The Individual Protection Goal in EU Banking Regulation – A Process Towards Private Law Enforcement

Forthcoming in: S Grundmann and P Sirena (eds), European Contract Law in the Banking and Financial Union (Intersentia, 2020), ISBN 9781780686622

29 Pages Posted: 1 Jul 2019 Last revised: 16 Apr 2020

See all articles by Nikolai Badenhoop

Nikolai Badenhoop

Humboldt University of Berlin, Faculty of Law

Date Written: January 7, 2020

Abstract

Private law remedies are an increasingly important tool in EU law to enforce its regulatory goals, which is particularly evident in the areas of competition law and capital markets law. In contrast, private enforcement of banking regulation only plays a limited role so far. This is astonishing given that the protection of individual bank customers appears to be a fil conducteur in EU banking regulation. CRD IV and CRR as the main legislative acts of banking regulation strongly promote the goals of depositor and investor protection. More explicitly, the Consumer Credit Directive and the Consumer Mortgage Credit Directive introduced the duty of responsible lending towards consumers. Both the individual protection goals and the duty of responsible lending mirror the importance of private enforcement in other regulatory areas of EU law for banking regulation. In the absence of clear ECJ guidance, this contribution argues that the current EU banking regulation is open for and even requires private law remedies to enforce individual protection goals. Suitable instruments include contract interpretation, contract nullity and damages.

Keywords: EU banking regulation; private law; damages; private enforcement; contract nullity; contract interpretation; EU competition law; EU capital markets law

JEL Classification: K12, K13, K21, K22, K23, K42

Suggested Citation

Badenhoop, Nikolai, The Individual Protection Goal in EU Banking Regulation – A Process Towards Private Law Enforcement (January 7, 2020). Forthcoming in: S Grundmann and P Sirena (eds), European Contract Law in the Banking and Financial Union (Intersentia, 2020), ISBN 9781780686622, Available at SSRN: https://ssrn.com/abstract=3411430

Nikolai Badenhoop (Contact Author)

Humboldt University of Berlin, Faculty of Law ( email )

Berlin
Germany

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