Einde inhoudsopgave
Cross-border Enforcement of Listed Companies' Duties to Inform (IVOR nr. 87) 2012/3.7.5
3.7.5 European perspective towards causation requirement
mr.drs. T.M.C. Arons, datum 07-05-2012
- Datum
07-05-2012
- Auteur
mr.drs. T.M.C. Arons
- JCDI
JCDI:ADS365992:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
World Online judgment, para. 4.11.1: 'The problems with respect to the burden of proof with respect to the condicio sine qua non-connection could render the investor protection purpose of the (old and new) prospectus directives (Directive 84/450/EEC and Directive 2003/71/ EC) illusory. One has to take notice that the Directive (2003/71/EC) does in fact not harmonise the issuer's liability for misleading information in the prospectus, however, the new prospectus directive imposes a duty on the Member States to ensure that their national legal provisions on civil liability apply to those persons responsible for the information given in a prospectus. (art. 6(2) of Directive 2003/71/EC). This duty encompasses the obligation that effective legal protection must be given (to the investors) in accordance with the national law.' Para. 4.11.2: 'With regard to that effective legal protection and taking into account the purpose of the prospectus rules to protect (potential) investors from misleading information in the prospectus, the condicio sine qua non-connection shall in principle be deemed to exist. This means that in principle we have to assume that, in case there would have been no misleading information, the investor would not — or in case of a secondary market purchase: not on the same terms — have purchased the securities.'
Craig/de Bárca (2011a), pp. 222-223; pp. 229-231; Craig/de Bárca (2011b), p. 424-426 and Asser/Hartkamp 3-1 (2011), Nos. 109-130; No. 164; Nos. 181-184; Chalmers/Davies/Monti (2010), pp. 276-277; pp. 283-285; Dougan (2011), pp. 424-426; Tridimas (2011), footnote 58 on p. 794.
Cf. arts 11 and 12 UCPD.
Craig and De Burca (2011a), pp. 231-241; Chalmers, Davies and Monti (2010), p. 294-300 (indirect effect of directives).
Cf. Asser/Hartkamp/Sieburgh 6-1V (2011), No. 17.
Arts 11 UCPD.
Craig and De Burca (2008), p. 321; Asser/Hartkamp/Sieburgh 6-IV(2011), No. 17.
When considering the hurdle of causation1 in a prospectus liability claim, the court has to bear in mind that the European Union legal system upheld by the European Court of Justice requires that national remedies must secure the effectiveness of rights awarded to private parties by European legislation.2 Particularly in the context of directives whose provisions expressly require the availability of adequate judicial remedies.3 Even though the European Court of Justice continues to highlight the importance of national procedural responsibility and autonomy, its case law shows that in certain cases the scope of this national autonomy can be restricted, if the Directive requires an effective judicial remedy.4
Despite the fact that in case of a prospectus liability claim the causation requirement will probably not be regarded as undermining the Unfair Commercial Practices Directive, the national court has, however, to take into account the principle that European legislation must be given its due effect when the court applies the (national) procedural rules and rules of evidence with respect to causation.5 After all, the Unfair Commercial Practices Directive demands adequate and effective means to combat unfair commercial practices in order to enforce compliance with the provisions of the directive in the interest of consumers.6 Even though the requirements imposed by the European Union legal system on the availability of national remedies may depend on the nature of the right at stake and on the kind of community measure which has been breached, the upper limit of national autonomy is reached when the exercise of the rights conferred upon consumers by the Unfair Commercial Practices Directive is made excessively difficult.7