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Part IV Supervision and Enforcement, 20 The Private Law Effect of MiFID I and MiFID II: The Genil Case and Beyond

Danny Busch

From: Regulation of the EU Financial Markets: MiFID II and MiFIR

Edited By: Danny Busch, Guido Ferrarini

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 May 2024

Enforcement — Investment business — Regulated activities — Supervision — Contractual set-off

This chapter examines how far civil courts are bound by MiFID I/MiFID II under European law, within the following topics: whether civil courts and contracting parties may be less strict or stricter than MiFID I/MiFID II, whether MiFID I/MiFID II has any influence on the principle of ‘relativity’ or ‘proximity’, proof of causation, or a contractual limitation or exclusion of liability in the Member States; and whether the civil courts are obliged to determine if MiFID I/MiFID II rules have been infringed in disputes between investment firms and private investors. The chapter concludes that MiFID II and MiFID I are unclear, and, as the EU Court of Justice has not yet explicitly answered the main questions, it will be necessary to await the further judgments.

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