted in 2003 at second reading under the co-decision procedure. The negotiations are noteworthy, for they were marked by a dispute over the precise arrangements that should govern the horizontal allocation of competences between Member States.