RICERCA ITALIANA     

Technological progress and changes in the law. The accomodation of techniques and models for legal protection of basic rights in the main contemporary legal systems.

Università degli Studi di Roma "La Sapienza"

Abstract

The development of the new technologies and the growing confidence of private individuals in the transactions carried out by technological means, produced its effects both in the area of financial instruments' dealing and services of investment (in which the phenomenon of entering into contracts through the internet is getting widespread) and in the area of the protection of the individual's right to privacy. Beyond requesting urgently a de iure condendo change in the legal course, in order to protect the savers, we would like to deepen the de iure condito choices made by the main contemporary legal systems up to now.
If, on one side, the advent of new methodologies of distant-sale of financial services creates new opportunity for issuing and intermediary investors, on the other side it can favour the rising of new kind of risks. The necessity of a regulation that cares about the necessity of not refraining new development opportunities, contextually guaranteeing the respect of minimal rules for the protection of the investor is, therefore, above all necessary in those international contexts, such as the European Union (EU), in which the principle of harmonization of different legislations is the general rule.
In the European Council of Lisbon, which took place on 23 and 24 of March 2000, has been set the deadline for the achievement of an integrated European market of financial services in 2005, in order to facilitate the access to investment capital and to >>>

Principal Investigator

Diego CORAPI Universita' degli Studi di ROMA

Research Objectives

The main target is to verify the accomodation of techniques and models for legal protection of basic rights in the main contemporary legal systems in the light of the actual technological progress and changes in the law.
The ultimate objective is to identify what legal protection techniques are most suited to ensure protection of the right to privacy in electronic communications, such protection to be informed by the principle of its actual effectiveness.
We would like to verify the possibility for the definition of a sort of code for the consumer-investor protection in long distance contracts, that would systematically regulate the subject (including the special protection for the case where the object of the contract is a financial service). We would also like to understand if this opportunity will be exploited, or if we will witness the umpteenth phenomenon of normative stratification, such to make the whole regulatory structure, as a matter of fact, nearly unsuitable in practice.

First Results

It will be divided into three distinct phases of progressive development, of four months each.
The first phase will assess the European perspective in this field, taking into account the obligation imposed on EU Member States to implement in their national legal orders Directive 2002/65/EC concerning "the distance marketing of consumer financial services" (implementation of the Directive was envisaged by 09.10.2004 by the Community legislator). Our analysis of the European model will be conducted by examining the Italian, French, English, German and Spanish legal systems. The second phase of the research will be devoted to a comparison between the European and the United States' models.
The third and final phase of the research will be dedicated to drawing conclusions from the investigation, with special reference to the need for international coordination in the protection of savings and in protection of the rights of individual investors.
The Padua research programme will be structured in four phases of progressive development, each one of three months. The first phase will investigate the legal instruments that are currently suited to ensuring protection against spam in American law. In this phase the situation pre- and post-Can Spam Act 2003 will be taken into account, with regard also to the relationship between federal law and the law of the single American States. Our aim in this phase is to assess the operational effect of the new federal law >>>

Timescale

12 months

National and international background

The scientific starting point consists of a body of legislation, case-law and academic writing that, in the legal area, dealt with both the effect of the new technologies on the financial markets' functioning and the saving and consumer protection, assuming that the consumers are non-professional people who do invest. Concerning the first issue, the coming of the internet and the continuous progress of the data processing systems facilitated both exchanges at any operative level and immediate capital transfer between individuals belonging to different national legal systems. In addition to this, more investments are made through the internet by entering into "typical" e-contracts.
The state of art both on a national and an international level shows marked differences for what concerns the object of legal protection in this area.
At European level, article 3, paragraph 1-t), ECT, as amended by the Treaties of Maastricht and Amsterdam, explicitly provides "a contribution to the strengthening of consumer protection", with no distinction regarding the content or the object of the goods, products or services. For that purpose the ECT describes the "non professional saver" as the "natural person who acts for scopes not related to the company or professional activity possibly carried out", regarding him/her, in the end, as a financial and products "consumer".
A European legal definition of the consumer-investor may be found in the Directive 97/9/CE, where it >>>