The Private Law Effect of MiFID: the Genil Case and Beyond

Abstract

AbstractThis article examines to what extent the civil courts are bound by MiFID I/MiFID II under EU law. The following questions are considered in this context: (1) May civil courts be less strict than MiFID I/MiFID II? (2) May civil courts be stricter than MiFID I/MiFID II? (3) May contracting parties be less strict than MiFID I/MiFID II? (4) May contracting parties be stricter than MiFID I/MiFID II? (5) What effect does MiFID I/MiFID II have on the requirement of proximity or relativity in the Member States where this is a requirement for liability in tort? (6) What effect does MiFID I/MiFID II have on the proof of causal link? (7) What is the influence of MiFID I/MiFID II on a contractual limitation or exclusion of liability? (8) Should civil courts apply MiFID I/MiFID II of their own motion?