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41 Common Market L. Rev. 711 (2004)
European Market Abuse Directive, The

handle is hein.kluwer/cmlr0041 and id is 725 raw text is: Common Market Law Review 41: 711-741, 2004. © 2004 Kluwer Law International. Printed in the Netherlands. THE EUROPEAN MARKET ABUSE DIRECTIVE GUIDO A. FERRARINI* 1. Introduction In this paper I examine the Directive 2003/6/EC of the European Parliament and of the Council on Insider Dealing and Market Manipulation (Market Abuse), which was adopted on 3 December 20021 and replaced Directive 89/ 592/EEC co-ordinating regulations on insider dealing.2 The new Directive (hereafter the Market Abuse Directive or simply the Directive) has a wider scope than the previous one (hereafter the Insider Dealing Directive or simply the IDD) as it also forbids market manipulation.3 Furthermore, it includes new rules on insider dealing in an effort to strengthen regulatory enforcement in this area. In fact, the IDD, despite introducing an extensive definition of insider dealing, proved to be rather weak in enforcing the prohi- bition at the EC level.4 In addition, the treatment of market manipulation is still divergent in the Member States, some of which have no legislation ad- dressing the issues of price manipulation and the dissemination of mislead- ing information (see the Directive's 11 th Considerandum).5 The need for a new directive covering both insider dealing and market ma- nipulation was stressed by the Commission's Financial Services Action Plan6 and by the Lamfalussy Report on the Regulation of European Securities Markets.7 This Report, in particular, proposed the introduction of new legis- * Professor of Law, University of Genoa; Visiting Professor, Columbia Law School (Au- tumn 2003); Vice-Chairman, European Corporate Governance Institute, Brussels. A first draft of this paper was presented at a conference held at Waseda University, Tokyo, on the 10-11 March 2003. 1. O.J. 2003, L 96/16. 2. O.J. 1989, L 334/30. 3. On the IDD, see Hopt, The European Insider Dealing Directive, 27 CML Rev. (1990), 51. 4. See FESCO, Market Abuse, 29th June 2000, p. 3. 5. On the formation and rationale of the Market Abuse Directive, see Moloney, EC Securi- ties Regulation (Oxford, 2002), p. 775 et seq. 6. See the Communication of the Commission, Financial Services: Implementing the framework for financial markets: action plan, COM(1999)232, 11 May 1999, p. 19 et seq. 7. See the Final Report of the Committee of Wise Men on the Regulation of European Securities Markets, Brussels, 15 Feb. 2001, p. 12 et seq. Copyright © 2007 by Kluwer Law International. All rights reserved. No claim asserted to original government works.

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