Preparación del acompañamiento en la UGEL, DRE Y/O MINEDU

In this chapter the principles of the normative framework are applied to a case study. This is done in order to live up to the dual ambition of providing both the philosophical arguments in support of the framework, and demonstrating the practical dimensions of such a framework. The scope of this case study will be limited, due to time and size restrictions and the fact that the primary focus has been on the actual development of the framework.

The case study demonstrates that the normative framework is of practical importance, that it is a potentially useful analytical tool, and that it can be used to facilitate the debate on delegating authority to NMIs. The arguments presented in this chapter demonstrate why a more critical attitude should have been adopted when the government decided to delegate authority to the Dutch Authority for Financial Markets (AFM). This case study constitutes a first attempt at demonstrating the practical importance and application of the framework, in doing so, it hopes to inspire further empirical research in this area. The decision to delegate authority to the AFM has already been made by the government. This means that the principles of the framework are applied ex post delegation, therefore, they take on an evaluative rather than a prescriptive character.

5.1.2 The Dutch Authority for Financial Markets a crucial case

In order to compensate for the concise nature of the case study, a crucial case is selected. Crucial case design studies suggest that a limited number of cases, or even a single case, can be quite valuable for the purpose of testing theoretical propositions. If one’s theoretical predisposition suggests that a particular case is unlikely to be consistent with a theory’s predictions, and if in that case the data supports the theory, then the evidence of the case provides a great deal of leverage for increasing confidence in the validity of the theory (Levy, 2008: 12-13).

This thesis does not test a theory in the way that is required to speak of a true crucial case design study, instead it applies a normative framework. Selecting the AFM as a case does, however, share some resemblance to a crucial case. The technical nature of the task that is delegated to the AFM, its clear legal demarcation, the activities required for its task performance, and the common assumption that the market operates in a value free manner makes it plausible to assume that the government’s decision to delegate can be justified. It would have been far easier to demonstrate the practical application of the framework by selecting a case where the ethical nature of the delegated task is apparent at face value. For instance, when analyzing the UK’s Fertilization and Embryology Authority.

If it is possible to demonstrate that the decision to delegate authority to the AFM does not meet the requirements of the principles then the original decision to delegate cannot be justified, it should have been approached with greater care, more critically, or it should not have been made at all. If such an argument can be made in the unlikely case of the AFM then surely it also applies to more likely cases such as the UK’s Fertilization and Embryology Authority and other NMIs. The consequences of selecting the AFM as a case study for this thesis is best captured by the phrase: “If I can make it there, I can make it anywhere”.

5.1.3 Basic facts on the Dutch Authority for Financial Markets

The AFM meets the requirements of the definition of an NMI. The AFM1 _{is part of a}

separate community based on specialized knowledge and information, it holds and exercises a degree of specialized public authority which is distinct from other institutions, it is not directly elected by the people, nor directly managed by elected

1 _{The AFM is responsible for monitoring the financial markets in the Netherlands. Participants in the financial}

markets that fall under its jurisdiction include: financial service providers, (stock) exchanges, financial mediators, traders, and accountants. The AFM was founded the 1st _{of March in 2002, and it is the legal successor of the}

Foundation for Market Supervision (STE). It performs its duties under the Dutch Wet op het financieel toezicht (Wft), in particular under Art.1:25of the Wft. When the STE transitioned into the AFM in 2001, upon implementation of the legal note Hervorming van het toezicht op de financiële marktsector (Note nr2, 28 122), the AFM’s mandate was significantly expanded. Previously, the STE was primarily responsible for supervising behavioral conduct on exchanges. Now, the AFM is responsible for a wide variety of tasks such as: monitoring compliance with the Wet op het financieel toezicht, issuance of licenses for statutory audits, monitoring compliance with the ban on insider trading, and overlooking correctness of the financial leaflet that is compulsory for consumer financial products (Website AFM, 2016b).

officials, it operates on the basis of expert knowledge to which it actively contributes, and the sources of its knowledge lie outside government control.

Though the AFM is not directly managed by public officials, the Minister of Finance does appoint the board of the AFM, approves its budget, and decides on the height of the fees the AFM can charge for permits and licenses. Apart from that the AFM functions fully independent. It is solely responsible for the decisions it makes in individual cases, which are related to supervising the financial market sector’s compliance with statutory laws and regulations. The AFM also advises the government on the development of new laws and regulations (Website AFM, 2016a).

The AFM has several measures at its disposal in order to ensure that rules and regulations are complied with. Some of these measures are more severe than others, they include: engaging in norm transmissive dialogues, issuing warnings, public warning through press release, placement on the “warnings list”, cease and desist orders, issuing fines, expulsion of directors, and retracting permits (Website AFM, 2016c). The AFM prides itself on always performing a thorough investigation of the facts prior to taking any measures. Based on the facts of the investigation it decides

what constitutes the “best” course of action (Idem).