Civil Liability of Rating Agencies – An Insipid Sprout from Brussels

In my article ‘Civil Liability of Rating Agencies – An Insipid Sprout from Brussels’, published in the Capital Markets Law Journal (2016) 11 (1): 60-83, available as a working paper here, I analyse the need and justification for the civil liability of rating agencies in EU law from different angles, including law and economics and constitutional law. The article compares features of the new EU cause of action to those existing in the U.S. and Australia, criticising the fact that the European regime leaves it open to Member States to define essential terms of rating agency liability and, thereby, fails to secure a uniform regime. I go on to argue that the problems of the new rule are further compounded by difficulties in determining the applicable national law that fills out its gaps. Finally, I highlight the uncertainty of the scope of the liability, in particular whether it also covers U.S. rating agencies or only their European subsidiaries. I conclude that the new regime is merely a cover-up to mask continuing differences between EU Member States concerning the appropriateness of civil liability of rating agencies.

Matthias Lehmann is an academic visitor at the Faculty of Law, University of Oxford.