Retail Investors in EU Securities Law: from Caveat Emptor to a High Level of Investor Protection

This article summarises the arrangements in EU law regarding the protection of retail investors in the provision of investment services and their development in the past decades. The features of securities markets have led to move away from relying on the caveat emptor principle to much higher levels of investor protection. The recently introduced MIFID 2 legislation includes intrusive measures like product governance rules, and product intervention powers.

The cross-border nature of EU financial markets adds another complexity to the protection of retail investors and arrangements need to be in place to take sufficiently into account the interests of retail investors located in other jurisdictions. These arrangements are based on various tools available to ESMA to ensure supervisory convergence across the EU. ESMA has conducted various assessments of national supervisory practices which show still wide variation in practices across the EU and an overall modest level of enforcement activity.

Finally, this article briefly reflects on contract law, which also very much affects the level of retail investor protection. Progress in this area has been much less in terms of convergence, with persistent major differences across the EU. One such area of major differences concerns the opportunities for redress in case of retail investor detriment.