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Short selling regulation upheld

22/01/14

The Court of Justice of the EU has dismissed the UK’s challenge to a provision of the Short Selling Regulation (Regulation 236/2012). The Court held that the Regulation did not confer an unlawfully wide discretion on an EU agency, the European Securities and Markets Authority (ESMA). In order to reach this conclusion, the Court had to stress the respects in which ESMA’s power to prohibit short selling is narrowly circumscribed. The Court also held (differing from the Advocate General’s Opinion) that the provision is properly characterised as an internal market measure, within the scope of Article 114 of the Treaty.

The judgment is here.

Jemima Stratford QC and Andrew Henshaw QC appeared for the United Kingdom.