Band 21, Heft 1

1This article is the first to consider the variations in governance requirements applicable to European financial market infrastructures. It charts the tangled combination of laws, codes and regulations that apply to the governance of the largest European central counterparties, central securities depositories, and international central securities depositories. Despite the similarity of these institutions in terms of their sector, criticality, complexity and purpose, there are substantive variations in what is required of their governance. Here we question whether this variance is an appropriate reflection of differing institutional needs or a by-product of piecemeal regulatory reform.Our research found no apparent need to regulate for consistency of board size or structure, nor in relation to specificities of committee requirements. However, there are convincing arguments that change is needed around the meaning and application of independence. The current approach to FMI directorial independence is a poor fit given the sectors highly technical nature, its interconnectedness, and the limited pool of available expertise. On top of this, expertise, diversity, and commitment can become trade-offs for adherence to the requirements of independence. We argue that regulation needs to be sensitively calibrated to ensure these important factors do not get squeezed out under the weight of formalized independence. It is our view that independence requirements can be structured to create better balanced boards where the needs of independence, expertise, diversity, and commitment can be weighed against each other in context.

39While corruption in the public sphere has traditionally been socially and legally reproached, private corruption has not. In the private sphere, the violation by a decision-maker of his or her positional duties in exchange for receiving an extra-positional benefit has not always been seen as conduct that should be prosecuted by law. However, this has changed in recent times and within the field of company law the prohibition of receiving external remuneration has emerged as one of the manifestations of the directors’ duty of loyalty. This paper examines both the basis and the elements of the prohibition and questions how far it should extend. In this sense, although it shares the convenience of enshrining the prohibition in law, it also warns about the dangers of an excessive extension of the prohibition of receiving external remuneration.

67Within the European Member States, it should now be possible to establish a limited liability company fully online. This study compares how the Directive which mandates online formation, has been implemented in the Netherlands, Belgium, and Germany. In particular, it examines whether and, if so, how these countries approach the various cybersecurity risks involved in online formation. The Directive considers these cybersecurity risks, however, the focus is mainly on the requirements regarding the availability of online formation and to a lesser extent the requirements pertaining to the authentication of the founders, as well as the authenticity and integrity of electronic documents. The primary emphasis of the Directive is strongly placed on achieving the objective of facilitating easier, quicker, and more time- and cost-effective company formation. The approach taken by the Netherlands, Belgium, and Germany in implementing the Directive and enabling online formation demonstrates a notable level of similarity. All have made sure to safeguard the traditional role of notaries in company formation in these countries. Despite the Directive’s emphasis on availability, the primary concern for these Member States lies in ensuring the security of online formation. All impose strict requirements regarding cybersecurity and opted for the highest standards regarding authentication (assurance level ‘high’) and authenticity (qualified electronic signatures).

104 Recapitalisation of banks, as well as the whole banking resolution process, was fully public during the 2008 financial crisis. The Single Resolution Mechanism shifted from this approach and created a public-private system, where private individuals and entities can be called in to fund recapitalisation (bail-in). This article argues that recapitalisation (and banking resolution as a whole) should be fully public so it can be rapid, negotiation-free, and in the best interest of the State. The 2008 Irish recapitalisation illustrates well the rewards of having public recapitalisation, while it also tells where improvements are needed to protect recapitalisation process and taxpayers. Currently, the Single Resolution Mechanism has different recapitalisation methods, which creates some complexity and overlaps.