著者

BAUM Harald

出版者

日本比較法研究所

雑誌

比較法雑誌 (ISSN:00104116)

巻号頁・発行日

vol.48, no.3, pp.41-79, 2014

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When it comes to regulating capital markets in the European Union, the most important legislative instrument is the Markets in Financial Instruments Directive, the so-called MiFID. The Directive primarily promotes market integration by granting market access and market integrity by regulating market supervision. As part of this it also emphasizes investor protection as a regulatory goal in its own right. To achieve this goal MiFID sets out "conduct of business rules" in its Articles 19 to 24 that postulate a number of transparency, information, and fiduciary obligations for investment firms when doing business with customers. From the traditional German point of view, this regulatory regime qualifies as a regulation that falls into the domain of public law - as opposed to that of private law. The EU, however, does not know such a clear distinction. The central question that arises here is whether the conduct of business rules do actually create civil law effects. The MiFID is - somewhat surprisingly - quiet on these matters. The European Court of Justice ruled in 2013 that the Member States are free to decide whether or not they want to implement civil law sanctions against a violation of conduct of business rules.Germany implemented the conduct of business rules into national law in the year 2007 by amending Articles 31 to 37 of the Securities Trading Act. Insofar as these provisions deal with the contractual relationship between an investment firm and its customers, they can be qualified as "functional civil law." This newly created investor protection sharply contrasts with the arcane case law developed by the German courts over the past decades on the basis of general private law. The later ensures a much more dogmatically refined, nuanced, and systematically coherent regime of investor protection than the one that the rather crude EU regulations can provide because these are shaped by diverse legal traditions and political compromise. A hotly debated question is how the interaction of supervisory law and civil law can be managed as both are only partly overlapping and partly leading to different, sometimes even contradictory obligations for investment firms. This unsolved fundamental issue permeates all capital market regulation at present.The German Federal Court of Justice postulates a strict primacy of the general civil law in relation to the conduct of business rules of the Securities Trading Act. According to this view, the conduct of business rules as part of public law can - at most - play only an indirect role in the context of interpreting already existing contractual and pre-contractual obligations. They can, however, not create any kind of obligation beyond those already established under private law. A second opinion, diametrically opposed to the first one, emphasizes an unrestricted primacy of the "functional" civil law of the Securities Trading Act over the general civil law. In this view, due to the principle of full or at least maximum harmonization in the field of investment services by MiFID, the German courts may no longer enforce those parts of their case law that are based on contractual or pre-contractual duties that are stricter than the conduct of business rules. A third view builds a compromise between the two contradictory views: it does not claim a primacy of public law in the form of "functional" civil law, but much more modestly assumes a "diffusion"-"Ausstrahlung"- of the pertinent public law rules into the general civil law and its application. This is probably the leading opinion in German academia today.