Europe: Article 28 of the Short Selling Regulation should be annulled says Advocate General Jääskinen

Advocate General Jääskinen has delivered his opinion in UK v Council of the European Union and European Parliament (Case C-270/12). The case, which was instigated by the United Kingdom against the Council and European Parliament, concerned an application to annul Article 28 of the Regulation (EU) No 236/2012 (the Short Selling Regulation). Article 28 gives the European Securities and Markets Authority the power to directly intervene in the financial markets of Member States, in exceptional circumstances, to prohibit short selling. It was adopted on the basis of Article 114 of the Treaty on the Functioning of the European Union, which permits the adoption of harmonising measures where necessary for the achievement and functioning of the internal market.

The Advocate General has concluded, in advice that is not binding on the Court of Justice, that Article 28 should be annulled because Article 114 TFEU was not an appropriate legal basis for its adoption. A summary of the Advocate General's opinion is available here (pdf).