Spaventa, E. (2005) 'Case C-442/02, Caixa-Bank France v. Ministère de l’Économie, des Finances et de l’Industrie.', Common market law review., 42 (4). pp. 1151-1168.
Confirming a trend started with the Gebhard judgment, and consistently with its case law on free movement of capital, the Court in Caixa-Bank held that a non-discriminatory rule prohibiting remuneration on sight accounts is an unjustified barrier to the freedom of establishment. Even though the ruling is consistent with the previous broad interpretation given to the free movement provisions, the case is exemplary of the issues arising once a supranational court decides to substitute its own judgment for that of the competent regulator. Thus, in just twenty-four paragraphs and with no market analysis, the Court is satisfied that the rule is a barrier to market access, and that, even though the rule “is indeed suitable for encouraging medium and long-term saving”, it is not justified. No consideration is given to the fact that regulation in a field as complex as the banking sector, where the consumer might be particularly vulnerable, is informed by complex policy choices, and might pursue welfare as well as economic aims. Once more then the Court has decided to substitute its own judgment for that of the national regulator in relation to measures which did not discriminate against foreign undertakings; this time however it is not clear that the Court’s assessment strikes the correct balance between market deregulation and consumer protection.
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|Publisher statement:||Reprinted from (Common market law review, 42 (4), 2005, pp. 1151-1168, with permission of Kluwer Law International.|
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