Abstract
The conclusion synthesises the study’s main findings. The conceptualisation of the interaction between the MiFID and MiFID II conduct of business rules and private law norms determining a firm’s liability is discussed, as well as why this interaction should be guided by the complementarity model. In addition, the effect of the conduct of business rules on a firm’s liability under German, Dutch and English private law is compared. An analysis is made of the different manners and the varying degree to which these legal systems allow retail investors to invoke the conduct of business rules when bringing a claim for damages and benefit from these rules to clear obstacles to compensation. The conclusion demonstrates that the adoption by civil courts of the complementarity model has led to a hybridisation of private law remedies. Rather than avoiding the influence of the conduct of business rules, general contract and torts laws in the researched legal systems have shown the ability to accommodate EU investor protection regulation into the private law discourse. The hybridisation demonstrates not only the integration of EU investor protection regulation into national private law, but also the significant potential of enforcement by courts of the conduct of business rules through private law to contribute to investor protection. It allows courts to incorporate the conduct of business rules, and the underlying protective aim, within the decision whether to grant compensation on the basis of private law, which enables investors to benefit from the influence of these rules when claiming damages. At the same time, the analysis reveals differences in the extent to which investors harmed by breach of the conduct of business rules are actually able to successfully claim damages in national private law. The question which arises in this context is whether EU investor protection regulation should come to include a principle of civil liability in order to encourage and facilitate its private enforcement by aggrieved investors.
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Notes
- 1.
English law is understood as the legal system of England and Wales in this monograph.
- 2.
In German “eines allgemeinen – nunmehr nahezu flächendeckenden – Rechtsprinzip”. See in more detail: Sect. 5.2.3.2.
- 3.
It should be noted that by restricting access to private persons the remedy is unavailable to small and medium-sized enterprises.
- 4.
For a different, more top-down hybridisation approach, see: Reich (2013), pp. 98 et seq.; Reich (2007, 2010); similarly in the area of investment services Della Negra (2019), pp. 177 et seq. For more information about hybridisation, see Micklitz (2011), pp. 22 et seq., who advances remedies as “the most prominent example of hybridisation, where the different levels of the private law are coming together, national law and European private law (…)” and Tuori (2012), pp. 67 et seq., who argues that “there are no legal hybrids as such but only as seen from the perspective of a particular conceptual and systematizing framework”. Also in particular detail about a hybrid model of the relationship between financial conduct regulation and norm setting in common law, see Beatson (1992), pp. 61 and 64 et seq.; Law Commission, ‘Fiduciary Duties and Regulatory Rules’, Law Commission Consultation Paper No. 124, London: 1992, no. 5.4.23 et seq., of which Beatson was a commissioner at the time. See also Black (2004), p. 47.
- 5.
The findings of this research could thus be considered as a confirmation of Collin’s contention that the collision between regulation and private law can result in a reconfiguration of private law reasoning, see Collins (1999), p. 46.
- 6.
For a different idea of the integration of MiFID and MiFID II into private law, see Grundmann (2017), pp. 926 et seq.
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Wallinga, M. (2020). Conclusion. In: EU Investor Protection Regulation and Liability for Investment Losses. Studies in European Economic Law and Regulation, vol 20. Springer, Cham. https://doi.org/10.1007/978-3-030-54001-2_9
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