Zentralisierung der Aufsicht, neues Börsenrecht und verschärfte Haftung im deutschen Kapitalmarktrecht
Abstract
The combined forces of international competition, European harmonization, and technological progress exert considerable pressure on the German legal system. The author examines recent German law reforms in the fields of financial supervision, the regulation of stock exchanges, and liability for false information given to capital market participants. With regard to financial supervision, Germany follows the dominant international model of creating a single regulator. Yet the German version of integrated financial supervision shows characteristic features which can mostly be traced back to the German political system, i.e., the concept of a so-called “cooperative federalism”. Especially in the field of stock exchange supervision, important competences such as the supervision of alternative trading systems as well as the persecution of criminal offences (e.g., insider trading)remain in the hands of the German Länder. Therefore, it seems increasingly likely that Germany may skip the stage of a full-blown nationally integrated supervision of capital markets in favour of a European supervisory authority. Accordingly, the author gives a survey of the current state of the discussion about the creation of a European SEC, an idea for which the time has come because of the competition of legal orders made possible by Centros and its progeny. As far as the organisation of stock exchanges is concerned, Germany clings to the unique model of a private-public partnership which has repeatedly been the subject of heated controversies, but which seems to be firmly enshrined for the foreseeable future. Finally, the author gives a survey of recent reforms concerning prospectus liability, market manipulation, and publicity. Although all of these areas are increasingly “Europeanized”, the national legislators still have considerable scope as to which should be used to adapt the internal law to the expectations of a global capital market.
