United in diversity: maximum versus minimum harmonization in EU securities regulation

This article uses the recent drive in the UK to abolish gold-plating as a starting point to analyse whether EU legislation on prospectus disclosure, transparency requirements, and market abuse provides for maximum harmonisation or allows Member States to adopt super-equivalent implementing measure. In addition, the article develops a number of general criteria to identify situations where maximum harmonisation may be beneficial, and cases where the setting of minimum standards, or merely the removal of obstacles to cross-border mobility, is advantageous. The article argues that prospectus disclosure entails largely maximum harmonisation. The character of the Transparency and Market Abuse Directives, on the other hand, is ambivalent. Recent case law calls into question the permissibility of the super-equivalent implementation of the Market Abuse Directive by UK law. As far as the benefits of harmonisation are concerned, the article distinguishes between disclosure obligations and liability provisions. It is submitted that harmonisation is beneficial with respect to the latter, but should be scrutinized carefully in case of the former.