Financial Supervision in the Interstices Between Private and Public Law

Abstract

The article focuses on the recently enacted EU legislative provisions on financial product development from the perspective of the current supervisory approach of national financial authorities of three EU Member States: the Netherlands, France and Germany. Of principal interest is the interaction of the EU substantive interventions into the private law dimensions of financial product development – such as contracting and corporate governance – and the remedial emphasis of the legislative package on public law sanctioning. To study their current practices, we conducted interviews with officials of the three national authorities, focusing on their supervisory approach, as well as the ways in which they currently intervene either formally or informally into the private law aspects of financial product development, oversight and distribution. While we find persistent divergences in the supervisory approaches of the authorities, as well as the regulatory paradigms that inform those approaches, three important aspects are worth highlighting. First, the authorities that probe more deeply into the product manufacturing processes do not necessarily do so with the intention of limiting the parties’ contractual freedom, but also to help them evaluate their interests more deliberately. Secondly, all authorities have already developed techniques for probing into the contracting and corporate governance aspects of financial institutions, often through informal interventions that do not involve infringement findings and sanctioning, even if they use different ways to formalize, publicise and learn from such interventions. Finally, our findings suggest some doubt about the appropriateness of the remedial aspects of the enacted EU package on investment services, as well as a failure to more fully incorporate the customer perspective in the investor protection activities of supervisory authorities.