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Published online by Cambridge University Press: 03 February 2021
After the financial crisis of 2008, the European Union (‘EU’) not only increased its substantial legislation regarding financial services, but also built up a strong and unified system of financial market supervision. In particular, central surveillance authorities were created. These were given far-reaching competences with regard to substituting dysfunctional national authorities or players in the financial services sector. The three European Economic Area (‘EEA’) and European Free Trade Association (‘EFTA’) States—Iceland, Liechtenstein, and Norway—participate in the EU's internal market through their membership of the EEA. In order to continue participating on an equal footing in the internal market for financial services and to honour their duty to maintain homogeneity, the EEA EFTA States also had to incorporate the new institutional setup regarding financial services supervision. This obligation, however, in particular relating to certain intrusive powers of the new surveillance authorities, collided with some constitutional reservations, above all of the two Nordic EEA EFTA States. This article will show how these conflicting aims could be merged into a system that on the one hand guarantees the unified overall approach needed for strengthened surveillance of the internal market for financial services, and on the other hand safeguards certain constitutional reservations of the EEA EFTA States. It also looks at how third countries that do not (fully) participate in the internal market, such as the United Kingdom and Switzerland, are likely to be treated in this context by the EU.
I am indebted to Christian NK Franklin for allowing me to borrow from his title in ‘Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law’, in the Cambridge Yearbook of European Legal Studies, 19 (2017), pp 165–86. This article will, like his, deal with the incorporation of EU law into the somewhat different structure of EEA law. I also thank Christina Neier and Juliet Reynolds for their comments; all remaining errors are my own.
1 Alexander, K, Principles of Banking Regulation (Cambridge University Press, 2019), p 63CrossRefGoogle Scholar.
2 For a short introduction to EFTA, see Vahl, M and Berg, A, ‘EFTA’ in Looney, R E (ed), Handbook of International Trade Agreements (Routledge, 2019), p 271Google Scholar; for a more extensive overview see Baur, G, The European Free Trade Association (Intersentia, 2020)CrossRefGoogle Scholar.
3 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, [2020] OJ C34/1, para 120.
4 Existing association agreements aim at least to allow for access to the EU's internal market, while the maximum available—currently in the form of the EEA Agreement—is participation in the EU's internal market, but without participation in its formal decision making. In order to obtain the latter, certain institutional conditions must be met, such as: (1) a dynamic way of incorporating new law; (2) homogeneous interpretation of law; (3) an independent supervisory authority as well as (4) a judicial review thereof, and (5) a supranational dispute-resolution institution. For more details see Baur, G, ‘Privileged Partnerships – The Partner Countries' (Institutional) Perspectives’, in Gstöhl, S and Phinnemore, D (eds), The Proliferation of Privileged Partnerships between the European Union and Its Neighbours (Routledge, 2020), p 28Google Scholar. As to the substantial scope, it suffices to say that the EU generally insists on subscribing to the undivided four freedoms—the free movement of goods, persons, services, and capital—and the competition policies that go with these, in order to allow for full participation in the internal market.
5 S Gstöhl and D Phinnemore, ‘Introduction’, in The Proliferation of Privileged Partnerships between the European Union and its Neighbours, note 4 above, pp 3, 8.
6 European Commission (TF50), slide presented by Michel Barnier, European Commission Chief Negotiator, to the Heads of State and Government at the European Council (Art 50), 15 December 2017.
7 COM(2019) 349 final, Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions: Equivalence in the area of financial services [2019], www.ec.europa.eu/info/sites/info/files/business_economy_euro/banking_and_finance/documents/190729-communication-equivalence-financial-services_en.pdf.
8 Commission Implementing Decision (EU) 2019/1282 of 29 July 2019 repealing Implementing Decision 2014/246/EU on the recognition of the legal and supervisory framework of Argentina as equivalent to the requirements of Regulation (EC) No 1060/2009 of the European Parliament and of the Council on credit rating agencies, C/2019/5806, [2019] OJ L201/37.
9 Commission Implementing Decision (EU) 2019/1276 of 29 July 2019 repealing Commission Implementing Decision 2012/627/EU on the recognition of the legal and supervisory framework of Australia as equivalent to the requirements of Regulation (EC) No 1060/2009 of the European Parliament and of the Council on credit rating agencies, C/2019/5800, [2019] OJ L201/17.
10 Commission Implementing Decision (EU) 2019/1281 of 29 July 2019 repealing Implementing Decision 2014/245/EU on the recognition of the legal and supervisory framework of Brazil as equivalent to the requirements of Regulation (EC) No 1060/2009 of the European Parliament and of the Council on credit rating agencies, C/2019/5805, [2019] OJ L201/34.
11 Commission Implementing Decision (EU) 2019/1277 of 29 July 2019 repealing Implementing Decision 2012/630/EU on the recognition of the legal and supervisory framework of Canada as equivalent to the requirements of Regulation (EC) No 1060/2009 of the European Parliament and of the Council on credit rating agencies, C/2019/5801, [2019] OJ L201/20.
12 Commission Implementing Decision (EU) 2019/1278 of 29 July 2019 repealing Implementing Decision 2014/248/EU on the recognition of the legal and supervisory framework of Singapore as equivalent to the requirements of Regulation (EC) No 1060/2009 of the European Parliament and of the Council on credit rating agencies, C/2019/5802, [2019] OJ L201/23.
13 Commission Implementing Decision (EU) 2018/2047 of 20 December 2018 on the equivalence of the legal and supervisory framework applicable to stock exchanges in Switzerland in accordance with Directive 2014/65/EU of the European Parliament and of the Council, C/2018/2047, [2018] OJ L327/77.
14 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, [2004] OJ L145/1 (‘MiFID I’); Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, [2014] OJ L173/349 (‘MiFID II’); Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012, [2014] OJ L173/84 (‘MiFIR’).
15 See eg for Liechtenstein: N Raschauer, ‘Die Umsetzung des EU-Finanzmarktrechts in Liechtenstein’ in Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung (ZfRV) (2017), p 244; and C Frommelt, ‘Liechtenstein and the EEA’ in F Arnesen et al (eds), Agreement on the European Economic Area – A Commentary (Nomos, 2018), para 47; for Iceland see eg R Helgadóttir and M Einarsdóttir, ‘Iceland and the EEA’ in Agreement on the European Economic Area – A Commentary, paras 6–7; for Norway see eg F Arnesen, ‘Norway and the EEA’ in Agreement on the European Economic Area – A Commentary, paras 32–33.
16 See COM (2016) 855 final, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Call for Evidence – EU regulatory framework for financial services (2016).
17 E Ferran, ‘Regulatory Parity in Post-Brexit UK-EU Financial Regulation: EU Norms, International Financial Standards or a Hybrid Model?’ in K Alexander et al, Brexit and Financial Services: Law and Policy (Hart Publishing, 2018), p 3.
18 F Lafarge, ‘Les autorités européennes de surveillance, les régulations financière et bancaire et l'union bancaire européennes’ (2013) Annales de la régulation de Paris 1, nr 3, pp 4–9, www.ssrn.com/abstract=2261114.
19 European Commission, ‘The Lamfalussy Architecture’, https://ec.europa.eu/info/business-economy-euro/banking-and-finance/regulatory-process-financial-services/regulatory-process-financial-services_en#the-lamfalussy-architecture.
20 Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board, [2010] OJ L331/1.
21 See for example information from the Belgian National Bank, ‘European System of Financial Supervision’, www.nbb.be/en/financial-oversight/prudential-supervision/european-supervision-system; for additional information see Lafarge, note 18 above, p 9.
22 Regulation (EU) 2019/2175 of the European Parliament and of the Council of 18 December 2019 amending Regulation (EU) No 1093/2010 establishing a European Supervisory Authority (European Banking Authority); Regulation (EU) No 1094/2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority); Regulation (EU) No 1095/2010 establishing a European Supervisory Authority (European Securities and Markets Authority); Regulation (EU) No 600/2014 on markets in financial instruments; Regulation (EU) 2016/1011 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds; Regulation (EU) 2015/847 on information accompanying transfers of funds, [2019] OJ L334/1.
23 Directive (EU) 2019/2177 of the European Parliament and of the Council of 18 December 2019 amending Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II); Directive 2014/65/EU on markets in financial instruments; Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money-laundering or terrorist financing, [2019] OJ L334/155.
24 E Howell, ‘EU Agencification and the Rise of ESMA: Are Its Governance Arrangements Fit for Purpose?’ (2019) 78 Cambridge Law Journal 324, pp 345–46.
25 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC, [2010] OJ L331/84 (‘ESMA Regulation’).
26 See also T Tridimas, ‘Financial Supervision and Agency Power: Reflections on ESMA’ in N Nic Shuibhne and L Gormley (eds), From Single Market to Economic Union (Oxford University Press, 2012), p 55.
27 N Moloney, The Age of ESMA: Governing EU Financial Markets (Hart Publishing, 2018), p 1.
28 Ibid.
29 Ibid, p 59.
30 Meroni v Haute autorité, 9/56, EU:C:1958:7
31 See also Howell, note 24 above, p 329.
32 In essence, these are: Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes, [1997] OJ L84/22; Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, [1998] OJ L166/45; Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities, [2001] OJ L184/1; Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements, [2002] OJ L168/43; Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), [2003] OJ L96/16; Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC, [2003] OJ L345/64; Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, [2004] OJ L145/1; Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, [2004] OJ L390/38; (as amended by the Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, [2004] OJ L390/38, Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC, [2003] OJ L345/64 and Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, [2007] OJL/27); Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), [2009] OJ L302/32 (as amended by Directive 2014/91/EU of the European Parliament and of the Council of 23 July 2014 amending Directive 2009/65/EC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) as regards depositary functions, remuneration policies and sanctions, [2014] OJ L257/186; Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast), [2006] OJ L177/201; Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies, [2009] OJ L302/1; the relevant parts of Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council, [2003] OJ L35/1; Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, [2005] OJ L309/15 and Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, [2002] OJ L271/16. This list is by no means exhaustive and is being amended constantly.
33 Art 1(2) ESMA Regulation.
34 Art 1(3) ESMA Regulation.
35 Art 43(2) ESMA Regulation.
36 Art 9(5) ESMA Regulation.
37 Art 8(2)(f) ESMA Regulation.
38 Art 17(6) ESMA Regulation.
39 Art 18 ESMA Regulation.
40 Art 39 ESMA Regulation.
41 Art 39 ESMA Regulation.
42 Art 17(3) ESMA Regulation.
43 Art 18(3)–(4) ESMA Regulation.
44 Arts 17, 18, 19 ESMA Regulation.
45 Art 60 ESMA Regulation.
46 Art 61(1) ESMA Regulation.
47 Art 61(3) ESMA Regulation.
48 Art 1(1) EEA.
49 For a more detailed introduction to the structural background of the EEA legal system, see CNK Franklin, ‘Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law’ in (2017) 19 Cambridge Yearbook of European Legal Studies 165, pp 167–73.
50 Ibid, p 169.
51 However, these principles are de facto (‘quasi’) applied by case law, in particular by the EFTA Court, the CJEU and the competent courts in Liechtenstein; see also Protocol 35 to the EEA.
52 Opinion 1/91 (EEA I), EU:C:1991:490.
53 See G Baur, ‘Decision Making Procedure and Implementation of New Law’ in C Baudenbacher (ed), The Handbook of EEA Law (Springer, 2015), pp 45, 47–51.
54 Art 93(2) EEA.
55 Baur, The European Free Trade Association, note 2 above, p 139.
56 G Baur, ‘ Preliminary Rulings in the EEA – Bridging (Institutional) Homogeneity and Procedural Autonomy by Exchange of Information ’ in EFTA Court (ed), The EEA and the EFTA Court – Decentred Integration (Hart Publishing, 2014), p 170.
57 Art 102(1) EEA.
58 Art 7(a) EEA.
59 Art 7(b) EEA e contrario.
60 See for example F Arnesen and HH Fredriksen, ‘Preamble’ in Agreement on the European Economic Area – A Commentary, note 15 above, paras 38–40.
61 See for example Art 102(1) EEA.
62 Baur, ‘Decision-Making Procedure and Implementation of New Law’, note 53 above, p 53.
63 See Chapter B.II.
64 See in particular Arts 17–20 ESMA Regulation as well as Chapter C.II.3.a.
65 In practice, there are hardly ever votes; most decisions are taken by consensus. The formal right to vote thus loses its meaning from a ‘sovereignist’ point of view.
66 See P Bussjäger and C Frommelt, ‘Europäische Regulierung und nationale Souveränität. Praxisfragen zur Übernahme europäischen Rechts ausserhalb der EU’ (2017) Liechtensteinische Juristenzeitung 40, p 42; T Bekkedal, ‘Third State Participation in EU Agencies: Exploring the EEA Precedent’ (2019) Common Market Law Review, 381; C Neier and A Entner-Koch, ‘Herausforderungen im Rahmen des EWR-Übernahmeverfahrens‘ (2020) Europarecht 69, p 81.
67 Art 102(1) EEA.
68 EEA Council, EEE 1608/17, Minutes of the 47th meeting (2017), p 18.
69 Art 93(2) EEA.
70 See Section V.B.2.
71 For terminology, see Bussjäger and Frommelt, note 66 above, p 34; as an example of such multiphase legislation, see European Securities and Markets Authority Decision (EU) 2019/509 of 22 March 2019 renewing the temporary prohibition on the marketing, distribution or sale of binary options to retail clients, [2019] OJ L85/19.
72 Art 93(2) EEA.
73 C Frommelt, ‘The European Economic Area: A Flexible but Highly Complex Two-Pillar System’ in S Gstöhl and D Phinnemore (eds), The European Union, Its Neighbours, and the Proliferation of ‘Privileged Partnerships’ (Routledge Studies in European Foreign Policy, Routledge, Taylor & Francis Group, 2020), p 56.
74 Available at www.efta.int/sites/default/files/documents/eea/eea-news/2010-10-14-EEA-EFTA-ECOFIN-joint-conclusions.pdf, reproduced in the annex to G Baur, ‘Les autorités de surveillance européennes et les Etats EEE-AELE’ in C Kaddous and S Matthey (eds), Services Financiers (Schulthess, 2016), p 363.
75 See note 66 above.
76 Art 1 of Decision of the EEA Joint Committee No 201/2016 of 30 September 2016, [2017] OJ L46/22.
77 Ibid.
78 See Rec 6 of Regulation (EU) No 513/2011 of the European Parliament and of the Council of 11 May 2011 amending Regulation (EC) No 1060/2009 on Credit Rating Agencies, [2011] OJ L145/30: ‘ESMA should be exclusively responsible for the registration and supervision of credit rating agencies in the Union’.
79 Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps, [2012] OJ L86/1.
80 Art 61 ESMA Regulation.
81 Art 6 of Protocol 8 to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (SCA) on the tasks and powers of the EFTA Surveillance Authority in the area of financial supervision.
82 See note 78 above.
83 Agreement amending the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice by adding a new Art 25a and a new Protocol 8 to the Agreement of 6 October 2016.
84 Y Ito, ‘EEA Law, Unexpected Success: A Japanese Perspective’, in EFTA Court (ed) The EEA and the EFTA Court (Hart Publishing, 2014), p 517.
85 Baur, ‘Decision-Making Procedure and Implementation of New Law’, note 53 above, p 47.
86 J Breidlid and M Vahl, ‘Current and Future Challenges for the EEA’ (2015) EFTA Bulletin 32, pp 37–38.
87 See Section III.A.
88 M Emerson, ‘Which Model for Brexit?’ (Centre of European Policy Studies 2016), Special Report 147, p 3.
89 Baur, ‘Les autorités de surveillance européennes et les Etats EEE-AELE’, note 74 above, p 364.
90 Art 102(1) EEA.
91 Baur ‘Decision-Making Procedure and Implementation of New Law’, note 53 above, pp 57, 63.
92 J Pelkmans and P Böhler, ‘The EEA Review and Liechtenstein's Integration Strategy’ (Centre for European Policy Studies, 2013), p 52; C Frommelt and S Gstöhl, ‘Liechtenstein and the EEA: the Europeanization of a (Very) Small State (Europautredningen, 2011), p 49.
93 Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, [2008] OJ L52/3; Draft Joint Committee Decision (JCD) incorporating the act into the EEA Agreement sent to the Commission.
94 For details, see C Frommelt, ‘In Search of Effective Differentiated Integration: Lessons from the European Economic Area (EEA)’ (doctoral thesis, ETH Zurich, 2018), pp 169, 175.
95 EFTA Secretariat, ‘Joint Committee Incorporates Record Number of Decisions into the EEA Agreement in 2019’ (12 June 2019), https://www.efta.int/EEA/news/Joint-Committee-incorporates-record-number-Decisions-EEA-Agreement-2019-516036.
96 See eg Statement by T Mayr-Harting, draft minutes of the 50th meeting of the EEA Council, 20 November 2018, EEE 1604/19, p 16.
97 See eg Statement by I Eriksen Søreide, draft minutes of the 50th meeting of the EEA Council, 20 November 2018, EEE 1604/19, p 8.
98 Section III.B.2. above.
99 COM/2014/0509 final, Report from the Commission to the European Parliament and the Council on the operation of the European Supervisory Authorities (ESAs) and the European System of Financial Supervision (ESFS).
100 See Editors, ‘Editorial Comments: Is the “Indivisibility” of the Four Freedoms a Principle of EU Law?’ (2019) 56 Common Market Law Review 1189, p 1199; G Baur, ‘Privileged Partnerships: The Partner Countries’ (Institutional) Perspectives’ in The European Union, Its Neighbours, and the Proliferation of ‘Privileged Partnerships’, note 73 above, p 23.
101 P Eeckhout [on behalf of the European Parliament], Future Relations between the EU and the UK: Options after Brexit (Study requested by the INTA Committee, 2018), p 6.
102 Baur, ‘Privileged Partnerships: The Partner Countries’ (Institutional) Perspectives’, note 100 above, p 24.
103 For an introduction, see Oesch, M, Switzerland and the European Union (Nomos, 2018)Google Scholar.
105 See Fidium Finanz, C-452/04, EU:C:2006:631.
106 See Oesch, note 103 above, para 58.
107 ‘Electricité: Solution transitoire possible avec l'UE, mais…’ (SWI, 29 January 2015), https://www.swissinfo.ch/fre/toute-l-actu-en-bref/electricit%C3%A9--solution-transitoire-possible-avec-l-ue--mais---/41244448.
108 See note 14 above.
109 F Bürki Kronenberg and D Gerber, ‘Finanzmärkte: Die neuen EU-Vorschriften und ihre Folgen für die Schweiz’ (2012) 10 Wirtschaftsleben 18, n 5.
110 See Art 39(1).
111 See Arts 36 and 37 of MiFID II, which refers only to ‘other Member States’ in terms of access to regulated markets, central counterparties, clearing and settlement systems, and the right to choose a settlement system, and explicitly Rec 109: ‘The provision of services by third-country firms in the Union is subject to national regimes and requirements. Firms authorised in accordance with them do not enjoy the freedom to provide services and the right of establishment in Member States other than the one where they are established. Where a Member State considers that the appropriate level of protection for its retail clients or retail clients who have requested to be treated as professional clients can be achieved by the establishment of a branch by the third-country firm it is appropriate to introduce a minimum common regulatory framework at Union level with respect to the requirements applicable to those branches and in light of the principle that third-country firms should not be treated in a more favourable way than Union firms’.
112 See also R Sethe, ‘Das Drittstaatenregime von MiFIR und MiFID II’, (2014) Schweizerische Zeitschrift für Wirtschaftsrecht 615, p 623.
113 See Art 88(1) MiFID II.
114 SWD(2017) 102 final, Commission staff working document on EU equivalence decisions in financial services policy: An assessment, pp 7, 10.
115 See for example the need to join an accredited investor compensation scheme (Art 14 MiFID II).
116 SWD(2017) 102 final, note 114 above, p 8.
117 Switzerland FDFA, ‘Automatischer Informationsaustausch in Steuersachen (ehem. Zinsbesteuerungsabkommen)’ (24 June 2020), www.eda.admin.ch/dea/de/home/bilaterale-abkommen/ueberblick/bilaterale-abkommen-2/zinsbesteuerung.html (German).
118 Switzerland Federal Department of Finance, ‘Integrität des Finanzplatzes’ (28 October 2020), www.efd.admin.ch/efd/de/home/themen/wirtschaft--waehrung--finanzplatz/finanzmarktpolitik/fidleg-finig/fb-fidleg-finig.html.
119 CCPs interpose themselves between counterparties to a derivative contract, becoming the buyer to every seller and the seller to every buyer. In doing so, CCPs become the focal point for derivative transactions, thus increasing market transparency and reducing the risks inherent in derivatives markets.
120 See Commission Implementing Decision (EU) 2015/2042 of 13 November 2015 on the equivalence of the regulatory framework of Switzerland for central counterparties to the requirements of Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories, [2015] OJ L298/42; Regulation (EU) No 648/2012 is also known as the European Market Infrastructure Regulation (EMIR).
121 Commission Implementing Decision (EU) 2018/2047 of 20 December 2018 on the equivalence of the legal and supervisory framework applicable to stock exchanges in Switzerland in accordance with Directive 2014/65/EU of the European Parliament and of the Council, C/2018/2047, [2018] OJ L327/77.
122 Ibid, Rec 32.
123 See also SWD(2017) 102 final, note 114 above, pp 7, 12.
124 Political Declaration, note 3 above, paras 35–37.
125 The Future Relationship with the EU – The UK's Approach to Negotiations (February 2020) 3: ‘A Comprehensive Free Trade Agreement (CFTA) should be at its core. This Agreement should be on the lines of the FTAs already agreed by the EU in recent years with Canada and with other friendly countries …’.
126 Eeckhout, note 101 above, p 8.
127 The Future Relationship with the EU, note 125 above, paras 53–55, 63.
128 European Commission, Press Release: Capital Markets Union: Political Agreement on a Stronger and More Integrated European Supervisory Architecture, Including on Anti-money Laundering (21 March 2019); see above Section II.A.
129 Meroni v Haute autorité, note 30 above.
130 Moloney, N, ‘Brexit and EU Financial Governance: Business as Usual or Institutional Change?’ (2017) 42(1) European Law Review 112Google Scholar.
131 Ibid.
132 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 1093/2010 establishing a European Supervisory Authority (European Banking Authority); Regulation (EU) No 1094/2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority); Regulation (EU) No 1095/2010 establishing a European Supervisory Authority (European Securities and Markets Authority); Regulation (EU) No 345/2013 on European venture capital funds; Regulation (EU) No 346/2013 on European social entrepreneurship funds; Regulation (EU) No 600/2014 on markets in financial instruments; Regulation (EU) 2015/760 on European long-term investment funds; Regulation (EU) 2016/1011 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds; Regulation (EU) 2017/1129 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (COM(2017) 536 final).
133 For an overview, see G Baur ‘Post-2020 UK-Switzerland Trade Agreement also for the EU?’ (EFTA Studies, 2 May 2020), efta-studies.org.
134 HM Treasury and Federal Department of Finance, ‘Joint Statement on Deepening Cooperation in Financial Services’ (30 June 2020), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/896778/Joint_Statement_between_Her_Majesty_s_Treasury_and_the_Federal_Department_of_Finance_on_negotiating_a_Mutual_Recognition_Agreement_on_financial_services.pdf.
135 Ibid, para 7.
136 Joint statement, note 134 above, para 13.
137 Ibid, para 11.
138 COM(2018) 890 final, Communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank, the European Economic and Social Committee, the Committee of the Regions and the European Investment Bank: Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019: Implementing the Commission's Contingency Action Plan (2018), pp 5–6.
139 See note 7 above.