Unificazione, differenziazione e tecnificazione nella regolazione europea dei mercati finanziari

The European Union reacted to the (several) crisis – financial, of the public debt, economic, and in some ways existential – with a centralization of many relevant functions (the budget area and banking supervision are two such examples). Compared to this trend, the first reform, dating back to 2011 – the establishment of the European System of Financial Supervision and of the European Supervisory Authorities – is a ‘weak model’ of enhanced cooperation. However, European financial regulation does not follow one single model of division of competences between the European authorities and national ones: in the area of credit rating agencies (CRAs) and for some aspects of derivatives (such as trade repositories (TRs)), supervisory competences have been given to the Esma. Hence, a remarkable centralization has taken place. Is this delegation of powers legitimate? The paper examines the current normative framework and the first years of activity of the Esma, in particular through the analysis of its practices in the area of CRAs. The paper concludes that recent decisions of the ESMA do not follow the criteria set forth by the Court of Justice in the short selling case in order for delegation of powers to technical authorities to be legitimate and calls for a broader implementation of procedural rights and duty to give reasons by the most powerful EU financial authority.