Kapitalbuffertkraven ur ett konstitutionellt perspektiv

Detta är en Uppsats för yrkesexamina på avancerad nivå från Stockholms universitet/Juridiska institutionen

Sammanfattning: Following the global financial crisis in 2007-2009, there has been a rapid regulatory development of the international financial market. Arguably, the magnitude of the costs resulting from this crisis was caused by the fact that banks and other financial institutions, due to inadequate regulation, did not have sufficient capital to handle the unpredicted disturbances in the financial market. Hence, a number of new international standards have been introduced to enhance the stability of both the financial system as a whole and individual financial market players. One of the most important new standards concerns additional capital buffers for financial institutions. The capital buffer requirements, which originally were adopted through international agreements, have now been introduced in Sweden due to EU-law. The purpose of this thesis is to examine the constitutional legality of capital buffer requirements in relation to the Swedish distribution of normative competence. As a separate and independent part of this legality test, the thesis also answers the question of whether decisions regarding the capital buffer requirements are categorized as norm decisions or administrative decisions. In order to be able to examine the constitutional legality of the capital buffers, the regulation that governs the capital buffer requirements must be thoroughly examined. Therefore, the thesis also explores the detailed and technically complex regulations that regulate the capital buffer requirements. Within the framework of this investigation the origin of the buffers, the Swedish implementation process and the application of the buffer requirements by the Swedish Financial Supervisory Authority is examined. The examination of the capital buffer requirement's compatibility with the Swedish distribution of normative competence shows that the use of delegation to implement the buffer requirements into Swedish regulation is legal. However, it is questionable if the legal technique used is appropriate. The categorization of decisions regarding the capital buffer requirements shows that all the capital buffer requirements cannot be attributed to one single category. This lack of coherence makes the Swedish implementation of the capital buffers questionable.

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