Abstract
This chapter seeks to provide and analyse the international and EU framework that relates to the regulation and supervision of investment and financial services. Within this context, the EU forms the most complex and sophisticated single system of financial integration attempted to date. As seen and examined in the wider global economic integration process, the Single European Market in financial services has influenced and has been influenced by powerful international integration forces. Nevertheless, the Single Market project remains unique in the world history for its legal, political and socio-economic achievements and progress.
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Notes
The origins of GATT can be found in the draft treaty establishing the International Trade Organisation (ITO). The ITO was to have been one of the three Bretton Woods institutions. The original proposals for the ITO originated in interagency committees in the US administration meeting between the spring of 1943 and 1945. The ambitious ITO proposal, however, was not adopted by the US Congress. When the ITO treaty failed, only the non-discriminatory trade measures in the shape of the GATT, which had been adopted in 1947, remained. Hence, it was not until the establishment of the WTO in 1995 that an institution equivalent to the IMF and the World Bank was established for trade. The most ambitious effort at deepening and widening GATT was the Uruguay Round of international trade negotiations. It was launched at Punta del Este, Uruguay, in September 1986 by the Trade Ministers of 100 countries. By the time the negotiations were formally concluded in Marrakesh, Morocco, in April 1994 there were 125 participating countries; see Hocking, B. and McGuire, S., Trade Politics: International, Domestic and Regional Perspectives (London: Routledge, 1999);
Odell, J. and Eichengreen, B., ‘The United States, the ITO and the WTO; Exit Options, Agent Slick, and Presidential Leadership’, in Krueger, A. (ed.), The WTO as an International Organization (Chicago: University of Chicago Press, 1998);
Trebilcock, M., and Howse, R., The Regulation of International Trade (London: Routledge, 1998).
See Kock, K., International Trade Policy and the GATT, 1947–1967 (Stockholm: Almquist & Wicksell, 1969);
Hoekman, B. and Kostecki, M., The Political Economy of the World Trading System; from GATT to WTO (Oxford: Oxford University Press, 1996). With regard to services, the Uruguay Round of the WTO created the General Agreement on Trade in Services (GATS), a relatively new global trade regime that, since its creation at the end of 1993, has already begun to have a liberalising effect on markets for services. The GATS establishes a basic set of rules for world trade in services, a clear set of obligations for each member country and a legal structure for ensuring that those obligations are observed. In addition to the initial provisions of the original Agreement, the last couple of years have seen the GATS enhanced with multilateral deals to open the world markets for financial services and telecommunications. The Financial Services Agreement e.g., completed on 13 December 1997, included market-opening commitments that took effect on 1 March 1999. Currently, financial services, like all services, are included in the new services negotiations, which began in January 2000; see GATS, Article XIX.
While international organisations, such as the OECD, the WTO and the IMF, operate on the basis of ‘interdependence’ and do not interfere with the policy-making of their member countries, integration requires the creation of a ‘supranational organisation’, such as the European Coal and Steel Community (ECSC) or the EU; see Dedman, M., The Origins and Development of the European Union 1945–95 (London: Routledge, 1996) 7.
See Molle, W., The Economics of European Integration: Theory, Practice, Policy (Aldershot: Ashgate, 2001) 43;
Pollard, S., Peaceful Conquest, the Industrialisation of Europe 1760–1970 (Oxford: Oxford University Press, 1981);
Wallace, W. (ed.), The Dynamics of European Integration (London: Pinter Publishers, 1990) 9.
On the setting of the European process in the framework of a worldwide development towards internationalisation, see Kenwood, A. and Lougheed, A., The Growth of the International Economy 1820–2000: An Introductory Text (London: Routledge, 4th ed., 1999). 9 Especially in circles of the Resistance the conviction was growing that nationalism was at the roots of the disaster that fascism had wrought in Europe and that, therefore, Europe should be rebuilt in a sphere of increased international integration, especially in economic terms; see Molle, ibid., 59;
Lipgens, W. et al., A History of European Integration, vol. 1, 1945–1947, The Formation of the European Unity Movement (London: Clarendon and Oxford University Press, 1982). That aim was to be achieved, not through unrealistic plans for complete political union, but through a strategy of gradual integration of certain functions;
see Haas, E., The Uniting of Europe: Political, Social and Economic Forces 1950–57 (Stanford: Stanford University Press, 1958);
Mitrany, D., A Working Peace System (Chicago: Quadrangle Books, 1966).
It was then perceived that economic union without monetary union is not a political equilibrium, as the liberalisation of capital movements had made intermediate exchange-rate arrangements like the pegged-but-adjustable rates of the narrow-band European Monetary System (EMS) more difficult to sustain; see Eichengreen, B., European Monetary Unification: Theory, Practice, and Analysis (Cambridge: MIT Press, 1997); see also Chapter 7, Section B.1.5.
See Weatherill, S., Law and Integration in the European Union (Oxford: Clarendon Press, 1995) 8.
Cited in Weigall, D. and Stirk, P. (eds), The Origins and Development of the European Community (Leicester: Leicester University Press, 1992) 58–9.
Duchene, F., Jean Monnet: The First Statesman of Interdependence (New York: Norton, 1994) Chapters 6 and 7.
Monnet, J., Memoirs (New York: Doubleday & Company, 1978) 272–3.
As one long-standing member of the European federalist movement put it: ‘Federalists plan to form a small nuclei (sic) of nonconformists seeking to point out that the national states have lost their proper rights since they cannot guarantee the political and economic safety of their citizens. They also insist that European union should be brought about by the European populations, and not by diplomats, by directly electing a European constituent assembly, and by the approval through a referendum, of the constitution that this assembly would prepare’; see Spinelli, A., ‘The Growth of the European Movement since the Second World War’, in Hodges, M. (ed.), European Integration (Harmondsworth: Penguin, 1972) 68.
See also Friedrich, C., Trends in Federalism in Theory and Practice (New York: Prager, 1968);
Forsyth, M., Unions of States: The Theory and Practice of Confederation (Leicester: Leicester University Press, 1981);
Bosco, A., The Federal Idea: The History of Federalism from Enlightenment to 1945, Vol. I (London: Lothian Foundation Press, 1991);
Burgess, M., Federalism and European Union: The Building of Europe, 1950–2000 (London: Routledge, 2000).
At the core of the agenda of functionalists is the prioritisation of human needs or public welfare, as opposed to the sanctity of the nation-state or the celebration of any particular ideological credo; see Mitrany, op. cit., note 9; Taylor, P., ‘The Functionalist Approach to the Problem of International Order: A Defence’ (1968) 3 Political Studies 16;
Dehousse, R., Rediscovering Functionalism (Harvard Jean Monnet Working Paper No. 70, 2000).
Neo-functionalism sees integration in process terms: polity-building is seen as the result of a wide range of converging processes. See Haas, op. cit., note 9; Haas, E., Beyond the Nation State (Stanford: Stanford University Press, 1964);
Deutsch, K. et al., Political Community and the North Atlantic Area: International Organisation in the Light of Historical Experience (Princeton: Princeton University Press, 1957);
Lindberg, L., The Political Dynamics of European Economic Integration (Stanford: Stanford University Press, 1963).
Neo-liberalism is a theory of how the structural properties of anarchy provide particular sets of limitations upon possibilities for action in international politics; see Waltz, K., Theory of International Politics (New York: McGraw Hill, 1979);
Stone, A., ‘What is a Supranational Constitution? An Essay in International Relations Theory’ (1994) 3 Review of Politics 56. Neo-liberal institutionalism focuses on the general problem of international cooperation, examining how the structure of the international system constrains policy-makers’ ability to enter mutually beneficial agreements and how international institutions, by mitigating these systemic constraints, facilitate policy-makers’ ability to achieve cooperative outcomes;
see Keohane, R., ‘The Demand for International Regimes’ (1982) 36 International Organization 325;
Keohane, R., After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984);
Axelrod, R., The Evolution of Cooperation (New York: Basic Books, 1984);
Keohane, R., Neo-Realism and Its Critics (New York: Columbia University Press, 1986);
Oatley, T., Monetary Politics (Ann Arbor: University of Michigan Press, 1997).
Behaviouralists study the behaviour of agents — political leaders, parties, voters etc. — competing to seize power. They believe that political actors are far more interesting compared to institutions. See Sanders, D., ‘Behavioural Analysis’, in Marsh, D. and Stoker, G. (eds), Theory and Methods in Political Science (Basingstoke: Palgrave, 1995).
New institutionalism was a rebellion against behaviouralism. Neo-institutionalists insist that political behaviour is determined by the nature of political institutions; see Skocpol, T., ‘Bringing the State Back In: Strategies of Analysis in Current Research’, in Evans, P., Rieschemeyer, D. and Skocpol, T. (eds), Bringing the State Back In (Cambridge: Cambridge University Press, 1985);
March, J. and Olsen, J., Rediscovering Institutions (New York: Free Press, 1989);
Armstrong, K., ‘The New Institutionalism’, in Craig, P. and Harlow, C. (eds), Law Making in the European Union (London: Kluwer, 1998).
The point of departure for the multilevel governance approach is the existence of overlapping competencies among multiple levels of governments and the interaction of political actors across those levels. Political control is thus variable, not constant across policy areas; see Marks, G. et al., Governance in the European Union (London: Sage, 1996) 41;
Jachtenfuchs, M., ‘Theoretical Perspectives on European Governance’ (1995) 1 ELJ 115;
Marks, G., Hooghe, L. and Blank, K., ‘European Integration since the 1980’s: State-Centric versus Multi-Level Governance’ (1996) 34 JCMS 341;
Scott, C., ‘The Governance of the European Union: The Potential for Multi-Level Control’ (2002) 1 ELJ 59.
See Rosamond, B., Theories of European Integration (Basingstoke: Palgrave, 2000).
Segré Committee, The Development of a European Capital Market (November 1966).
The Report found that ‘active participation by various types of institution in the creation of a European capital market may be hampered by the rules under which they operate and the supervisory controls to which they are subject’; ibid., 32. For an extensive analysis of the regulatory and supervisory obstacles faced by investment and financial intermediaries, see Moloney, N., EC Securities Regulation (Oxford: Oxford University Press, 2002) 308–10.
In October 1970, a group under the chairmanship of Pierre Werner (then prime minister of Luxembourg) produced a report that detailed how EMU could be attained in stages by 1980; see Werner, P. et al., Report to the Council and the Commission on the Realisation by Stages of Economic and Monetary Union in the Community (Supplement to Bulletin-II 1970 of the European Communities, 1970, hereinafter ‘Werner Report’). Although the objective of EMU was unanimously endorsed by the ECOFIN Council of March 1971, the Werner Report was never implemented.
For an analysis of the Werner Report, see Baer, G. and Padoa-Schioppa, T., ‘The Werner Report Revisited’, in Collection of Papers annexed to Report on Economic and Monetary Union (Delors Report) (1989).
In spite of previous unsuccessful work on the coordination of financial services law, the first important step in the direction of genuine harmonisation was introduced in banking with the First Banking Directive (FBD); see First Council Directive 77/780/EEC of 12 December 1977 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ L 322/30, 17 December 1977). The rationale behind the Directive was the equal treatment of credit institutions, formed for the first time, and their branches. Hence, Article 4(1) of the FDB prescribed that Member States were permitted to make the commencement of banking activities, performed by branches of Community credit institutions, subject to authorisation ‘according to the law and procedure applicable to credit institutions established on their territory’. Major obstacles, however, remained in force, especially with regard to national legislation on the authorisation and supervision of branches in the host State. Moreover, the definition of what amounts to a ‘bank’ has troubled the harmonisation efforts and has long been regarded as one of the thorniest issues in European banking regulation; see Zavvos, G., ‘Towards a European Banking Act’ (1988) 2 CMLRev 263.
European Commission, Completing the Internal Market: White Paper to the Council (COM(85) 310 final, 28 June 1985, hereinafter ‘White Paper’).
In addition to the Commission, numerous universities, fifteen consultant firms and 11000 enterprises cooperated in the exercise; see Cockfield, A., The European Union: Creating the Single Market (London: Chancery Law Publishing, 1994) 90.
See Bulmer, S., ‘Setting and Influencing the Rules’, in Mayes, D. (ed.), The Evolution of the Single European Market (Cheltenham: Edward Elgar, 1997) 36.
See Fitchew, G., ‘Political Choices’, in Buxbaum, R. et al., European Business Law: Legal and Economic Analysis on Integration and Harmonisation (Berlin: Walter de Gruyter, 1991) 4.
Chalmers, D. and Szyszczak, E., European Union Law Vol. II (Aldershot: Ashgate, 1998) 35.
See Eichengreen, B., ‘European Monetary Unification’ (1993) 1 Journal of Economic Literature 31;
Giovannini, A., ‘Central Banking in a Monetary Union: Reflections on the Proposed Statute of the European Central Bank’ (1993) Carnegie-Rochester Conference Series on Public Policy 38.
This view, however, does not appear very persuasive. Much more credible is Steil’s suggestion: ‘Reading the Commission’s version of history in the White Paper, it is clear that the minimum harmonization principle is not seen simply as a necessary response to negative externalities deriving from free competition among rules, but rather that competition among rules is seen as a necessary but regrettable consequence of the Commission’s legislative inability to achieve full harmonization’; see Steil, B., Competition, Integration and Regulation in EC Capital Markets (London: Royal Institute of International Affairs, 1993) 18.
See Majone, G., Regulating Europe (London: Routledge, 1996) 269. This, however, is not always true in practice; see Chapter 5, Section B.2.
On the interrelationship between the two concepts of minimum harmonisation and mutual recognition, see Dehousse, R., ‘Integration v. Regulation? On the Dynamics of Regulation in the European Community’ (1992) 4 JCMS 383, 396;
Majone, G., Mutual Recognition in Federal Type Systems (European University Institute WP No. 93/1, 1993) 8–9;
Fitchew, G., ‘Towards a completed market in financial services: The White Paper and beyond’, in Castello-Branco, M. and Pelkmans, J. (eds), The Internal Market for Financial Services (Maastricht: European Institute of Public Administration, 1987) 132.
See below Chapter 5, Section C.1.3; Chapter 6, Section C.7. The European Commission predicted the problems posed for the internal market by a lack of trust at a relatively early stage. It recognised at least three situations where lack of trust might undermine mutual recognition: (a) Community legislation could not require mutual recognition if the standards designated inspection bodies had to meet were not equivalent, (b) in areas where there was no Community legislation manufacturers could not benefit from mutual recognition if the authorities in the host country did not have full confidence in the credibility of the body that carried out tests in the home State, and (c) purchasers had to have faith in the certification procedures in exporting States if they were not to insist in a product being certified twice, once in the home country and once in the host; see European Commission, Proposal for a Council Decision concerning the modules for the various phases of the conformity assessment procedures which are intended to be used in the technical harmonization directives (COM(89) 209 final, OJ C 231/3, 8 September 1989);
European Commission, A global approach to certification and testing quality measures for industrial products (COM(89) 209 final, OJ C 267/3, 19 October 1989).
Majone, G., Mutual Trust, Credible Commitments and the Evolution of the Rules of the Single Market (European University Institute WP No. 95/1, 1995) 16.
Steil, B., Regional Financial Market Integration: Learning from the European Experience (London: Royal Institute of International Affaires, 1998) 3.
Article 100a EEC incorporated in Article 95 EC Treaty. On this feature of the SEA, see Moravcsik, A., ‘Negotiating the Single European Act’, in Keohane, R. and Hoffmann, S. (eds), The New European Community: Decision-Making and Institutional Change (Boulder: Westview Press, 1991) 41 et seq. Weiler describes Article 100a as ‘the single most important provision of the SEA’ for introducing majority voting in the Council;
see Weiler, J., The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ and other Essays on European Integration (Cambridge: Cambridge University Press, 1999) 68.
For implications on financial services, see Usher, J., ‘Financial Services in EEC Law’ (1988) 1 ICLQ 144; see also Chapter 6, Section B.2.1.1.2.
See Wallace, H. and Wallace, W., Policy-Making in the European Union (Oxford: Oxford University Press, 4th ed., 2000) 109.
See Horn, N., ‘The Monetary Union and the Internal Market for Banking and Investment Services’, in Norton, J.J. (ed.), Yearbook of International Financial and Economic Law 1998 (London: Kluwer Law International, 1999) 134.
Since the 1970s, there has been increasing integration between international financial markets — particularly the euromarkets — and between the national financial markets, a trend that accelerated in the 1980s. The expansion of the markets for international bonds, euronotes and euro commercial paper has strongly increased the possibilities of holding both international capital assets and taking up international credit; see Banink, H., Financial Integration in Europe (Dordrecht: Kluwer, 1993) 9.
Zavvos, G., ‘Banking Integration and 1992: Legal Issues and Policy Implications’ (1990) Harvard International Law Journal 463, 465. While the interdependence between capital movement and financial services is easy to be identified, it may be surprising that monetary unification is connected with the liberalisation of the financial sector. Not many would dispute, however, that the free movement of capital constitutes a fundamental part of a genuine monetary union, besides being an essential corollary to financial services; see Eichengreen, op. cit., note 10;
Gamble, A., ‘EMU and European Capital Markets: Towards a Unified Financial Market’ (1991) 2 CMLRev 319, 326.
European Commission, Progress Report on the European Monetary System and the Liberalisation of Capital Markets (COM(1987) 650 final, 17 December 1987).
Case C-101/94 Commission v Italy [1996] ECR I-2691. For an analysis of the case, see Andenas, M., ‘Italian Nationality Requirement and Community Law’ (1996) 17 Company Lawyer 219.
See generally, O’Neill, N., ‘The Investment Services Directive’, in Cranston, R. (ed.), The Single Market and the Law of Banking (London: Lloyd’s of London Press, 2nd ed., 1991). The Preamble to the ISD describes it in Recital 1 as being ‘essential to the achievement of the internal market (…) from the point of view both of the right of establishment and of the freedom to provide financial services, in the field of investment firms’ and links it directly to the White Paper. The ISD explicitly refers to Article 57(2) EC (now Article 47) alone as the enabling provision of the Treaty. This is unequivocally correct as regards the enactment of the companion principles of home country control and mutual recognition on a basis of harmonised prudential regulation;
see Kondgen, J., ‘Rules of Conduct: Further Harmonisation?’ in Ferrarini, G. (ed.), European Securities Markets: The Investment Services Directive and Beyond (London: Kluwer Law, 1998) 118.
Whereas under the SBD, banking is defined to embrace securities services, under the ISD, investment firms are defined as those that undertake broking, dealing, underwriting and investment management in respect of a wide range of financial instruments, including derivatives, as specified in Annex B of the directive; see SBD, Article 1(6); ISD, Article 1(2). Hence, the ISD also applies to banks that provide investment services. The European passport is also frequently referred to as ‘Euro-passport’, ‘single licence’ or ‘single passport’; see Schneider, U., ‘The Harmonisation of EC Banking Law: The Euro-Passport to Profitability and International Competitiveness of Financial Institutions’ (1990) 22 Law & Policy in International Business 261, 269.
See L’Heveder, C., ‘The Investment Services Directive and its implications for participants in Europe’s financial markets’ (1996) 1 JIBFL 5.
See Ashall, P., ‘The Investment Services Directive: What was the Conflict All About?’ in Andenas, M. and Kenyon-Slade, S. (eds), EC Financial Market Regulation and Company Law (London: Sweet & Maxwell, 1993) 91. The main driving force behind the harmonization provisions of the ISD appears to have been the perceived need to ensure competitive equality between universal banks and non-bank investment firms;
see Scott-Quinn, B., ‘EC Securities Markets Regulation’, in Steil, B. (ed.), International Financial Market Regulation (Chichester: John Wiley, 1994) 121.
ISD, Article 18(2); see Chapter 5, Section C.2.2.1; cf. SBD, Article 14(2), according to which the host Member State shares responsibility for the supervision of liquidity in corporation with the regulators of the home Member State, whereas the host country retains complete responsibility for the measures resulting from its monetary policy. The former exemption of home country control seems necessary because of the insufficient harmonisation of liquidity standards; see Gruson, M. and Feuring, W., ‘European Banking Law: The Second Banking Directive and Related Directives’, in Cranston, op. cit., note 79, 27; Smits, R., ‘Banking Regulation in a European Perspective’ (1989) 1 Legal Issues of European Integration 61, 71. The latter seems less and less relevant given the centralisation of monetary policy within the European System of Central Banks (ESCB).
See Theil, R., ‘The EC Investment Services Directive: A Critical Time for Investments Firms’ (1994) 2 JIBFL 61.
See Lee, R., What is an Exchange? The Automation, Management and Regulation of Financial Markets (Oxford: Oxford University Press, 1998) 136.
European Commission, Upgrading the Investment Services Directive (COM(2000) 729 final, 15 November 2000). This Communication has to be seen merely as part of a comprehensive strategy to reinforce the legislative framework for securities markets. Accordingly, the wide-ranging review based on this Communication has considered related initiatives such as the Communication on the application of conduct of business rules;
see European Commission, The Application of Conduct of Business Rules under Article 11 of the Investment Services Directive (16 November 2000).
European Commission, Overview of Proposed Adjustments to the Investment Services Directive (24 July 2001). The most notable adjustments provided for: (a) a systematic review of the coverage of ISD so as to better reflect the changing nature of investment intermediation and to allow a broader range of investment services to be organised on a pan-European basis, (b) enhanced convergence of organisational and investor protection requirements with which investment firms must comply, (c) consolidation and amplification of current obligations of investment firms to respect the integrity of the market, (d) elaboration of high-level principles governing the authorisation and operation of ‘regulated markets’, which would allow ‘regulated markets’ to compete for order flow and liquidity without jeopardising the orderly and efficient operation of the European securities market system, or the interests of issuers and investors, (e) clarification of conditions under which market participants and regulated markets may seek access to clearing and settlement infrastructures in other Member States, and (f) modernisation of provisions relating to supervisory cooperation to place mechanisms for communication and cooperation between competent authorities within and between Member States on a firmer, real-time footing.
For more details see Dale, R., Risk and Regulation in Global Securities Market (Chichester: John Wiley & Sons, 1996) 27.
European Commission, A Review of Regulatory Capital Requirements for EU Credit Institutions and Investment Firms: Consultation Document (MARKT/1123/99, 22 November 1999).
European Commission, Second Consultative Document on Review of Regulatory Capital for Credit Institutions and Investment Firms (MARKT/1000/01, 5 February 2001).
See European Commission, Commission Welcomes Significant Progress on New Basel Capital Accord: Press Release (IP/02/1041, 11 July 2002).
European Commission, Financial Services: Building a Framework for Action (COM(98) 625 final, 28 October 1998). The Communication highlighted five imperatives for action: (a) the EU should be endowed with a legislative apparatus capable of responding to new regulatory challenges, (b) any remaining capital market fragmentation should be eliminated to reduce the cost of capital, (c) users and suppliers of financial services should be able to exploit freely the commercial opportunities offered by a single financial market, while benefiting from a high level of consumer protection, (d) closer coordination of supervisory authorities should be encouraged, and (e) an integrated EU infrastructure should be developed to underpin retail and wholesale financial transactions.
European Commission, Implementing the Framework for Financial Services: Action Plan (COM(99) 232 final, 11 May 1999, hereinafter ‘FSAP’). The purpose of the FSAP was to: (a) confirm the objectives that could guide the financial services policy over the following years, (b) assign a relative order of priorities and an indicative timescale for their achievement, and (c) identify a number of mechanisms that may contribute to their realisation.
European Commission, Financial Services: Sixth Report (COM(2002) 267, 3 June 2002).
European Commission, Risk Capital: A Key to Job Creation in the European Union (SEC(1998) 522, April 1998).
European Commission, Single Market Scoreboard No. 4 (16 June 1999).
European Commission, 2002 Review of the Internal Market Strategy (COM(2002) 171 final, 11 April 2002) 5.
European Commission, The State of the Internal Market for Services: Report to the Council and the European Parliament (COM(2002) 441 final, 30 July 2002). The need for action is highlighted by the Stockholm and Barcelona Summits in 2001 and 2002, while the Internal Market, Tourism and Consumer Affaires Council, in reviewing the EU’s priorities for economic reform, concluded that improving the Internal Market in services remained ‘a crucial strategic challenge for the Community’; see 2412th meeting of the Council (1 March 2002).
See Randzio-Plath, C., European legislation for a European Capital Market (Speech delivered at the Sixth European Financial Markets Convention, Brussels, 29 May 2002).
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Avgerinos, Y.V. (2003). The Single European Market in Investment and Financial Services. In: Regulating and Supervising Investment Services in the European Union. Palgrave Macmillan, London. https://doi.org/10.1057/9780230286870_3
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