Auswirkungen des Art. 35a der Verordnung (EU) Nr. 462/2013 auf die zivilrechtliche Haftung von Ratingagenturen

Before the advent of the financial crisis, political and scholarly voices alike were of the unisonous opinion that rating agencies had sufficient legal and economic incentive to act diligently in the course of their business. This changed instantly when the financial crisis revealed massive misconduct on the part of rating agencies. In the wake of this, the EU legislature introduced Art. 35a of EU Regulation No. 462/2013, which grants investors and issuers a claim for damages against a rating agency, if and when the rating agency has violated its obligations under the Regulation in an intentional or grossly negligent manner.

The aforementioned complex liability provision on EU level is the focal point of this analysis, which, in the course of the inquiry, raises doubts as to the functional capability of the provision. Even though the benefits of, as a first, issuing a provision governing EU-wide liability are apparent, further actions are required from a legal policy point of view: The rating Regulation needs continuing reform.