INFORMATION AND ADVISING REQUIREMENTS IN THE FINANCIAL SERVICES SECTOR:
Principles and Peculiarities in EC Law

In its action plan ‘A More Coherent European Contract Law’, issued in February 2003, the European Commission expressly emphasised the necessity of establishing common principles of and a uniform terminology for European Contract Law by introducing a ‘Common Frame of Reference’ (Communication from the Commission to the European Parliament and the Council, A More Coherent European Contract Law: An Action Plan, 12 February 2003, COM(2003) 68, OJ 2003, C 63/11, No. 59. See on this the European Parliament’s resolution of 2 September 2003 (PE 334.391/31), the Council’s resolution on ‘A More Coherent European Contract Law’ (OJ 2003, C 246/01) as well as the responses to the Commission’s Action Plan, published on the website of the European Commission: http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/ cont_law/stakeholders_en.htm). In the light of this objective, the following contribution attempts to systematically arrange the information and advising requirements of EC law which apply in the financial services sector.

1. Introduction

2. Information requirements

2.1 Reasons for imposing information duties

2.2 Information contents

2.3 The time to provide information

3. The problem of information overload

4. Duties to provide advice

4.1 Legal basis for the activity of financial intermediaries

4.1.1 Investment Services Directive (ISD) 2004/39/EC

4.1.2 Insurance Mediation Directive 2002/92/EC

4.1.3 Proposal for a new Consumer Credit Directive COM (2002) 443

4.2 Professional qualification of financial intermediaries

4.3 Duty to avoid and provide information about conflicts of interests

4.4 The standard of advice: best advice or adequate advice?

4.5 Documenting the advice

4.6 Open questions

4.6.1 The unsolved triangular relationship: financial services provider – financial intermediary – customer

4.6.2 Execution only: Dispensing with information and advice

5. Outlook

Notes