INTRODUCTION

The investor lawsuits against VW for failure to disclose inside information cast a spotlight on private enforcement of European capital markets law. European legislation to date has been limited to harmonising and standardising supervisory law. The European legislature introduced only very few provisions that grant investors claims for damages. Private enforcement is still a matter of national laws. Therefore, this chapter will first outline how private enforcement of capital markets law has developed in selected Member States (Section II.). The research question is whether a legal basis for claims for damages exists in the Member States, granting investors the right to sue the issuer if they are not informed as soon as possible and correctly about inside information, such as compliance-relevant matters of an issuer.

Subsequently, perspectives of private enforcement will be discussed. First, it is debatable whether the ECJ could oblige Member States to ensure effective private enforcement (Section III.). After all, the ECJ has already ruled in competition law that the full effectiveness of European law requires that individual actions for damages must be possible. A second perspective could be to harmonise private enforcement throughout the Union. This has already happened in European competition law by a directive requiring Member States to ensure that any third party may seek compensation for its damages. It will therefore be discussed whether harmonisation in European capital markets law makes sense and which concepts of harmonisation should be considered (Section IV.).

The European market abuse law consists of prohibitions on insider dealing and market manipulation. Furthermore, it provides obligations for the disclosure of directors’ dealings and inside information of the issuer to the public. The claims for damages against VW are primarily based on the allegation that VW did not inform capital markets in a timely manner of inside information. This might have violated the ad hoc disclosure obligation (today regulated in article 17 of the MAR). of the MAR). The scope of this chapter is therefore limited to the private enforcement of this obligation. It will not deal with the private enforcement of insider bans and prohibition of market manipulation.