The Unbearable Lightness of European Security and Markets Authority’s Soft Law: an Italian Perspective

This Chapter aims at assessing the impact of the soft law acts adopted by the European Securities and Markets Authority (ESMA) in the Italian legal order, matching the usual legal analysis with interviews conducted within the Italian public and private sector. The growing Italian case law on these acts is also taken into account, together with the (limited) jurisprudence arising from EU Courts. Piercing the veil over the “only-formally-non-binding” nature of ESMA’s soft law, this study argues that these acts stand out as new sources of law that go far beyond those provided for in the EU treaties, in terms of the actors involved, the procedures for their adoption, and their effects. This seems to leave room for a re-thinking of certain fundamental elements of the EU legal order: the normative system enshrined in Article 288 TFEU; the dichotomy between the direct and the indirect enforcement of EU law; the EU institutional architecture; the principle of direct effect. For this purpose, an agenda for future researches in these fields is finally given.