Orchestrating sub-prime consumer protection in retail banking: Abbey National in the context of europeanised private law

Abstract

Abbey National contains a knot of domestic, doctrinal and European legal issues and provides a valuable insight into how the Common law deals with the ‘Europeanization’ of private law. The case concerned the extent of bank charges, in respect of unauthorized overdrafts and challenged by customers because of their perceived unfairness under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR); regulations transposing Directive 93/13/EEC on Unfair Terms in Consumer Contracts. The case thus provides a national orchestration of a Europeanized standard of consumer protection in retail banking. In analysing these issues attention turns to: (1) Abbey National in the context of domestic doctrine and implementation and interpretation of EU law (Part II); (2) the German approach to bank charges as a counterpoint to analysis (Part III); (3) the tenor of European Court of Justice (ECJ) consumer protection case law and its reception in national courts (Part IV). These developments are placed in the context of the Commission’s promotion of the codification agenda and conclusions follow on the sub-prime standard of consumer protection seen in Abbey National, the implications for legal doctrine and concerns on the coherence and integrity of the Europeanized legal order (Part V).