The Financial Services Single Market and the Interface between Community Law and Domestic Law

Abstract

Abstract This chapter examines the interaction between traditional domestic law approaches and Community law in a single market, focusing on the financial services sector. It argues that facilitating the single market means rethinking traditional methods of determining both which Member State's laws apply to cross-border activity and which Member State's institutions have competence to enforce those laws. It is not enough to continue to permit Member States to invoke those traditional principles of private international law and territoriality, and to fall back on the Treaty freedoms or to attempt harmonization, without more, to overcome the impediments to cross-border activity that those traditional methods give rise to. Those traditional methods were developed in the context of independent states, jealously asserting and guarding their autonomy to devise and enforce their own laws. Membership of the EU — and the commitment to a single market — challenges this attitude, as does harmonization which challenges the wisdom of insisting on the cumulative application of Member States' laws that are (in theory) the same.