7.9 Concluding remarks

Dutch, French, German and English law require similar conditions to establish prospectus liability: defendant's tortious behaviour, a misleading prospectus, and causation between the prospectus and the investment decision. However, the exact content of these requirements differ considerably. Furthermore, the circle of persons responsible for the prospectus and the rules on the burden of proof are diverging. Dutch and German law provide the claimant a presumption with respect to the element of causation: the investor does not have to give evidence that he actually based his investment decision on the misleading information contained in the prospectus; it is upon the defendant to claim and prove that he did not. If the claimant wishes full compensation for his losses under French law, he has to prove actual reliance on the information. However, if he claims that he sustained his losses as a result of a deprived chance to have made a well-informed decision and thereby from the chance to have invested in a more profitable investment, he will be awarded only the chance of a more successful investment decision. Hence, the investor receives only a percentage of his entire losses. Under English law, the investor does benefit neither from a presumption of law nor from an application of the doctrine of loss of chance; he has to give evidence of actual reliance or factual causation.

To conclude, these significant differences in private law prospectus liability regimes render it more difficult for courts to tule upon common questions/ issues with respect to prospectus liability in (cross-border, EU-wide) collective proceedings because courts may be obliged to apply different regimes.