Digitalisation of Banking and the Consumer Protection: The Regulation of Unauthorised Payments from the Perspective of Institutional Law and Economics

Abstract

The paper reviews the regulatory approaches taken by Polish and British regulators. Whereas Poland adopted strong consumer protection regulatory measures due to the process of implementation of the PSD2 Directive (Directive (EU) 2015/2366) into the domestic legal system, raising the level of protection on a national level, the British regulatory system attained the same result by a complex set of actions taken by English courts, the British Financial Ombudsman System and the British Payment supervisory body. In both cases, however, the final level of consumer protection defers from the one explicitly set out by the Court of Justice of the European Union, which adopted a less favourable approach in its judgment in Case C-245/18 Tecnoservice Int. Srl, in liquidation v Poste Italiane SpA. Meanwhile, the further level of protection of consumers, namely the triple authorisation rule, has not been adopted on the level of the EU law so far. This situation led to institutional alternatives in the form of either statutory actions, judicial activism, or administrative interventions. The paper thus reviews the potential response to regulatory and market failure from the perspective of institutional law and economics.