Regulatory goals in capital markets law: Reflections on the value of provisions on goals in a codification act

This chapter considers whether it is desirable and useful an explicit indication of regulatory goals, and efficiency in particular, in the text of a possible Consolidated Law on Financial Markets Regulation at the European Union level. After a brief introduction on the concept of efficiency, it is argued that while these references are useful to make explicit the intentions of the legislature, they rarely offer a concrete guide to the interpreter to fill in statutory lacunae and or use analogy effectively, due to both the difficulty of translating them-and efficiency in particular-in specific criteria, and because they might point to alternative solutions without giving a clear ranking among the different options. In addition, efficiency as a general provision might lead to interpretative options that are in tension or in conflict with other values of the legal system, such as legal certainty. In short, it is suggested that while regulatory goals are useful in preambles or general clauses, in most cases they should not and cannot offer specific solutions to the interpreter to fill in regulatory gaps.