Two levels, one standard? The multi-level regulation of consumer protection in Europe

In European consumer law, the standard of consumer protection in positive harmonisation through Directives is much more consumer-friendly than in negative harmonisation through free movements law, where trade interests come first. With knock-on effects in national laws, this double-headed standard poses a serious threat to legal certainty.

This paper focuses on consumer financial services and argues in favour of greater systematisation in this area, in order to ensure greater coherence and, through this, legal certainty. This does not mean, however, that a uniform standard should be imposed, for example through maximum harmonisation. Instead, a case will be made for distinguishing between cross-border and purely domestic financial services. They are of a different nature, but may be regulated on the basis of one standard of consumer protection, with the possibility for adjustment where there is justification for it – an approach similar to EU free movements regulation and focussing on what is admissible under the Cassis de Dijon test.