Papers by Filippo Annunziata
Edward Elgar Publishing eBooks, Nov 2, 2023
Social Science Research Network, Dec 31, 2022
Social Science Research Network, 2019
Investment services and activities, on the one side, and collective investment management, on the... more Investment services and activities, on the one side, and collective investment management, on the other, are two of the main silos in which capital markets legislation is currently articulated. They have different origins and originally stem from different needs: investment funds were first regulated in 1985, by the first UCITS Directive, which was mainly concerned with the creation of a single market for open-ended, retail-oriented investment funds, and basically provided a system of passporting for the UCITS product, coupled with a first system of rules aimed at providing investor protection. Most of the latter were, essentially, rules concerning separation and segregation of assets, and rules on risk diversification and liquidity. Investment services regulation saw the wake, under EU Law, in 1993, and covered a large area of activities, that had been left outside the scope of EU harmonization. Trading venues underwent a first, significant transformation. The focus of investment services has traditionally been on retail-investor protection, coupled with different forms of prudential supervision. Overtime, the framework for investment services regulation in the EU has become more and more articulated, and investment fund rules have been extended to all CIUs falling under the definition of the 2011 AIFM Directive. Several elements, typical of investment services approach (in particular, the one stemming from MiFID I and more recently MiFID II) have then been incorporated into the UCITS and AIFMD Directives, and the MiFID approach is now contaminating several other areas of EU Financial Services regulation. A sort of common, trans-sectorial standard for investor protection is beginning to emerge, and may be the basis for future developments and integration of EU legislation.
Revista de derecho bancario y bursátil, 1994
Social Science Research Network, 2023
Social Science Research Network, 2021
Social Science Research Network, 2021
In the current EU legislative framework for investment funds - UCITS Directive and AIFMD - credit... more In the current EU legislative framework for investment funds - UCITS Directive and AIFMD - credit funds have rightly been singled out as something quite unique. In fact, they stand at the crossroads of capital markets’ and credit institutions’ regulations, playing a role of both an investor in a particular asset class, and of a credit facility provider. They may also effectively perform other functions, such as those of securitization vehicles, or comparable to Asset Management Companies (“AMCs”) for the management and processing of non-performing loans. They are, therefore, hybrid creatures, difficult to regulate and, sometimes, to understand. This is due not only to the absence of any specific product regulation in the context of the AIFMD, but also to the uncertainties surrounding the notion of “credit” and “credit granting” in EU law. Within the EU, legislation on credit funds developed, until now, in a haphazard manner. Absent a clear reference scheme, the result is unsatisfactory, and far from being able to integrate EU Markets in this respect. Further, more robust harmonization is therefore needed in this area, now more than ever in the context of the debate on the effects of the pandemic and the management of NPLs. The paper aims to provide sufficient evidence to support these assumptions, also taking into account the lively debate on the role of Asset Management Companies and the development of an efficient secondary market for loans in the EU.
How did copyright law effectively work and how did it influence the production and circulation of... more How did copyright law effectively work and how did it influence the production and circulation of Italian opera in the first half of the nineteenth century? The question needs to be raised and has far-reaching consequences. The case of Donizetti’s L’elisir d’amore is highly representative of a phenomenon that deserves to be better analysed, and that may allow for a better understanding of the evolution of Italian opera in one of its most prominent periods.
Analisi Giuridica dell'Economia, 2014
RePEc: Research Papers in Economics, 2021
Social Science Research Network, 2020
The duty of an issuer to disclose inside information to the public as soon as possible is set out... more The duty of an issuer to disclose inside information to the public as soon as possible is set out by Article 17 MAR, and notoriously aims at satisfying market transparency, and facilitating the price formation mechanism. This requirement is primarily addressed to satisfy the needs of the public and of the market, in line with the Efficient Capital Markets Hypothesis that underpins the entire construction of MAR. However, the disclosure obligation also has significant internal impacts on the organization of the company, which also need to be adequately framed and understood according to the general provisions of company law contained in the Italian civil code. The interrelationships between MAR and general corporate law provisions seem to entail many consequences as to the matter under discussion. First of all, with regard to the ways in which directors provide adequate safeguards for compliance with disclosure regulations; secondly, with regard to liability profiles; finally, with regard to the flow of information within companies and groups of companies. In fact, the disclosure regime of inside information is relevant both in terms of compliance with MAR and in terms of compliance with the rules that refer to the need for companies to have a proper business organization (as set out, first of all, for all kinds of companies by Article 2086 of the Italian Civil Code, as recently amended). Therefore, the disclosure of inside information also plays an internal role, as complying with those rules has a relevant impact within the company’s structure and organization. This also entails several consequences upon the issuer in terms of liability for breach of the disclosure regime set out by the European Regulation.
Social Science Research Network, 2019
In Act 1, Scene III, of Shakespeare’s Macbeth, the encounter between the protagonist and the witc... more In Act 1, Scene III, of Shakespeare’s Macbeth, the encounter between the protagonist and the witches is marked by a question, that Macbeth addresses to the strange creatures he meets – together with Banquo – in “a heath near Forres”: “Speak, if you can: what are you?”, whereby the witches reply with the three prophecies, triggering the entire development of the Story. A similar issue of identification, and attractiveness-aversion, seems to occur, today, in the area of capital and financial markets regulation, as one stumbles across a wide range of strange, new assets, born out of the depths of the dashing – and mysterious, at least for neophytes - technological developments over these last years. Recently, also regulators and supervisors have been quite active in providing support with regard to the possible classification of crypto-assets. However, the approach taken until today seems to be a bit unsatisfactory, or – rather – doomed to be overcome by the development and gradual dissemination of crypto-trading platforms. Looking at the current ongoing of the debate, the qualification of crypto-assets is focused on the attempt to frame such assets within the standard categories provided for by the overall system of financial regulation, according to what can be defined as a “bottom-up” approach. In this context, areas that are being dealt with are, on the one hand, the regulation of payment services and, on the other, rules on public offerings, prospectus and – obviously – MiFID. We believe, however, that the bottom-up approach should be combined and integrated with a “top-down” approach, by better framing, into the analysis, the status of the trading platforms where crypto-assets are eventually exchanged on the secondary market. In particular, if tokens are traded on platofrms that present the features of trading venues as defined under MiFID, they should be considered as financial instruments, as long as they have derivative components and may, therefore, qualify as commodity derivatives within the scope of MiFID. This applies, in particular, to utility tokens, that would otherwise fall outside the scope of capital markets regulations according the "bottom-up" approach. In addition, also the relative trading platforms would fall into the MiFID regime. However, as truly-decentralised trading systems develop in the future, exchange platforms might fall outside the scope of MiFID rules (since centralisation is a core element of the definition of an MTF or an OTF), and utility tokens would, again, be out of the scope of EU capital markets rules. Secondary markets must therefore be taken into account in the attempt to understand the nature of ICOs tokens, and their relevance for current EU capital markets legislation.
Springer eBooks, 2021
The author discusses the topic of emission allowances in relation to the MiFID II framework. Whil... more The author discusses the topic of emission allowances in relation to the MiFID II framework. While the structure and the mechanisms that underpin the functioning of the EU Emissions Trading System (ETS) system are, by now, well known, discussions on the protection of the environment and the development of secondary markets for emission allowances have stimulated a process of gradual inclusion of CO2 allowances in the perimeter of financial markets regulation. A first, significant step in this direction was taken by MiFID I: building on the definition of commodity derivatives introduced by the Investment Services Directive of 1993, MiFID I enlarged and amplified the catalogue of derivatives that would be considered as falling into its scope. The catalogue included then derivatives on emission allowances. The landscape set by MiFID I was, however, just a first step towards the inclusion of emissions trading in the scope of financial markets legislation. A second step has been taken by MiFID II, as the latter directly classifies rights on emission allowances falling in the EU regime as financial instruments. The author argues that the reasons that led to the qualification of emission allowances as financial instruments in MiFID II are basically a consequence of the tremendous evolution that secondary markets of allowances have seen in the last few years. The growing amount of transactions and the need to preserve and ensure the transparency and integrity of secondary markets convinced the European Commission of the opportunity to include emission allowances in the scope of MiFID II and, therefore, in the scope of the Market Abuse Directive (now Market Abuse Regulation or MAR). Looking at the positive effects for environmental protection that may derive from the inclusion of emission allowances in the scope of capital markets legislation, these are basically linked to the fact that—as a consequence of the approach stemming from MiFID II—secondary markets should effectively become more transparent, efficient and secure. However, according to the author, some potential drawbacks must be considered. Trading in emission allowances has become more expensive after MiFID II, and transaction costs might impact negatively on the liquidity of the market. The application of the Capital Requirements Directive (CRD IV, now CRD V) prudential requirements might also require the absorption of important levels of capital that would be distracted from direct investments in the industry. The effect that this might have on the system is, at the moment, unclear. The landscape introduced by MiFID II is also quite complex: there are at least two, if not three, different sets of comprehensive legislation that may potentially be relevant for trading emission allowances, either on the spot, or on the derivatives market, i.e. the “old” EU ETS; MiFID II and MAR; more tangentially, the Regulation on the wholesale Energy Market Integrity and Transparency (REMIT). The author discusses the implications of each of them and argues that opting in and out of each of these systems, through a complicated system of exemptions and exclusions, does not benefit the overall coherence of the regulatory approach.
Capital Markets Law Journal, Apr 1, 2021
The European Commission published its new Digital Finance Strategy on 24 September 2020. One of t... more The European Commission published its new Digital Finance Strategy on 24 September 2020. One of the centrepieces of the Strategy is the draft Regulation on Markets in Crypto-Assets (MiCA), designed to provide a comprehensive regulatory framework for digital assets in the EU. With MiCA the EU Commission has proposed bespoke regulation for utility tokens and stablecoins including payments tokens, asset-backed tokens and “significant” stablecoins (including “global stablecoins”). As to investment and securities tokens, the EU Digital Finance Strategy relies on the existing body of EU financial and securities law, with the Prospectus Regulation, the MiFID framework as well as the UCITSD and AIFMD at its core, with the intention to incorporate necessary changes as part of the existing ongoing amendment and review processes. MiCA provides for a bespoke prospectus regime for crypto-assets, with the issuing of e-money tokens (i.e. payment tokens), asset-referenced tokens (also known as stablecoins) and crypto-asset services being regulated activities subject to licensing. While supervision of crypto-asset service providers (CASPs) will rest with national authorities, supervision of significant asset-referenced and e-money tokens will rest mainly with the European Banking Authority. The EU Digital Finance Strategy marks a very important step for the EU in developing both innovation and the Single Market. At the same time, while MiCA is an ambitious legislative project, there is room for improvement. First, the scope of MiCA remains uncertain as the draft MiCA does not clearly delineate between utility tokens subject to MiCA and investment tokens subject to EU securities law. Second, a systematic approach to EU law is absent. Thresholds and concepts known from other EU laws should be firmly embedded in MiCA. Third, a framework for supervisory cooperation with regard to truly global stablecoins is missing.
Edward Elgar Publishing eBooks, 2021
Social Science Research Network, 2020
The Weiss affair, which culminated in the BVerfG ruling of 5 May 2020, marks a break-up point in ... more The Weiss affair, which culminated in the BVerfG ruling of 5 May 2020, marks a break-up point in the long-standing dialogue between the BVerfG and the CJEU. The judges in Karlsruhe refused to follow the decision rendered by the CJUE in a preliminary ruling and admonished the German parliament and government to “work towards a proportionality analysis by the ECB” in relation to the so called “Public Sector Purchase Programme”. This paper claims that the arguments employed by the BVerfG in the Weiss judgement are quite similar to those employed in the Gauweiler and Landeskreditbank-Banking Union cases and that the Weiss judgment must therefore by read in conjunction with those precedents. Considering that background, it will be argued that the construction of the principles employed by the BVerfG for the judicial review of the EU acts have not undergone any substantial changes over time. The different outcome in the Weiss judgement rather depends on the fact that, in Weiss, the BVerfG believes that insufficient elements of explanation and justification were provided by the ECB and the CJEU. Therefore, the problem of the Weiss case ends up being a procedural question of statement of reasons. Eventually, it will be pointed out that these judgements show that a common standard for the judicial review of the ECB’s decision exists, although the intensity of the review still varies depending on whether the ECB decision concerns monetary policy or banking supervision and resolution.
Analisi Giuridica dell'Economia, 2018
Social Science Research Network, Apr 21, 2017
The general notion of collective investment undertakings finds today its roots in European Law, w... more The general notion of collective investment undertakings finds today its roots in European Law, which – as it is known – came in time articulated in two bodies running, so to speak, parallel with respect to one another: on the one hand, the original 1985 UCITS Directive and its subsequent amendments and additions; on the other, the more recent Directive 2011/61/EU concerning so-called “alternative funds” (AIFMD Directive). The European system has experienced, in relation to collective asset management regulations, a highly asynchronous trend: if, in fact, the primitive legislation of investments undertakings, dating from 1985, is one of the earliest examples of what later would become the complex fabric of EU securities regulation, Directive 2011/61/EU is, in many respects, an almost belated intervention of a legislator who aims to complete – perhaps a bit too hastily – the European framework, bridging the long delay after the first, significant intervention.
Edward Elgar Publishing eBooks, Oct 1, 2019
Investment services and activities, on the one side, and collective investment management, on the... more Investment services and activities, on the one side, and collective investment management, on the other, are two of the main silos in which capital markets legislation is currently articulated. They have different origins and originally stem from different needs: investment funds were first regulated in 1985, by the first UCITS Directive, which was mainly concerned with the creation of a single market for open-ended, retail-oriented investment funds, and basically provided a system of passporting for the UCITS product, coupled with a first system of rules aimed at providing investor protection. Most of the latter were, essentially, rules concerning separation and segregation of assets, and rules on risk diversification and liquidity. Investment services regulation saw the wake, under EU Law, in 1993, and covered a large area of activities, that had been left outside the scope of EU harmonization. Trading venues underwent a first, significant transformation. The focus of investment services has traditionally been on retail-investor protection, coupled with different forms of prudential supervision. Overtime, the framework for investment services regulation in the EU has become more and more articulated, and investment fund rules have been extended to all CIUs falling under the definition of the 2011 AIFM Directive. Several elements, typical of investment services approach (in particular, the one stemming from MiFID I and more recently MiFID II) have then been incorporated into the UCITS and AIFMD Directives, and the MiFID approach is now contaminating several other areas of EU Financial Services regulation. A sort of common, trans-sectorial standard for investor protection is beginning to emerge, and may be the basis for future developments and integration of EU legislation.
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Papers by Filippo Annunziata