Academic Scientific JournalsThe Customer as a Subject of Protection on the Financial Market in European Union
Keywords:
financial market, consumer protection, financial stability, financial services, financial crisesAbstract
The crisis begun in 2007 exposed the weakness of the existing regulations, revealing challenges for legislators all over the world. Financial stability started to be understood as an essential value for the proper operation of the financial market. It has become important to address the question as to how to protect financial markets from more crises, or at least alleviate their effects. The idea of supervision of a financial market has undergone thorough transformation. Particular emphasis has been placed on protecting buyers of financial services. Adequate customer protection has been recognized as a sign of trust in the market and its stability and has gained systemic importance and relevance for the European financial system.
There is a growing tendency to enlarge the group of subjects eligible for special protection. it is becoming an increasingly common idea that not only consumers but all non-professional customers should be protected. The idea is becoming widespread that the weaker party to a legal transaction can be not only a consumer [natural person] but also a non-professional market entity. Such a solution is certainly appropriate. Narrowing down the ‘consumer’ to a natural person may seem artificial and out of line with market realities, not to mention the serious consequences of bad financial decisions taken by non- professional financial market participants.
Another important challenge facing the modern financial market is to establish a system of institutional safeguards to ensure security for all market entities and to enforce fair play rules. However, even the best provisions of substantive law, though necessary, may prove to fall short.
Therefore, there is a pressing need for strong and competent both state and international institutions duly equipped with auditing and supervisory powers to deal with the present situation. They should also have the possibility of enforcing substantive laws in a way that allows for flexible responses to any emerging threat to the protected values.
The shift towards a regulatory and supervisory method of protection sets a more serious tone for the supervision model adopted for the financial market. In it, the market is responsible not only for ensuring that the supervised entities operate correctly, but also for the quality of services that they provide.
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References
Akinbami F., Financial services and consumer protection after the crisis, International Journal of Bank Marketing, Vol. 29, 2011.
Arner D. W., Barberis J.N., Buckley R.P., FinTech, RegTech and the Reconceptualization of Financial Regulation, Northwestern Journal of International Law & Business, Forthcoming, University of Hong Kong Faculty of Law Research Paper No. 2016/035, 2016.
Benohr I., Private Autonomy and Protection of the Weaker Party in Financial Consumer Contracts: an EU and International Law Perspective, European Law Reviev, no. 43, 2018.
Canova T.A., Financial Market Failure as a Crisis in the Rule of Law: From Market Fundamentalism to a New Keynesian Regulatory Model, Harvard Law & Policy Review, Vol. 3, 2009.
Ciacchi A. C., Freedom of contract as freedom from unconscionable contracts, in: M. Kenny, et al. (ed.), Unconscionability in European Private Financial Transactions: Protecting the Vulnerable, Cambridge: Cambridge University Press, 2010.
Cyman D., Consumers Protection In The Area Of Loans Indexed To Foreign Currency, in: Radvan M., Gliniecka J., Sowiński T., Mrkývka P. (eds.), The financial law towards challenges of the XXI century: (conference proceedings), Brno: Masaryk University, 2017.
Law S., The Transformation of Consumer Law in Times of Crisis: The Ex Officio Control of Unfair Contract Terms, Transformation of Civil Justice: Unity and Diversity, Ius Gentium-Comparative Perspectives on Law and Justice, no. 70, 2018.
Lefevre A., Chapman M., Behavioural economics and financial consumer protection, OECD Working Papers on Finance, Insurance and Private Pensions, No. 42, OECD Publishing, Paris; UN Manual on Consumer Protection, Advance Copy 2016.
Lui A., Lamb G. W., Artificial intelligence and augmented intelligence collaboration: regaining trust and confidence in the financial sector, Information & Communications Technology Law, vol. 27, 2018.
Mak V., Braspenning J., Errare Humanum Est. Financial literacy in European Consumer Credit Law, TISCO Working Paper Series on Banking, Finance and Services no. 01, 2012.
Moloney N., Financial market governance and consumer protection in the EU, in: Faia A., Hackentahl A., Haliassos M., Langenbucher K. (eds), Financial Regulation: A Transatlantic Perspective, Cambridge: Cambridge University Press, 2015.
Ramsey I., Changing Policy Paradigms of EU Consumer Credit and Debt Regulation, in: Weatherill S., Leczykiewics D. (eds), The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law, Oxford: Hart, 2015.
Ringe W. G., Morais L. S., Muñoz D. R., A Holistic Approach to the Institutional Architecture of Financial Supervision and Regulation in the EU, Oxford Legal Studies Research Paper No. 56/2019, 2019.
Rösler H., Protection of the Weaker Party in European Contract Law: Standardized and Individual Inferiority in Multi-level Private Law, European Regulatory Private Law, vol. 4, 2010.
Rutledge S. L., Consumer Protection and Financial Literacy, World Bank Policy Research Working Paper No. 5326, 2010.
Schinasi G. J., Defining Financial Stability, IMF Working Papers 2004, WP/04/187, 2004.
Schoenmaker D., Financial Supervision in the UE, in: Caprio, G. (ed.), Handbook of Safeguarding Global Financial Stability: Political, Social, Cultural, and Economic Theories and Models, London: Elsevier 2012.
Legal Acts
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95.
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, OJ L 149.
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, OJ L 133.
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304.
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L 173.
Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features, OJ L 257.
Other Official Documents
European Parliamentary Research Service, Consumer protection in the EU, Brussels 2015.
FSB, Consumer Finance Protection with particular focus on credit, Basel 2011.
OECD, Financial Literacy and Consumer Protection: Overlooked Aspects of the Crisis, OECD Recommendation on Good Practices on Financial Education and Awareness Relating to Credit, 2009.
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