Reflections on the EU Third Country Regime for Capital Markets in the Shadow of Brexit

This article considers the recent evolution of the EU’s third country regime for capital market access in light of Brexit, the important series of legislative reforms adopted in March 2019 as the 2014-2019 European Parliament/Commission term closed, and the emergence of the European Securities and Markets Authority (ESMA) as a material technocratic influence. The article suggests that while the capital market third country regime is changing (with Brexit a key but not exclusive driver of change), it is not being radically recast, although it is tightening. The regime remains broadly based on the more-or-less liberal ‘deference’ model which has long characterised EU third-country financial services policy. But it is becoming increasingly ‘on-shored’ by means of the direct application of EU rules and by ESMA’s oversight/supervision of certain third country actors. The significantly more restrictive approach being taken to third country central clearing counterparties is a marked development, but here the political and economic context is distinct. The implications of the overall shift towards a more ‘on-shore’, centralised, and potentially restrictive access regime are considered, and a modest reform prescription is offered.