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The Future of the Capital Markets Union After Brexit

Danny Busch

The European Commission wishes to create fully integrated European capital markets. The Capital Markets Union (CMU) is intended to make it easier for providers and receivers of funds to come into contact with one another within Europe, especially across borders. This is regardless of whether it is arranged through the intermediary of a bank, through the capital markets or through alternative channels such as crowdfunding. In addition, more non-bank funding will help to lessen dependence on the traditional banking industry and enhance the ability to cope with economic shocks. But will the measures announced in the CMU Action Plan be sufficient to achieve an integrated European capital market? And is the CMU Action Plan still realistic if London, Europe’s financial heart, no longer participates? Moreover, what impact will the Trump administration and the victory of Emmanuel Macron have on the CMU project? This article takes a critical look at the main aspects of the CMU Action Plan. 

Sommario:

1. Introduction - 2. CMU objectives - 3. EBU–CMU relationship - 4. Regulatory burden - 5. Better Regulation and Call for Evidence - 6. Towards supervisory convergence in Europe - 7. Sustainable finance - 8. Prospectus - 9. Better access of SMEs through capital markets - 10. Investment funds - 11. Securitisations - 12. FinTech and Crowdfunding - 13. Clearing and settlement of securities transactions - 14. Macro-prudential policy framework - 15. Concluding remarks - NOTE


1. Introduction

Capital Markets Union Action Plan When the European Commission under President Juncker published the original Capital Markets Union (CMU) Action Plan, the tone was still self-assured: 'The Commission's top priority is to strengthen Europe's economy and stimulate investment to create jobs. The EUR 315 billion investment plan, up and running less than a year after the Commission took office, will help to kick-start that process. To strengthen investment for the long term, we need stronger capital markets. These would provide new sources of funding for business, help increase options for savers and make the economy more resilient. That is why President Juncker set out as one of his key priorities, the need to build a true single market for capital - a Capital Markets Union for all 28 Member States.'[1] Brexit After the United Kingdom signalled its intention to leave the European Union in the Brexit referendum of 23 June 2018, little of this self-assurance remained. The news came as a bombshell worldwide. The referendum result was particularly sobering for the European Commission. British Commissioner for Financial Services Jonathan Hill[2], who had been the driving force behind the CMU, immediately tendered his resignation and was succeeded by Valdis Dombrovskis from Lithuania. In the light of this development the obvious question is whether the CMU Action Plan is still realistic if London, Europe's financial heart, no longer participates. The Commission clearly considers that it is. This was already apparent from its communication of 14 September 2016 entitled 'Capital Markets Union - Accelerating Reform'.[3] Trump More bad news resulted from the US presidential election. Donald Trump has become the 45th President of the United States. For the time being, anti-European and anti-globalist sentiment have triumphed in the UK and the US. Brexit and Trump's 'America First' administration are bad news for European integration and for the plans for a European Capital Markets Union. For the time being, President Putin is the laughing third party in geopolitical terms. Italy The wave of populism and anti-Europe has also reached the European Continent. The most recent example is Italy, where the anti-European populists won the parliamentary elections of 4 March 2018. After confusing and lengthy negotiations, the League (led by Matteo Salvini) and the Five Star Movement (led by Luigi Di Maio) formed a populist and Eurosceptical coalition, with [continua ..]

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2. CMU objectives

CMU must make it easier for providers and receivers of funds to come into contact with one another within Europe, especially across borders. This is regardless of whether it is arranged through the intermediary of a bank, through the capital markets or through alternative channels such as crowdfunding. In addition, more non-bank funding will help to lessen dependence on the traditional banking industry and enhance the ability to cope with economic shocks. [4] This overarching objective is broken down by the Commission into seven more specific objectives:      (i) financing for innovation, start-ups and non-listed companies;      (ii) making it easier for companies to enter and raise capital on public markets;      (iii) investing for longer-term, infrastructure and sustainable investment;      (iv) fostering retail investment;      (v) strengthening banking capacity to support the wider economy;      (vi) facilitating cross-border investment;      (vii) strengthening the capacity of EU capital markets.[5]

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3. EBU–CMU relationship

Another European project - the European Banking Union (EBU) - was clearly born under a more favourable constellation. Although the EBU is not yet complete, managing to establish a Single Supervisory Mechanism (SSM) and a Single Resolution Mechanism (SRM) within the eurozone in such a short space of time is a tremendous achievement. The SSM has been operational since 4 November 2014 and provides for the European Central Bank (ECB) in Frankfurt to carry out prudential supervision directly over the main banks within the eurozone. Moreover, since 1 January 2016 the Single Resolution Board (SRB) in Brussels has been in charge of the orderly resolution of failing banks in the eurozone.[6] How do these two European mega projects relate to one another? And, above all, what are the differences? First, the CMU focuses not on the financial services industry but on the European economy as a whole. Second, financial stability is not the primary driver (unlike in the case of the EBU), but is simply a precondition for the development of the CMU.[7] Third, institutional issues do not form the essence of the CMU, although institutional reforms may be necessary in order to achieve its objectives.[8] Fourth, the geographical scope of the CMU is not confined to the eurozone but extends to the EU as a whole. Although Brexit means that the difference will be smaller, it will still exist. Fifth, the CMU is not triggered by crisis management challenges, but is part of a broader long-term agenda for structural change in Europe. This was markedly different in the case of the EBU. The main motive for establishing the EBU was the eurozone crisis. But sixth, the banks play an essential role in the capital markets, even in systems such as the US where the capital markets are more highly developed. The correct initiatives for banks and capital markets can in this way be mutually reinforcing.[9]

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4. Regulatory burden

But what are the 'correct initiatives'? In short, how does the Commission envisage achieving the CMU? The CMU cannot in any event be achieved by a single measure. Examination of the CMU Action Plan quickly reveals that the Commission believes the solution lies mainly in adjusting the legislation. In the following sections I will briefly review the Commission's main CMU initiatives. Before doing so, however, I should first like to make some general observations about the regulation of the financial services industry. To start with, properly regulating the financial services industry is no easy matter. Regulation should be neither unduly strict nor unduly lenient. Nor should it be unduly vague (since this is at the expense of legal certainty) or excessively detailed (since this is at the expense of flexibility). Nonetheless, the regulatory (compliance) burden is starting to become a problem for the financial services industry. In response to the financial crisis, the Commission quickly erected a complex regulatory structure comprising as many as forty new directives and regulations. And this structure is not yet complete. A notorious example is the Capital Requirements Regulation (CRR), which takes up no fewer than 337 closely printed pages.[10] And this is just one regulation. Moreover, the rules sometimes contain mutually contradictory or overlapping provisions or even gaps. The complex interaction of all these new rules can also have undesirable economic consequences. And, for the people who have to cope with this flood of legislation, are the rules still readily identifiable and comprehensible?  This applies not only to staff of the financial services industry itself but also to the financial supervisors who have to monitor compliance with the rules. Hardly surprisingly, therefore, the supervisory authorities have seen a huge increase in their staff complement in recent years and hence also in the costs of supervision.

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5. Better Regulation and Call for Evidence

Fortunately, the Commission has recently become more aware of the problem of the regulatory burden. This is apparent from the Better Regulation Programme, which aims to cut down on the number of new rules and evaluate existing rules more critically.[11] In April 2016 the Commission concluded an Interinstitutional Agreement on Better Law-Making[12] with the Council and the European Parliament. 'The Commission sees this agreement as a joint commitment to focus on the big and urgent things, whilst striving for simple, evidence-based, predictable and proportionate laws which deliver maximum benefits for citizens and businesses.'[13] It is also to be welcomed that on 30 September 2015, in its call for evidence in the context of the CMU, the Commission asked the market what rules are inconsistent and give rise to undesirable economic consequences.[14] Out of the feedback received, one of the key points of criticism is that strict regulation is limiting the quantity of bank financing available in the economy. But other responses emphasise that the higher capital requirements (CRD IV and CRR[15]) are actually having a positive impact on investor confidence and will in due course benefit the economy. According to these respondents, the volume of lending has declined because demand for loans has fallen.[16] The Commission concludes that the strict capital requirements are necessary to ensure financial stability, but that the requirements can be relaxed in some areas. These changes have been taken into account in the current review of the European banking rules (so-called 'CCR2 package'). The Commission published the CCR2 package and its response to the call on 23 November 2016.[17] Another key point of criticism is that the legislation is not always proportionate, for example for small banks.[18] Here too, the respondents' concerns have struck a chord with the Commission. For example, the CRR2 package also provides for a less onerous disclosure regime and simpler remuneration rules for small, non-complex banks.[19] There are also complaints about excessive compliance costs, especially for smaller institutions. These costs are due to the complexity and sheer number of rules and duplication of reporting requirements in various regulatory schemes. In addition, the quantity of information requested is not always proportionate to the targeted risk.[20] The Commission is also sympathetic to this oft-heard complaint. For example, the CCR2 [continua ..]

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6. Towards supervisory convergence in Europe

Having a harmonised set of rules is a necessary precondition for achieving an integrated European capital market, but is not sufficient in itself. To achieve actual integration, supervisory convergence within Europe is of the utmost importance.[22] Currently, ESMA only has direct supervisory powers with respect to credit rating agencies (CRAs) and trade repositories (TRs), as well as some product intervention powers (e.g. MiFID II).[23] CCPs, data reporting services providers, funds, benchmarks However, in its proposals of 13 June and 20 September 2017, the Commission proposes to grant ESMA additional direct supervisory powers with respect to: (i) Central Counterparties (CCPs), (ii) data reporting services providers; (iii) approval of certain prospectuses; (iv) certain harmonised collective investment funds (EuVECA, EuSEF and ELTIF); and (v) benchmarks.[24] PEPP providers In addition, in its proposal of 29 June 2017, the Commission proposes to introduce a pan-European Personal Pension Product (PEPP). PEPP providers will be supervised by the NCAs, but a PEPP may only be manufactured and distributed in the Union where it has been authorised by EIOPA.[25] Crowdfunding Service Providers See, finally, the 8 March 2018 Commission Proposal for a Regulation on European Crowdfunding Service Providers (ECSP) for Business. To complement the new regulation on crowdfunding, the Commission has also adopted a proposal for a directive amending MiFID II.[26] The proposal seeks to establish uniform rules on crowdfunding at EU level. It does not replace national rules on crowdfunding where they exist. A crowdfunding service provider can choose to (i) either provide or continue providing services on a domestic basis under applicable national law (including where a Member State chooses to apply MiFID II to crowdfunding activities); or (ii) seek authorisation to provide crowdfunding services under the proposed regulation. In the latter case, (i) authorisation allows crowdfunding service providers to provide crowdfunding services under a passport across all Member States; (ii) a legal person that intends to provide crowdfunding services shall apply to ESMA for authorisation as a crowdfunding service provider (Art. 10); and (iii) crowdfunding service providers shall provide their services under the supervision of ESMA (Art. 12). Please note that the regulation does not apply to crowdfunding services that are provided by project owners that that are [continua ..]

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7. Sustainable finance

The Commission points out that we are increasingly faced with the catastrophic and unpredictable consequences of climate change and resource depletion. Current levels of investment are not sufficient to support an environmentally-sustainable economic system that fights climate change and resource depletion. According to the calculations of the Commission, more private capital flows need to be oriented towards sustainable investments to close the €180-billion gap of additional investments needed to meet the EU's 2030 targets of the Paris Agreement.The Commission concludes that the financial system has a key role to play here.[28] EU High-Level Expert Group on Sustainable Finance At the end of 2016, the Commission appointed a High-Level Expert Group on Sustainable Finance. On 31 January 2018, the expert group published its final report, offering a comprehensive vision on how to build a sustainable finance strategy for the EU. The Report argues that sustainable finance is about two urgent imperatives: (1) improving the contribution of finance to sustainable and inclusive growth by funding society's long-term needs; (2) strengthening financial stability by incorporating environmental, social and governance (ESG) factors into investment decision-making. The Report proposes eight key recommendations, several cross-cutting recommendations and actions targeted at specific sectors of the financial system.[29] Commission Action Plan on Sustainable Finance On 8 March 2018 the Commission launched its Action Plan on Sustainable Finance. The Action Plan builds upon the group's recommendations to set out an EU strategy for sustainable finance. This Action Plan on sustainable finance is part of broader efforts to connect finance with the specific needs of the European and global economy for the benefit of the planet and our society. Specifically, this Action Plan aims to: (i) reorient capital flows towards sustainable investment in order to achieve sustainable and inclusive growth; (ii) manage financial risks stemming from climate change, resource depletion, environmental degradation and social issues; and (iii) foster transparency and long-termism in financial and economic activity. In the Action Plan these aims are translated into 10 concrete actions: (1) establishing an EU classification system for sustainable activities; (2) creating standards and labels for green financial products; (3) fostering investment in sustainable projects; (4) incorporating [continua ..]

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8. Prospectus

The prospectus forms an essential part of the CMU. It provides companies with access to the European capital markets. As part of the CMU, the Commission proposed to replace the Prospectus Directive by a Prospectus Regulation. The proposal has already been adopted. The new rules will be binding per July 2019.[35] The Prospectus Regulation has three main aims: (i) to reduce the administrative burden of drawing up of a prospectus for all issuers, in particular for SMEs, frequent issuers of securities and secondary issuances; (ii) to make the prospectus a more relevant disclosure tool for potential investors, especially in SMEs; and (iii) to achieve more convergence between the EU prospectus and other EU disclosure rules (such as the Transparency Directive and PRIIPs[36]). To achieve objective (i), the Prospectus Regulation provides for an optional 'light regime' geared to the needs of the SMEs and their investors so that they can draw up a relatively concise and therefore cheaper prospectus. This option in fact exists only if the SME does not have a stock exchange listing. This light regime is intended for a listing on a so-called SME growth market (this is not a regulated market but a multilateral trading facility or MTF) (Art. 15).[37] Companies which already have a listing on a regulated market or an SME growth market and wish to issue additional shares or bonds will in due course be able to issue a new, simplified prospectus (Art. 7 and 14). This should give more flexibility and less paperwork for repeat players. At present, 70% of the approved prospectuses are follow-up issues by companies that already have a listing. To achieve objective (ii), it is desired to make the prospectus more concise and a better source of information. At present, even the summary is often very long and couched in complicated legalese not readily intelligible to most investors. The prospectus published on the occasion of ABN AMRO's initial public offering on 10 November 2015 consisted of no fewer than 729 closely printed pages.[38] This creates additional costs for issuing institutions, without providing clear benefits for investors. The Commission now wishes to ensure that prospectuses are shorter and more accessible by indicating what information is necessary. The prospectus summary should be modelled as much as possible after the consumer-tested key information document (KID) required under the PRIIPs Regulation. This can then also help to achieve objective [continua ..]

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9. Better access of SMEs through capital markets

On 24 May 2018 the Commission tabled proposals to amend the Markets Abuse Regulation (MAR), MiFID II and the newly adopted Prospectus Regulation. Facilitating SMEs' access to finance at each stage of their development is central to the Commission's CMU project. Much has already been achieved in facilitating SME's access to finance, notably simplified prospectus rules. Requirements for SME growth markets which enable smaller companies to get equity capital and debt finance (bonds) also entered into force in January 2018 (MiFID II).[41] But, as the Commission points out, more still needs to be done: the number of SME initial public offerings today has halved compared to 2006-2007. Companies listed on an SME Growth Market are required to comply with several EU rules, such as the MAR, the Prospectus Regulation or MiFID II. However, in many respects, EU laws do not differentiate between larger and smaller companies.  For example, MAR applies to all share issuers irrespective of size. With the 24 May 2018 proposals, the Commission wants to establish a more proportionate regulatory environment to support SME listing while safeguarding investor protection and market integrity.[42] The main proposed changes to SME listings rules are as follows. First, adaptation of the current obligations to keep registers of persons that have access to price-sensitive information so as to avoid excessive administrative burden for SMEs, while ensuring that competent authorities can still investigate cases of insider dealing. Second, allowing issuers with at least three years of listing on SME Growth Markets to produce a lighter prospectus when transferring to a regulated market. The proposal goes even further than the already overhauled and simplified prospectus rules in terms of making it easier for firms to tap Europe's capital markets. Third, making it easier for trading venues specialised in bond issuance to register as SME Growth Markets. This will be done by setting a new definition of debt-only issuers. Those would be companies that issue less than EUR 50 million of bonds over a 12-months period. Fourth, create a common set of rules on liquidity contracts for SME Growth Markets in all Member States, in parallel to national rules. This refers to agreements between issuers and financial intermediaries (a bank or an investment firm) for buying and selling shares of and on behalf of the issuer. By so doing, the financial intermediary enhances the liquidity of the [continua ..]

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10. Investment funds

Investment funds play an important intermediate role in matching supply with demand for capital.[43] The CMU Action Plan therefore contains a good number of initiatives relating to investment funds. Venture capital First of all, there are various initiatives intended to strengthen the venture capital market.[44] On 1 March 2018, new rules on venture capital investment (EuVECA) and social entrepreneurship funds (EuSEF) entered into application, making it easier for fund managers of all sizes to run these funds and allowing a greater range of companies to benefit from their investments. The new rules will also make the cross-border marketing of EuVECA and EuSEF funds less costly and will simplify registration processes.[45] In addition, in November 2017, the Commission published a 'Call for expression of interest' to assess whether asset managers are prepared to manage venture capital funds-of-funds with EU support in order to induce large institutional investors to invest in this investment category and thus boost the European venture capital industry. It received 17 applications by the 31 January 2017 deadline. As a first step, the Commission assessed all investment proposals and conducted the pre-selection based on their policy fit with the programme. Soon after, the European Investment Fund (EIF) conducted its standard due diligence process of the pre-selected candidates, six of which were selected for funding and invited to enter into negotiations with the EIF late in 2017. The first two signatures took place on 10 April 2018 in Brussels between IsomerCapital and EIF, and Axon Partners Group and the EIF. The remaining four - Aberdeen Standard Investments, LGT, Lombard Odier Asset Management and Schroder Adveq - are expected to be finalised in the course of 2018.[46] The Commission services have reviewed national tax incentives for venture capital and business angels. Building on this and on the initiatives envisaged under the 2016 Start-up and Scale-up Initiative, a study setting out good practices has been published on 8 June 2017.[47] It will support Member States' policy design and implementation, including through the European semester, to improve the effectiveness of such tax incentives and foster the development of local capital markets. Cross-border distribution In addition, there are concerns about the regulatory and administrative barriers to cross-border distribution of investment funds. On 2 July 2016 the Commission [continua ..]

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11. Securitisations

The underlying theory is simple. If the European market for securitisations is revived, this would free up capacity on banks' balance sheets by removing lending portfolios and transforming them into bonds through off-balance-sheet special purpose vehicles. In this way, scope could be provided for new loans and a strong boost given to both bank lending and capital market funding. But securitisations were in fact one of the root causes of the financial crisis, partly because loans were granted in the US to households that were totally incapable of keeping up the repayments on them (NINJA loans).[54] The credit rating agencies turned a blind eye because they were paid for their services by the bank originators of the securitisations.[55] Now the rules have been tightened up. This also applies to the rules for the rating agencies (Credit Ratings Regulation).[56] In practice, the trick will be to revive the European securitisations market in such a way as to minimise the chances of things going badly wrong. The Commission has taken three initiatives for this purpose: (i) a proposal for Simple, Transparent and Standardised (STS) securitisations (STS Regulation)[57]; (ii) reduction of the capital requirements for banks that invest in STS securitisation products[58]; and (3) as soon as political agreement has been reached on the STS Regulation, the Commission wishes to propose a reduction in the capital requirements for insurers that invest in STS securitisations.[59] The first two initiatives have been adopted in December 2017.[60]It will be necessary to wait and see whether these measures will be sufficient to revive the European securitisations market safely, particularly in view of the paralysing effect of Brexit and the efforts of the Trump administration to deregulate the financial sector.

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12. FinTech and Crowdfunding

On 8 March 2018 the Commission published its FinTech Action Plan. The aim is ambitious. It envisages to enable the financial sector to make use of the rapid advances in new technologies, such as blockchain, artificial intelligence and cloud services. At the same time, it seeks to make markets safer and easier to access for new players. This will benefit consumers, investors, banks and new market players alike, says the Commission.[61] However, it is no easy task to strike the right balance between easier market access for new players on the one hand, and investor protection and financial stability on the other. Be that as it may, as a first major deliverable, the Commission proposed new rules that should help crowdfunding platforms to grow across the EU's single market.[62]

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13. Clearing and settlement of securities transactions

The Commission notes that recent EU legislation has removed important barriers to the cross-border clearing and settlement of securities. Particular examples are EMIR and CSDR.[63] Giovannini barriers Despite the progress that has been made, much remains to be done. Over ten years ago the main barriers were identified by the working group under the direction of Alberto Giovannini.[64] Many barriers have their origins in divergent national property and insolvency laws, as well as national laws regarding securities holdings. These differences can give rise to uncertainty in international relations, for example regarding the enforceability of collateral, and can threaten the resilience of cross-border settlement and collateral flows.[65] Conflict of laws rules for third party effects of transactions in securities and claims Against this backdrop, in April 2017 the Commission launched a public consultation ( [66] The group assisted the Commission by providing specialist advice from experts on private international law and financial markets as a sound basis for policymaking. In March 2018 the Commission proposed the adoption of  [67] The proposal complements the  Rome I Regulation. It provides that, as a rule, the law of the country where the assignor has its habitual residence will govern the third-party effects of the assignment of claims. By introducing legal certainty, the new measures seek to contribute to promote cross-border investment, enhance access to credit and contribute to market integration. The Commission's proposal is accompanied by a  [68] In this area, different EU directives (the  settlement finality, the  winding-up and the  financial collateral directives) lay out specific provisions on which national law is applicable to the proprietary effects of cross-border transactions in securities. While broadly similar, these provisions sometimes differ when it comes to details. The communication seeks to clarify the Commission's views on these specific provisions. Derivatives clearing, CCPs & Brexit EMIR is a centrepiece of the legislation introduced in the wake of the financial crisis to make financial markets safer and more transparent. A key pillar of EMIR is the requirement for standardised OTC derivatives contracts to be cleared through a Central Counterparty (CCP).[69] A CCP is a market infrastructure that [continua ..]

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14. Macro-prudential policy framework

This brings us neatly to the theme of financial stability. As noted previously, financial stability is not the primary driver, unlike in the case of the EBU. It is merely a precondition for the development of the CMU,[78] albeit an important one. The Commission rightly requests that this receive explicit attention.[79] Further to this request, the Commission published its consultation document on the EU macro-prudential framework on 1 August 2016. The consultation is about much more than financial stability in the context of the CMU, but is also intended in any event to determine the impact of more market-based finance on financial stability, to take action to enhance the monitoring of such risks and to examine whether the macro-prudential toolkit should be expanded. By promoting more diverse funding channels, the CMU will help to increase the resilience of the EU financial system. At the same time, there is a need to be alert to and enhance the monitoring of financial stability risks that may be linked to the growth of market-based financial flows.[80] In September 2017, following its consultation in 2016, the Commission proposed amendments to the ESRB Regulation to ensure that the European Systemic Risk Board (ESRB) has the capacity to monitor potential risks to financial stability arising from market-based finance.[81]

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15. Concluding remarks

It is clear from what has been said above that there is no lack of well-intentioned initiatives. But is the CMU Action Plan sufficient to achieve an integrated European capital market? Numerous other measures are in any event conceivable.[82] And is the CMU Action Plan still realistic if London - Europe's financial heart - no longer takes part? And how will the Trump administration affect the CMU project? These are questions which cannot be answered with any certainty at present. The future is a black box. This has naturally always been the case, but Brexit and Trump are now forcing us to face facts. We are on the threshold of a period of great uncertainty. The European Union is facing some major tests. The time has come for a radical modernisation of the EU, including the governance of the European institutions and the European supervisory authorities such as ESMA. But this will require the European leaders to work together effectively. Let's hope for the best. * Prof. Dr. Danny Busch, M.Jur. (Oxon.) is Chair of Financial Law and Director of the Institute for Financial Law (IFL), University of Nijmegen, the Netherlands. He is also Visiting Professor at Università Cattolica del Sacro Cuore di Milano, Università degli studi di Genova, and Université de Nice Côte d'Azur, Member of the Dutch Banking Disciplinary Committee (Tuchtcommissie Banken), and Member of the Appeal Committee of the Dutch Complaint Institute Financial Services (Klachteninstituut Financiële Dienstverlening, KiFiD). E-mail: d.busch@jur.ru.nl. This paper was completed on 18 July 2018. No account could be taken of developments since that date. It is based in part on the author's article A Capital Markets Union for a Divided Europe, Journal of Financial Regulation (2017), 262-279. The ideas and analysis contained in this paper will be further expanded in a more comprehensive work forthcoming in FEDERICO FABBRINI & MARCO VENTORUZZO (eds), Research Handbook of EU Economic Law, Edward Elgar Publisher 2019.

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NOTE

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