par Louis, Jean Victor
Référence Revue internationale de droit économique, 16, 2-3, page (529-557)
Publication Publié, 2002
Article révisé par les pairs
Résumé : Prudential supervision is dealt with here as a matter of both regulation and control on a global or a regional level of the international activities of the various financial « industries ». While an analysis of the underlying rationale of prudential supervision is not within the ambit of the report, the risks resulting from the structure of international financial marks, both systemic and for the « consumers » are briefly explained as a matter of introducing into a field of law which is characterized by a puzzling array of institutions and arrangements. These are then examined in more detail in two sections, one devoted to the global level of regulation of financial markets, the other to the particular structure of the « Eurosystem ». With respect to the former, the examination starts with a presentations of the complex, multi-organic and largely informal « international financial architecture », before it enters into an evaluation of its merits and limits. In this regard, the problems of legitimacy and representativity of the regulatory mechanisms, of the distribution of authority within the regulatory system and of the legal nature of the mostly non-mandatory, but indirectly binding regulatory rules and the prospects of enhancing their effect, are successively analysed. In addition, future developments of the overall architecture of the system are discussed, in particular the controversy about instituting a « lender of last resort », and the role of the private sector. With respect to the Eurosystem the report outlines, first, its organisational structure as provided for in the EC-Treaty and in the statutes of the ECBS as well as the forms of cooperation characterising the network of European and national authorities. The report then discusses the issues related to establishing a « lender of last resort » or a substitute for it. The subsequent evaluation of the existing system stresses the specific risks resulting from the high degree of concentration of banking markets in Europe, and of reliance on « national champions » before presenting a broad examination of the European controversy on centralisation of prudential supervision, and of the propositions made to enhance the effectiveness of the system. The report concludes on a cautionary tone of suggesting prudent approaches to prudential supervision and of insisting on the necessity to equally care for the democratic accountability of the institutions of the developing Eurosystem.