Week 3B: Market Regulation and the Public/Private Divide Flashcards
TRUE or FALSE: The EU acknowledges the distinction between private and public law to some extent.
FALSE
–> idk me no philosopher
–> but basically ye
Explain what European regulatory Private law is
- when eu sec. law
-affects the rel. of priv. party
-REGARDLESS, of the nature of the law (pub vs. prov) (indirect or direct)
-TRANSPOSED into leg. order MS
-FOCUS: private law furthers European Integration
Explain the strengths of ‘European Regulatory Private law’
- incr. Market integr.
-harmonisation=
-level playing field for bus.
-adeq. protec. 4 consumers
-other public goals
Explain the challenges of European Regulatory Private Law
- Div. nat. laws
- Information asymmetry btwn mark. part.
- digititlisat. harder to adj. law to changing times–> cons. protect. online, safety
4.emerg. focus on sustainability - purely nat. solutions do not suffice
-neither do ‘public law’ instruments + enforcmenet mechanisms (NB: watch lecture recording on this part)
Explain the legal matrix of European Regulatory Private Law
-actors acting all at once to enforce + interpre. (leg. impl. in nat. law, dom. courts interpr., adr bodies on the rise)
-rel. btween priv. parties affect. by nat. public law, nat. priv. law and eu law (depending on impl.)
Give an example illustrating the existence of European Regulatory Private Law and explain your choice.
-Product Liability Directive
-strict liability for damage (affects priv rel.) caused by defect in product
-private law orient. mechanism
List examples of European Regulatory Private Law
-Product Liability Directive
-Unfair Commercial Practices Directive
-EU’s Payment Services Directive
Explain what European Supervision Private Law is
- When EU conduct of business rules (in regards to relations with clients)
-forms part of framework for PUB SUPERVISION.
-+ public enforcement
NB: focus is on the fact that there is PUBLIC supervision, not on private enforcement
Explain the Characteristics of European Supervision Private Law
-Regulatory in nature
-ex ante stand. sett. by public authorities
-Dev. outside the trad. priv. law system
-enforcement through admin law (sanctions,etc.) NOT civil courts
Give an Example of European Supervision Private Law and explain your choice.
Markets in Financial Instruments Directive
-provides for administrative fines
-can by imp. by competent adminsitrative supervisory authority
Explain the differences between European Supervision Private and Traditional Private law
-public enforcement vs. priv. enforce.
-reg. vs interperrsonal justice
- ex ante stand. setting vs. ex. post
-Dev. outside trad. priv. law systems
Explain the differences between European Supervision Private Law and traditional national public law
- supervision still affects hor. relationship
-pub. law concerns ver. rel.
Explain the relationship between European Regulatory Private Law and European Supervision Private Law
- European Supervision Private Law is part of
European Regulatory Priv. Law, as concerns rules which concern:
-hor. rel.
-but mainly those that create the framework for pub. sup.
Explain the differences between European Supervision Private Law and European Regulatory Private Law
-European Supervision Private law only concerns norms that
-form frame. 4 use of pub. enf.
TRUE or FALSE: the Payment Services Directive has both pub. and priv. law grammar
-TRUE
-Pub. supervision of PSP + individ. cons. redress
TRUE or FALSE: THE MiFID II only has private law grammer
FALSE: only has public law grammar
e.g: no priv. law remedies, authoris. requirements for ISPs
Explain the regulatory compliance defence
-Contending that follow. gov. standards so acti/product is not illegal
(think: if accused of car being unsafe, claim followed standards)
Give an example of Regulatory Compliance Defiance Being Used
Woekerpolis Scandal
-argued followed all standards set by pub. law
-but priv. law applied here
What are the three ways to view the relationship between EU Market Regulation and National Private Law
Through three models
-separation
-substitution
-complementarity
Explain the Separation model
- EU priv.oriented law not transposed into nat. private law
Explain the substitution Modal
-EU reg. private law becomes part of NAT. private alw
-supersede previous norms
NB: nat. laws cannot hv more stringent requirements
-than those set by EU regulations und. this model
Explain the complementarity modal
-EU reg. priv. law rule becomes part of nat. pub. law
-but infl. priv. law rules
-judge tend to follow princ.
NB: here possible for national private 2 imp. strict. stand. than eu law
Explain the difference between the substitution model and complementary model
-Substitution model–> eu reg. priv. law rules become part of nat. priv law
-but that nat legal syst cannot employ strict. restrictions than tht eu law
-Complementarity model–> national private law not restricted by eu reg. pub law
Explain why the EU does not underline the differenece between Private Law and Public Law
-FUNCTI. APPROACH
-PROB. solving
-maximimise, tailor-made approach > distinction
