This paper examines how judicial dialogue could help reduce existing fragmentation in the private enforcement of EU capital markets regulation and thereby contribute to further market integration. While substantive rules have been harmonised into single rulebooks, Member States retain wide discretion over private enforcement tools, remedies, and their application by civil courts. The paper argues that both vertical dialogue, through the preliminary reference procedure under Article 267 TFEU, and horizontal exchanges between national courts can foster a more coherent private enforcement of EU capital markets regulation. It shows how the quality of references to the CJEU has allowed a significant level of fragmentation to persist, and how better-informed references could help mitigate this. Strengthened horizontal dialogue could complement this by promoting a communautaire pensée: a shared understanding of effective private enforcement. The paper concludes that integrating these judicial dialogue mechanisms into the Savings and Investments Union strategy could advance adjudicative convergence where top-down harmonisation remains, and is likely to remain, out of reach.

Read the entire article here: https://ssrn.com/abstract=5630371 or https://dx.doi.org/10.2139/ssrn.5630371.