Herhaling Flashcards
1
Q
What was the Reyners case?
A
- Free movement of services and freedom of establishment: ECJ recognised direct effect early in the Reyners case: 2/74
- Free movement of capital and payments:
- Free movementof capital and payments is to a large extent the flip side of the other freedoms
- For a long time no direct effect: Casati
- Directive and subsequently, direct effect: Sanz de Lera
2
Q
What is negative integration?
A
- No impediments to free movement of financial services / capital and payments
3
Q
What is the White Paper?
A
- 1985: Completing the Internal Market
- Aim: removal of all barriers to trade in the EC
- Liberalisation of the movement of capital and payments
- Realisation of an internal market for financial services on the basis of:
- Minimum harmonisation
- Home state control
- Mutual recognition
- First generation directives on banking and investment services
4
Q
What are the drawbacks of the White paper approach?
A
- Incentives for “supervisory shopping”
- Risk of regulatory competition, resulting in a “race to the bottom”
- Lack of trust in other MS legislation / supervision, much goldplating
- Drawbacks of the legislative process:
- Slow
- Unable to respond to changing market conditions
- Invlined to produce ambiguous texts, mixing broad principles with detailed technical issues.
5
Q
What is the FSAP?
A
- 1999: Financial Services Action Plan: introduction of Euro and modern financial apparatus.
6
Q
What is the 4 level approach of the Lamfalussy legislative process?
A
- Level 1:
- Framework principles: basic political choices that can be translated into broad but sufficiently precise framework norms
- To be decided by normal legislative procedure
- Usually resulting in a framework directive
- Level 2:
- Implementing measures
- Mandate to the European Commission
- Usually resulting in an implementing directive or regulation
- Level 3: European Supervisory Authorities
- Common implementing standards by the newly level 3 committees
- Resulting in soft law with high authoritative value = level 3 measures: interpretation, recommendations, Q&A’s
- Level 4:
- Compliance check by the Commission: underpinned by enhanced cooperation between MS, national regulators and the private sector
- Resulting in enforcement measures
7
Q
What is the duality of know your customer and confidentiality?
A
- Confidentiality:
- Privacy
- Banking Secrecy
- Cooperation with public authorities
- Money laundering
- Financial supervisors
- Tax authorities
8
Q
Are there ECJ cases about banking secrecy?
A
- Can banking secrecy be a justification for restrictions on the free movement of services and capital?
- ECJ is reluctant to accept such reasoning
- ECJ joined cases: Passenheim van Schoot vs. Staatssecretaris van Financiën
9
Q
What is the Rubik Principle?
A
- Switzerland agreed to withholding tax deals that preserve banking secrecy: lump sum tax but to remain having banking secrecy.
10
Q
What is the problem of tying in the financial sector?
A
- Tying = koppelverkoop.
- Tying is anti-competitive as well as harmful to consumers and SMEs as they reduce customer mobility, rpice transparancy and the comparability of providers on the market, increase switching costs and negatively affect consumer confidence.
11
Q
What is the Citroën Belux case?
A
- Case about tying: lezen!
12
Q
Is there minimum harmonisation in the directive unfair contract terms?
A
- Article 8 information of the commission of more stringent provisions
- Commission makes this information easily accessible to consumers and traders
13
Q
What is the Pohotovost?
A
- Failure to mention the APR may be a decisive factor in the assessment by a national court of whether a term of a credit agreement concerning the cosst of that credit in which no such mention is made in written in plain, intelligible language with the meaning of article 4.
14
Q
What is the mohamed Aziz case?
A
- Mortgage loan contract: contrary to the requirement of good faith
- Spanish Bank had the right to call in the totality of the loan on expiry of a stipulated time-limit where the debtor failed to fulfil his obligation to pay any part of the principal or of the interest on the loan.
- Arbitration procedure, does not decide on unfair contract terms, does not stay the enforcement procedure until decision on unfair contract term by other court –> borrower has to pay before it has been dcided whether terms are unfair.
15
Q
What was the case Perenicova?
A
- Incorrect info on real APR in the contract
- Question was: can judge declare the contract null and void if that is more favourable to the consumer than declaring the unfair terms only null and void.
- When assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those therms, the court hearing the ase cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole
- But minimum harmonisation.
16
Q
What are the 4 blacks of investor protection?
A
- Product regulation
- Conduct of business rules
- Information
