Provision of financial services, violation of public law conduct of business rules, and private law norm settinga Dutch, German, and European perspective

Legal uncertainty exists with regards to the relationship between a violation of public law conduct of business rules and private law norm setting. In the area of financial services this uncertainty has led to the question whether private law duties of care can deviate from the norms pursuant to financial regulatory law. More specific: can a civil law judge lay upon a financial institution more and/or less far-reaching private law duties of care than pursuant to the applicable financial regulatory law? Does the applicable financial regulatory law, in other words, bind the civil judge or is he free to decide what level of duty of care can be expected from financial institutions in their relationships with (retail) investors? This paper deals with this question from a Dutch, German, and European perspective, the latter provided by the relatively recent decision by the European Court of Justice of the European Union in the case of Genil v. Bankinter, and assesses what lessons could be learned from these perspectives.