EU Investor Protection Regulation and Liability for Investment Losses

This book examines the relationship between the EU investor protection regulations enshrined in MiFID and MiFID II and national contract and torts law. It describes how the effect of the conduct of business rules as implemented in national financial supervision legislation in private law extends to the issue of enforcement, and critically assesses this interaction from the perspective of EU law. In particular, the conclusions identified in the book will deepen readers’ understanding of the interplay between the conduct of business rules and private law norms governing a firm’s liability to pay damages, such as duty of care, attributability of damage, causation, contributory negligence and limitation. In turn, the book identifies the subordination and the complementarity model to conceptualise the interaction between the conduct of business rules and private law norms.

Moreover, the book challenges the view that civil courts are – or should be – forced to give privatelaw effects to violation of the MiFID and MiFID II conduct of business rules in line with the subordination model. Instead, the complementarity model is advanced as the preferred approach to this interaction in view of what MiFID and MiFID II require from Member States in terms of their implementation, as well as the desirability of each model. This model presupposes that courts should consider the conduct of business rules when adjudicating individual disputes, while preserving the autonomy of private law norms governing liability of investment firms towards clients.

Based on analysis of case law of courts in Germany, the Netherlands and England & Wales, as well as scholarly literature, the book also compares the available causes of action, the conditions of liability and the obstacles investors face when claiming damages, as well as how and the extent to which investors can benefit from the conduct of business rules in clearing these obstacles. In so doing, under the approachadopted by national courts to the interplay between the conduct of business rules of EU origin and private law, the book shows how investors can benefit from the influence of these rules on private law norms. In closing, it demonstrates a hybridisation of private law remedies resulting from the accommodation of the conduct of business rules into the private law discourse according to the complementarity model, illustrating how judicial enforcement through private law means may contribute to investor protection.

• MiFID (II)
• MiFID (II) and private law
• Mis-selling of financial instruments
• Conduct of business rules
• EU investor protection regulation
• (retail) Investor protection
• Investment services
• Investment losses
• Liability to pay damages
• Comparative law

• Faculty of Law, University of Groningen, Groningen, The Netherlands

  Marnix Wallinga

Dr. Marnix Wallinga is a lawyer at Stibbe in Amsterdam and a member of the Groningen Centre for European Financial Services Law. Previously, he was a Postdoctoral Research Fellow at the University of Groningen. After having graduated cum laude with a Research Master in Law at the same university, he held the position of lecturer and researcher at the Department of Private and Notarial Law in Groningen. In 2018 he defended his PhD in Groningen on the interplay between EU Investor Protection Regulation and Private Law. Marnix spent time as a visiting researcher at the Max-Planck-Institut für ausländisches und internationales Privatrecht in Hamburg, the London Institute of Advanced Legal Studies, the London School of Economics and Political Science and the University of Oxford for his doctoral research. He is particularly interested in financial regulation, (modes of enforcement of) EU law, European private law, the interplay between private and administrative law, and soft law.

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