Public and Private Enforcement of European Private Law in the Financial Services Sector
European Review of Private Law, Vol. 24, No. 4, pp. 621-647, 2015
35 Pages Posted: 30 Aug 2015 Last revised: 10 Dec 2020
Date Written: August 10, 2015
Particularly in the wake of the global financial crisis, ensuring effective enforcement of the rules governing the relationship between financial institutions and their (potential) clients ranks high on the EU political agenda. Traditionally, such rules were enforced by civil courts at the initiative of one of the parties through the means available within national private laws. Over the past three decades or more, however, the EU and national legislators have tended to resort to the state and its agencies in monitoring the financial institutions’ compliance with their obligations towards the clients and ensuring the optimal level of enforcement. The rise of public enforcement by administrative agencies in the field of European private law for financial services gives rise to many interesting issues. How do financial watchdogs actually ‘manage’ private relationships between financial institutions and their clients? In what way does this affect the development of (European) private law? What role is left for private enforcement, in particular that by the judiciary, in the new reality? How do public and private enforcement interplay with each other? To what extent are the answers to these questions determined at EU level? And what are the major challenges in ensuring effective enforcement in the financial services field? By using the examples from EU law, as well as several European legal systems, this article seeks to address these issues and develop an agenda for further research.
Keywords: European private law, financial services, public enforcement, private enforcement
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