The Banking Union translated into (private law) duties : infrastructure and rulebook

Abstract

This article starts out from the general question of how fields of regulation have impacted on the private law relationships between individuals, i.e., in competition law and capital market law. It states that the impact is sometimes more direct, as in capital market law, sometimes less direct and felt only after much more time, like in competition law, but that it is always present. Hence, the first result is obvious: the new Banking Union scheme will impact also on private law relationships. While this is already discussed in some specific areas—namely organisation of banks and recovery and resolution of banks (with the bail-in mechanism)—and while these areas are addressed in this article as well, the question most thoroughly dealt with here is whether such impact will be felt more generally and how it should be shaped. It concerns all bank-client relationships—mostly contract law—, the question of how much influence is welcome, and in which ways it can be channelled. The article provides ample material as to where similar questions have already been discussed in neighbouring fields of law and sees the regulatory package introduced under the term 'Banking Union' as one which will have a considerable amount of private law repercussions.