Civil Liability of Credit Rating Agencies after CRA 3 – Regulatory All-or-Nothing Approaches between Immunity and Over-Deterrence - European Business Law Review View Civil Liability of Credit Rating Agencies after CRA 3 – Regulatory All-or-Nothing Approaches between Immunity and Over-Deterrence by - European Business Law Review Civil Liability of Credit Rating Agencies after CRA 3 – Regulatory All-or-Nothing Approaches between Immunity and Over-Deterrence 25 2

Civil liability of rating agencies as provided for in Art. 35a of the newly amended EU-Rating Regulation and as discussed in the preceding process of political consensus- building does not solve well-known problems arising from issues of privity of contract, from difficulties of proof under tort law and from the risk of a market freeze resulting from over-deterrence. The distinction between an actual loss in ressources in the primary market and a loss resulting from redistribution in the secondary market may lead to a more differentiated analysis of the liability question. Presumptions in favor of the investor may help to overcome the insurmountable difficulties of proof relating to causation. Liability caps based on the concept of disgorgement of profits of the rating agencies may help to strike an adequate balance between the danger of macroeconomic harm created by reckless rating agencies and the threat of a market freeze resulting from over-deterrence.

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