The choice of instrument for EU legislation: mapping the system of governance under MiFID II and MiFIR

This study was designed to explore the level and character of EU centralisation through the legal instruments MiFID II and MiFIR. The conclusion is that at a general level the choice of legislative instrument (regulation or directive) does not seem to have any significant impact on the level of centralisation achieved. Instead, the two instruments seem to address different agents: MiFIR mainly governs the EU levels of administration, while MiFID II mainly governs the national levels and the rights and obligations of private parties. However, it is further demonstrated that the activities of national authorities are also being governed through the adoption of numerous non-legislative acts that are mainly regulations. This means that powers conferred on EU institutions under MiFID II and MiFIR entail a possibility of pre-emption of Member State discretion, which the Commission has used extensively.