Defining "securities" in the European Capital Markets Code

This chapter examines the state of legislation concerning the definition of ‘securities’ in the capital markets law of the European Union and explores perspectives of codifying a uniform definition of ‘securities’ in the European Capital Markets Code. It presents general characteristics, genealogy, and taxonomy of concepts and definitions of ‘securities’ in the European capital markets laws. An in-depth analysis of ‘transferable securities’ definitions in the Markets in the Financial Instruments Directive II is accompanied by an assessment of several context-specific definitions from other EU capital markets law acts, eg Prospectus Regulation, Transparency Directive, and Market Abuse Directive. The study tests the feasibility of rethinking the definition of ‘securities’ in the EU capital markets law by providing a comparative view from the US securities regulation, contrasting perspectives from the Member States’ laws and a description of the EU initiatives to harmonize the substantive securities laws. Inquiring whether and how ‘securities’ could be defined in the European Capital Markets Code involves an evaluation whether there could be a monistic definition of a polymorphic instrument functioning in the multi-centric regulation, or whether the ‘unity of multiplicities’ should prevail as the feasible model in European securities law. In this context, the study explores three regulatory options of varying intensity and invasiveness which would lead to different outcomes.