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2018 | OriginalPaper | Chapter

8. Conclusions: The Unbridgeable Gaps with the United States and the Emergence of an Increasingly Self-Sufficient EU Regulatory Investor Protection Law

Author : Antonio Marcacci

Published in: Regulating Investor Protection under EU Law

Publisher: Springer International Publishing

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Abstract

On the one hand, EU law dims the US-inspired disclosure paradigm in favor of a paternalistic approach, shifting most of the investment responsibility onto the service providers’ shoulders. Nevertheless, the US system is still a blueprint, and the comparison shows how the US private-public enforcement interplay is not reproducible in Europe. The EU investor protection system seems irreparably incomplete. On the other hand, however, EU law now provides for a full set of public-law conduct-of-business rules, used as supervisory tool and whose level of details makes it directly applicable to firms. Such EU-made rules automatically become requirements for firms, with the Compliance Function behaving as rule-embedder and internal enforcer. Viewed from within-a-firm, the EU investor protection system increasingly resembles a self-sufficient Regulatory Investor Protection Law.

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previous chapter The Compliance Function as Embedder of the Law-on-the-books and as Enforcement-Frontliner

Francesco D’Alessandro, Regolatori Del Mercato, Enforcement E Sistema Penale (Torino: Giappichelli, 2014). At 406.

Hans-Wolfgang Micklitz, “The Visible Hand of European Regulatory Private Law—the Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation,” Yearbook of European Law 28, no. 1 (2009). At 18.

Niamh Moloney, Eilís Ferran, and Jennifer Payne, “Introduction,” in The Oxford Handbook of Financial Regulation, ed. Niamh Moloney, Eilís Ferran, and Jennifer Payne (Oxford: Oxford University Press, 2015). At 6.

In the words of Professor Avgouleas: “In an attempt to clean up US markets from abuse in the post-1929 crash era, the Roosevelt administration created widespread disclosure regimes for securities issuers and traders by means of the so-called New Deal Statutes: mainly the Securities Act 1933 and the Securities Exchange Act 1934.” Emilios Avgouleas, “What Future for Disclosure as a Regulatory Technique? Lessons from Behavioural Decision Theory and the Global Financial Crisis,” in The Future of Financial Regulation, ed. Iain G MacNeil and Justin O’Brien (Oxford: Hart Publishing, 2010). At 206.

On the “rational expectations investor model”: Lynn A. Stout, “The Investor Confidence Game,” Brooklyn Law Review 68, no. 2 (2002).

Filippo Zatti, “La Dimensione Costituzionale Della Tutela Del Risparmio. Dalla Tutela Del Risparmio Alla Protezione Dei Risparmiatori/Investitori E Ritorno?,” in Studi in Onore Di Vincenzo Atripaldi, ed. Marco Benvenuti et al. (Naples: Jovene, 2010).

In the words of Professor Tuch: “Generalized comparisons with the US are difficult. Nevertheless, MiFID I imposes a broad-based conflict-‘management’ obligation, while the US relies more on disclosure and, in some contexts, specific bans.” Andrew Tuch, “Conduct of Business Regulation,” in The Oxford Handbook of Financial Regulation, ed. Niamh Moloney, Eilís Ferran, and Jennifer Payne (Oxford: Oxford University Press, 2015). At 558.

Kristina A. Fausti, “A Fiduciary Duty for All,” Duquesne Business Law Journal 2009–2010, no. 2 (2010). At 187–189.

Hans-Wolfgang Micklitz, “Administrative Enforcement of European Private Law,” in The Foundations of European Private Law, ed. Roger Brownsword, et al. (Oxford-Portland: Hart Publishing, 2011).

Olha O. Cherednychenko, “Public Supervision over Private Relationships: Towards European Supervision Private Law?,” European Review of Private Law 22 no. 1 (2014).

On the link between PG and mis-selling: Carmine DiNoia, “Atto Del Governo N. 143 (Mercati Degli Strumenti Finanziari)—Audizione Informale, Commissione Finanze, Camera Dei Deputati,” (2017).

Tanja Bošković, Caroline Cerruti, and Michel Noël, “Comparing European and U.S. Securities Regulations: Mifid Versus Corresponding U.S. Regulations,” in World Bank Publications, ed. The World Bank (Washington, DC 2010). At 23.

Ibid. At 23.

Stephen J. Choi, “Regulating Investors Not Issuers: A Market-Based Proposal “California Law Review 88 (2000). At 284–302.

SEC Office of Investor Education and Advocacy, “Investor Bulletin: Accredited Investors,” Securities and Exchange Commission SEC, https://www.investor.gov/additional-resources/news-alerts/alerts-bulletins/investor-bulletin-accredited-investors.

Professor Tuch draws a parallel between US institutional clients and MiFID professional clients. Tuch. At 558.

On the general difficulties of choosing which institution is best equipped to implement policy goals, see the seminal contribution by professor Komesar: Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (Chicago: University of Chicago Press, 1997).

Alongside the connected complexities and the obvious political hurdles. The author would like to thank Federico Della Negra for this point.

The book does not mean to mythologize the United States, where the situation is anyhow not perfect. Apart from being very complex (as depicted in Chap. 5), the US system of public enforcement did not fully accomplish its mission when it failed to monitor consolidated supervised entities before 2008. (See: Christopher Cox, “Chairman Cox Announces End of Consolidated Supervised Entities Program,” http://www.sec.gov/news/press/2008/2008-230.htm.) In this regard, Professor Tagliabue points out how the Gramm–Leach–Bliley “repealed most of the existing legislation based on a sharp separation between banking, security, and insurance markets, giving origin to a single financial market. The creation of this single financial market, however, was not supported by appropriate regulation of the supervisory bodies, which remained unchanged”. Giovanna Tagliabue, “The Role of Controls in the International Financial Crisis,” International Review of Economics 56, no. 3 (2009). At 312. Furthermore, whether and the extent to which the PSLRA on class actions has actually delivered on its promises is still subject to various empirical studies (see Chap. 6).

Very interestingly, “these measures were considered by some as poor, and a review of the criteria is needed in view of substantially substituting the traditional “command and control” regulation with a quasi-market mechanism”.

Cherednychenko.

The mere violation of suitability rule does “not provide an independent basis for private relief” but it may be relevant in SEA Rule 10b-5 actions. Thomas Lee-Hazen, Broker-Dealer Regulation in a Nutshell (Thomson/West, 2003). At 161.

Olha O. Cherednychenko, “The Regulation of Retail Investment Services in the EU: Towards the Improvement of Investor Rights?,” Journal of Consumer Policy 33, no. 4 (2010). At 410.

Article 7.5(e): “[C]ivil liability attaches only to those persons who have tabled the summary including any translation thereof, but only where the summary is misleading, inaccurate or inconsistent, when read together with the other parts of the prospectus, or where it does not provide, when read together with the other parts of the prospectus, key information in order to aid investors when considering whether to invest in such securities.” Regulation 2017/1129/Eu.

Micklitz, “Administrative Enforcement of European Private Law.”

Della Negra argues that “the measures adopted by ESMA in the framework of its investor protection task may enhance the uniform interpretation of contract law across national jurisdictions and strengthen the private enforcement of the MiFID II conduct of business rules, namely by incentivising investors to bring claims for compensation before national courts based on the ESMA’s interpretation of the EU law.” Federico DellaNegra, “The Effects of the Esma’s Powers on Domestic Contract Law,” in Regulating and Supervising European Financial Markets: More Risks Than Achievements, ed. Mads Andenas and Gudula Diepenbrock (Berlin: Springer, 2016).

Iain MacNeil, “Enforcement and Sanctioning,” in The Oxford Handbook of Financial Regulation, ed. Niamh Moloney, Eilís Ferran, and Jennifer Payne (Oxford: Oxford University Press, 2015). At 297. Professor MacNeil adds that the US “pattern is not replicated across the world, as demonstrated by IOSCO assessments of regulatory systems which show that the lack of effective sanctions is a common weakness of many systems”.

Tommaso Padoa-Schioppa, “Self Vs. Public Discipline in the Financial Field,” in the London School of Economics (London 2002).

On the same wavelength, professor Tuch highlights how “[t]he general law serves as an important backdrop against which to consider COB regulatory developments.” Tuch. At 541.

Hans-Wolfgang Micklitz, “The Internal Vs. The External Dimension of European Private Law—a Conceptual Design and a Research Agenda,” in EUI Working Paper Law 2015/35, ed. European University Institute (Florence 2015).

On failures of attempts made in this direction (Draft Common Frame of Reference—DCFR and Common European Sales Law—CESL), see: “The Transformation of Enforcement in European Private Law: Preliminary Considerations,” European Review of Private Law 4 (2015). At 493–494.

On the relationship between full harmonization measures and national private legal orders: Olha O. Cherednychenko, “Financial Consumer Protection in the EU: Towards a Self-Sufficient European Contract Law for Consumer Financial Services?,” European Review of Contract Law 10, no. 4 (2014).

In her seminal work, Eilís Ferran carries out an analysis on the law’s role in building an integrated securities market. In particular, Professor Ferran points out: “The recent shift in Continental Europe towards securities market-based financing can be attributed to a range of factors, some of which affected securities markets around the world, some of which were exclusively, or particularly, EU-orientated. […] The evolving EU processes of political and economic integration also played a significant part in fostering the development of securities market-based financing.” Eilís Ferran, Building an EU Securities Market (Cambridge: Cambridge University Press, 2004). At 22–23.

Estée Lauder Cosmetics Gmbh & Co. Ohg V Lancaster Group Gmbh, ECR I–117 (2000).

Hans-Wolfgang Micklitz, “Social Justice and Access Justice in Private Law,” in EUI Working Paper Law 2011/2, ed. European University Institute (Florence 2011). At 6.

Peter Cartwright, “Optimal Consumer Protection in Financial Services,” in ECRI/CEPS SEMINAR at the European Credit Research Institute and Centre for European Policy Studies (Brussels 2001). At 7.

On such a legislative approach, it has been argued that consumer law cannot be just a tool to filling up the gaps of a market system: “At stake are elements of the correction of market failures and, additionally, the achievement of fairness to consumers (inter alia) as the economically weaker parties. Consumer protection law has a wide range of forms and objectives.” Geraint Howells and Stephen Weatherill, eds., Consumer Protection Law, 2nd Ed. (Hants Ashgate, 2005).

Hans-Wolfgang Micklitz, “Jack Is out of the Box—the Efficient Consumer-Shopper,” Juridiska Föreningen i Finland 3, no. 4 (2009). At 422.

What might be exported from the American experience in Europe is a harmonized power of public enforcers to bring civil actions against investment firms as an alternative to public enforcement measures through sanctions and fines. However, harmonization of such power at European level might be counterproductive since divergences between Member States may emerge, with the result of creating barriers within the Single Market. This would be due to the different private remedies provided by national civil regimes (on which the EU has no harmonizing powers).

Cartwright. At 7.

Niamh Moloney, How to Protect Investors: Lessons from the EC and the UK (Cambridge: Cambridge University Press, 2010). At 46.

These words are used by the World Bank in: World Bank, “Bulgaria Diagnostic Review of Consumer Protection and Financial Capability Vol I,” (Washington, DC: Private and Financial Sector Development Department for Europe and Central Asia Region, 2009). At 6.

In the words of Professor Moloney: “[E]mpowerment is concerned with equipping and encouraging the retail investor to navigate the financial markets.” Moloney. At 53.

Tom Van Dyck, “(Opt-out) Intermediation as an Alternative for Ensuring a True Protection for European Retail Investors?,” Catholic University of Leuven (KUL) Working Paper (2009). At 23. Also Troy A. Paredes, “Blinded by the Light: Information Overload and Its Consequences for Securities Regulation,” Washington University Law Quarterly 81, no. 2 (2003).

Van Dyck. At 24.

Daniel Kahneman and Amos Tversky, “Prospect Theory: An Analysis of Decision under Risk “Econometrica 47, no. 2 (1979).

Bounded rationality implies that economic agents have problems when “formulating and solving complex problems and [when] processing (receiving, storing, retrieving, transmitting information” [Oliver E Williamson, “The Economics of Organization: The Transaction Cost Approach,” American Journal of Sociology 87, no. 3 (1981)]. Indeed, if the investor is not actually fully rational, the allegedly “enough” information is likely to be either “too much” or even useless. And if one has information that s/he can potentially use but s/he does not know how to use it, then her/his choice will not be the best possible result and this can eventually generate imperfections in her/his own decision-making process (thus transaction costs).

In the words of Professors Enriques and Gilotta: “Problems of bounded rationality and information overload (the incapacity of the individual investor to ‘handle’ large amounts of information) prevent the unsophisticated investor from really benefiting from MD [mandatory disclosure] and may even make matters worse, relative to a situation of less available information.” Luca Enriques and Sergio Gilotta, “Disclosure and Financial Market Regulation,” in The Oxford Handbook of Financial Regulation, ed. Niamh Moloney, Eilís Ferran, and Jennifer Payne (Oxford: Oxford University Press, 2015). At 516.

On cognitive biases and other important deviations from full rationality in the financial contexts, see the seminal contribution of professors Nicholas Barberis and Richard Thaler, “Chapter 18: A Survey of Behavioral Finance,” in Handbook of the Economics of Finance—Volume 1, Part B, ed. George M. Constantinides, Milton Harris, and René Stulz (Amsterdam: Elsevier, 2003).

On the perverse effect of mandatory disclosure: Van Dyck. At 23–24.

Niamh Moloney, “Regulating the Retail Markets,” in The Oxford Handbook of Financial Regulation, ed. Niamh Moloney, Eilís Ferran, and Jennifer Payne (Oxford: Oxford University Press, 2015). At 748. Similarly, Professors Svetiev and Ottow state that: “[T]he shift from emphasis on market transparency towards greater supervision of private law areas such as contract development and corporate governance may reflect the observed failures of the disclosure paradigm in financial markets as buttressed by a growing body of research in behavioural economics and finance”. Yane Svetiev and Annetje Ottow, “Financial Supervision in the Interstices between Private and Public Law,” European Review of Contract Law 10, no. 4 (2014). At 502.

In the words of professor Moloney: “[the] more conservative investors who dominate in the EC market (typically consumers of investment products which [can be] characterized as prudent ‘savers’) found disclosures to be complicated, obscure, complex, incomplete, often designed as marketing rather than information documents and insufficiently focused on risk; they relied on advice rather than on personal assessment of disclosure.” Moloney, How to Protect Investors: Lessons from the EC and the UK. At 294.

Cherednychenko, “Public Supervision over Private Relationships: Towards European Supervision Private Law?.” At 40.

Professor Cherednychenko points out that: “The financial crisis has urged a rethinking of the pre-crisis regulatory philosophy driven by the consumer empowerment model and the point of no return has probably already been reached.” “Freedom of Contract in the Post-Crisis Era: Quo Vadis?,” European Review of Contract Law 10, no. 3 (2014). At 418.

Ibid. At 418–421.

DiNoia.

Moloney, How to Protect Investors: Lessons from the EC and the UK. At 134.

Cherednychenko, “Financial Consumer Protection in the EU: Towards a Self-Sufficient European Contract Law for Consumer Financial Services?.” Vanessa Mak, “The Consumer in European Regulatory Private Law,” in Tilburg Private Law Working Paper Series No. 05/2015, ed. Tilburg University (Tilburg 2015).

On a similar fashion, Professors Svetiev and Ottow highlight that product intervention “creates uncertainty for firms and shifts on them the responsibility for assessing the likely consumer detriment”. Svetiev and Ottow. At 508.

Except for the portfolio management service which based on a mandate.

The Compliance Function is responsible for the effectiveness of the processes, procedures, and programs it crafts: “[T]he external enforcer needs to monitor the compliance function to ensure that it is faithfully and effectively carried out.” Geoffrey P. Miller, “The Compliance Function: An Overview,” in Law and Economics Working Papers—Paper 393, ed. New York University (2014). At 2.

Professor Cherednychenko speaks of “hard paternalism in post-crisis financial services regulation”. Cherednychenko, “Freedom of Contract in the Post-Crisis Era: Quo Vadis?.” At 418.

In the words of Professor Cherednychenko: “Minimising personal responsibility in financial decision-making may remove any incentive for consumers to learn and play an active role in policing financial institutions.” Ibid. At 419. In a similar fashion on product intervention, Professor Moloney claims that “product intervention […] might be regarded as infusing retail market regulation with an overly paternalistic approach which risks limiting investor autonomy and firm innovation”. Moloney, “Regulating the Retail Markets.” At 763.

Cherednychenko, “Freedom of Contract in the Post-Crisis Era: Quo Vadis?.” At 419.

In the words of Professor Tison: “EU securities law is devised as a system that is not intended to realize enforcement primarily through private litigation and enforcement”, Michel Tison, “The Civil Law Effects of Mifid in a Comparative Law Perspective,” in Financial Law Institute Working Paper 2010–05, ed. Universiteit Gent—Financial Law Institute (Gent 2010). At 17.

Within the ADR and private enforcement context, Professor Cherednychenko points out how these mechanisms are likely to add “another layer of rules in an already complex legal matrix for financial services—one consisting of contract-related financial supervision rules, on the one hand, and traditional private law rules, on the other”. Olha O. Cherednychenko, “Public and Private Enforcement of European Private Law in the Financial Services Sector,” European Review of Private Law 24, no. 4 (2015). At 639.

Svetiev and Ottow. At 511.

On a similar wavelength, Lenglet speaks of “Ambivalence and Ambiguity”. Marc Lenglet, “Ambivalence and Ambiguity: The Interpretive Role of Compliance Officers,” in Finance: The Discreet Regulator, ed. Isabelle Huault and Chrystelle Richard (London: Palgrave Macmillan, 2012). At 61.

“In the course of private adjudication, civil courts also played an important role in the development of private law by filling in open-ended private law norms, such as good faith, good morals, or public policy.” Public Supervision over Private Relationships: Towards European Supervision Private Law?”. European Review of Private Law 22, no. 1 (2014): 37–68. At 38.

“To put it bluntly, in practice national courts and national regulatory agencies tend to become ‘agents’ of the European ‘principal’.” Micklitz, “The Transformation of Enforcement in European Private Law: Preliminary Considerations.” At 522.

Close to the tables developed by Professor Micklitz in “Administrative Enforcement of European Private Law.” At 569 and 587–588.

“The Transformation of Enforcement in European Private Law: Preliminary Considerations.” At 520.

A recent example for the financial services sector is the Bankinter case. Genil 48 Sl and Comercial Hostelera De Grandes Vinos Sl V Bankinter Sa and Banco Bilbao Vizcaya Argentaria Sa.

As rightly pointed out by Professor Miller: “[A]n external norm enforcer may not have the resources or the ability either to detect violations or to devise an effective system of sanctions. The organization has the knowledge and the ability to more effectively perform these tasks. It therefore makes sense for institutions to police themselves—to carry out a compliance operation.” Miller. At 2.

In the United States, for instance, the adoption of the Gramm-Leach-Bliley Act in 1999 “created a significant regulatory gap by failing to give to the SEC or any agency the authority to regulate large investment bank holding companies”. Cox.

Professor Brummer argues that this centralization has “made possible a shift in the transatlantic balance of regulatory power”. Chris Brummer, Soft Law and the Global Financial System: Rule Making in the twenty-first Century (Cambridge; New York: Cambridge University Press, 2012).

This is heralded by the words of the European Commission in its recent ESA Consultation Paper: “As the EU is developing the CMU, there is a need to consider how more integrated supervision at EU level can support the development of deeper and more integrated capital markets through more convergent supervisory approaches and outcomes which ensure consistency in the application of capital markets rules and the supervision of market participants. […]The Five Presidents’ Report had previously acknowledged the need to strengthen the supervisory framework through more centralisation of supervision of capital markets in order to ensure the solidity of all financial actors. […] A possible extension of ESMA’s powers could be considered in market segments in which there is a strong need to support more integrated, efficient and well-functioning financial instruments markets […] or in areas where high integration or intense cross-border activity entail higher cross-border contagion risks to financial stability or market integrity.” European Commission, “Public Consultation on the Operations of the European Supervisory Authorities,” (2017). At 16–17.

“The US approach involves multiple layers of rules, sources of law, and regulators. The product is a complex and often esoteric amalgam of laws.” Tuch. At 546.

As pointed out by Svetiev and Ottow, the MiFID II obligation to establish ADRs “can be interpreted as a striving towards a self-sufficient EU private legal order”. Svetiev and Ottow. At 511.

In the words of Professor Micklitz: “[P]ublic administrative law […] put[s] pressure on private law rules.” Micklitz, “The Transformation of Enforcement in European Private Law: Preliminary Considerations.” At 516. On the resistance of national laws against the intrusion of European regulatory contract law: Cherednychenko, “Financial Consumer Protection in the EU: Towards a Self-Sufficient European Contract Law for Consumer Financial Services?.” At 486–491.

As shown by the quantity and quality of ESMA’s technical standards.

Cherednychenko, “Financial Consumer Protection in the EU: Towards a Self-Sufficient European Contract Law for Consumer Financial Services?.”

On the degree of self-sufficiency of Financial Consumer Protection in the EU: ibid.

Advocacy, SEC Office of Investor Education. “Investor Bulletin: Accredited Investors.” Securities and Exchange Commission SEC. https://www.investor.gov/additional-resources/news-alerts/alerts-bulletins/investor-bulletin-accredited-investors.

Avgouleas, Emilios. “What Future for Disclosure as a Regulatory Technique? Lessons from Behavioural Decision Theory and the Global Financial Crisis.” In The Future of Financial Regulation, edited by Iain G. MacNeil and Justin O’Brien. Oxford: Hart Publishing, 2010.

Barberis, Nicholas, and Richard Thaler. “Chapter 18: A Survey of Behavioral Finance.” In Handbook of the Economics of Finance – Volume 1, Part B, edited by George M. Constantinides, Milton Harris and René Stulz. Amsterdam: Elsevier, 2003.

Bošković, Tanja, Caroline Cerruti, and Michel Noël. “Comparing European and U.S. Securities Regulations: MiFID Versus Corresponding U.S. Regulations.” In World Bank Publications. Washington, DC: The World Bank, 2010.

Brummer, Chris. Soft Law and the Global Financial System: Rule Making in the 21st Century. Cambridge/New York: Cambridge University Press, 2012.

Cartwright, Peter. “Optimal Consumer Protection in Financial Services.” ECRI/CEPS SEMINAR at the European Credit Research Institute and Centre for European Policy Studies. Brussels, 2001.

Cherednychenko, Olha O. “The Regulation of Retail Investment Services in the EU: Towards the Improvement of Investor Rights?”. Journal of Consumer Policy 33, no. 4 (2010): 403–24.

———. “Financial Consumer Protection in the EU: Towards a Self-Sufficient European Contract Law for Consumer Financial Services?”. European Review of Contract Law 10, no. 4 (2014a): 476–95.

———. “Freedom of Contract in the Post-Crisis Era: Quo Vadis?”. European Review of Contract Law 10, no. 3 (2014b): 390–421.

———. “Public Supervision Over Private Relationships: Towards European Supervision Private Law?”. European Review of Private Law 22, no. 1 (2014c): 37–68.

———. “Public and Private Enforcement of European Private Law in the Financial Services Sector.” European Review of Private Law 24, no. 4 (2015): 621–47.

Choi, Stephen J. “Regulating Investors Not Issuers: A Market-Based Proposal”. California Law Review 88 (2000): 279–334.

Cox, Christopher. “Chairman Cox Announces End of Consolidated Supervised Entities Program”. http://www.sec.gov/news/press/2008/2008-230.htm.

D’Alessandro, Francesco. Regolatori Del Mercato, Enforcement E Sistema Penale. Torino: Giappichelli, 2014.

DellaNegra, Federico. “The Effects of the ESMA’S Powers on Domestic Contract Law.” In Regulating and Supervising European Financial Markets: More Risks Than Achievements, edited by Mads Andenas and Gudula Diepenbrock. Berlin: Springer, 2016.

DiNoia, Carmine. “Atto Del Governo N. 143 (Mercati Degli Strumenti Finanziari) – Audizione Informale, Commissione Finanze, Camera Dei Deputati.” 2017.

Enriques, Luca, and Sergio Gilotta. “Disclosure and Financial Market Regulation.” In The Oxford Handbook of Financial Regulation, edited by Niamh Moloney, Eilís Ferran and Jennifer Payne. Oxford: Oxford University Press, 2015.

Estée Lauder Cosmetics Gmbh & Co. Ohg V Lancaster Group Gmbh, ECR I–117 (2000).

European Commission. “Public Consultation on the Operations of the European Supervisory Authorities.” 2017.

Fausti, Kristina A. “A Fiduciary Duty for All.” Duquesne Business Law Journal 12, no. 2 (2010): 183–209.

Ferran, Eilís. Building an EU Securities Market. Cambridge: Cambridge University Press, 2004.

Howells, Geraint, and Stephen Weatherill, eds. Consumer Protection Law. 2nd ed. Aldershot: Hants Ashgate, 2005.

Kahneman, Daniel, and Amos Tversky. “Prospect Theory: An Analysis of Decision Under Risk”. Econometrica 47, no. 2 (1979): 263–91.

Komesar, Neil. Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy. Chicago: University of Chicago Press, 1997.

Lee-Hazen, Thomas. Broker-Dealer Regulation in a Nutshell. St. Paul, MN: Thomson/West, 2003.

Lenglet, Marc. “Ambivalence and Ambiguity: The Interpretive Role of Compliance Officers.” In Finance: The Discreet Regulator, edited by Isabelle Huault and Chrystelle Richard. London: Palgrave Macmillan, 2012.

MacNeil, Iain. “Enforcement and Sanctioning.” In The Oxford Handbook of Financial Regulation, edited by Niamh Moloney, Eilís Ferran and Jennifer Payne. Oxford: Oxford University Press, 2015.

Mak, Vanessa. “The Consumer in European Regulatory Private Law.” In Tilburg Private Law Working Paper Series No. 05/2015. Tilburg: Tilburg University, 2015.

Micklitz, Hans-Wolfgang. “Jack Is Out of the Box – The Efficient Consumer-Shopper.” Juridiska Föreningen i Finland 3, no. 4 (2009a): 417–36.

———. “The Visible Hand of European Regulatory Private Law—The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation.” Yearbook of European Law 28, no. 1 (2009b): 3–59.

———. “Administrative Enforcement of European Private Law.” In The Foundations of European Private Law, edited by Roger Brownsword, Hans-Wolfgang Micklitz, Leone Niglia and Stephen Weatherill, 563–92. Oxford-Portland: Hart Publishing, 2011a.

———. “Social Justice and Access Justice in Private Law.” In EUI Working Paper Law 2011/2. Florence: European University Institute. 2011b.

———. “The Internal Vs. The External Dimension of European Private Law—A Conceptual Design and a Research Agenda.” In EUI Working Paper Law 2015/35. Florence: European University Institute, 2015a.

———. “The Transformation of Enforcement in European Private Law: Preliminary Considerations.” European Review of Private Law 4 (2015b): 491–524.

Miller, Geoffrey P. “The Compliance Function: An Overview.” In Law and Economics Working Papers – Paper 393. New York University, 2014.

Moloney, Niamh. How to Protect Investors: Lessons from the EC and the UK. Cambridge: Cambridge University Press, 2010.

———. “Regulating the Retail Markets.” In The Oxford Handbook of Financial Regulation, edited by Niamh Moloney, Eilís Ferran and Jennifer Payne. Oxford: Oxford University Press, 2015.

Moloney, Niamh, Eilís Ferran, and Jennifer Payne. “Introduction.” In The Oxford Handbook of Financial Regulation, edited by Niamh Moloney, Eilís Ferran and Jennifer Payne. Oxford: Oxford University Press, 2015.

Padoa-Schioppa, Tommaso. “Self Vs. Public Discipline in the Financial Field.” In The London School of Economics. London: Routledge, 2002.

Paredes, Troy A. “Blinded by the Light: Information Overload and Its Consequences for Securities Regulation.” Washington University Law Quarterly 81, no. 2 (2003): 417–85.

Regulation 2017/1129/Eu.

Stout, Lynn A. “The Investor Confidence Game.” Brooklyn Law Review 68, no. 2 (2002): 407–37.

Svetiev, Yane, and Annetje Ottow. “Financial Supervision in the Interstices Between Private and Public Law.” European Review of Contract Law 10, no. 4 (2014): 496–544.

Tagliabue, Giovanna. “The Role of Controls in the International Financial Crisis.” International Review of Economics 56, no. 3 (2009): 303–13.

Tison, Michel. “The Civil Law Effects of MiFID in a Comparative Law Perspective.” In Financial Law Institute Working Paper 2010–05. Gent: Universiteit Gent – Financial Law Institute, 2010.

Tuch, Andrew. “Conduct of Business Regulation.” In The Oxford Handbook of Financial Regulation, edited by Niamh Moloney, Eilís Ferran and Jennifer Payne. Oxford: Oxford University Press, 2015.

Van Dyck, Tom. “(Opt-out) Intermediation as an Alternative for Ensuring a True Protection for European Retail Investors?”. Catholic University of Leuven (KUL) Working Paper, 2009.

Williamson, Oliver E. “The Economics of Organization: The Transaction Cost Approach.” American Journal of Sociology 87, no. 3 (1981): 548–77.

World Bank. “Bulgaria Diagnostic Review of Consumer Protection and Financial Capability, Vol. I.” Washington, DC: Private and Financial Sector Development Department for Europe and Central Asia Region, 2009.

Zatti, Filippo. “La Dimensione Costituzionale Della Tutela Del Risparmio. Dalla Tutela Del Risparmio Alla Protezione Dei Risparmiatori/Investitori E Ritorno?”. In Studi in Onore Di Vincenzo Atripaldi, edited by Marco Benvenuti, et al., 1469–94. Naples: Jovene, 2010.

Title: Conclusions: The Unbridgeable Gaps with the United States and the Emergence of an Increasingly Self-Sufficient EU Regulatory Investor Protection Law
Author: Antonio Marcacci
Publisher: Springer International Publishing
Book: Regulating Investor Protection under EU Law
Print ISBN: 978-3-319-90296-8

Electronic ISBN: 978-3-319-90297-5

Copyright Year: 2018
DOI: https://doi.org/10.1007/978-3-319-90297-5_8