Consumer protection directives and private law enforcement Three choices of Member States that make implementation sub-optimal (especially in the area of financial law)

The implementation of the Mortgage Credit Directive 2014/17/EU shows that when European directives are implemented, the content of EU legislation can be lost in translation in three ways. First, it is up to the Member States to determine whether (and which parts of) a directive will be implemented in public law or private law, with all the associated consequences (including other sanctions and enforcement). Second, it appears that ‘hard’ rules from a directive are also implemented with reference to existing ‘open standards’, such as duties of care, so that the actual rules from the directive are invisible in national law. Third, directives leave it to Member States which ‘effective, proportionate and dissuasive sanctions’ are applied to ensure enforcement of the rules, with all the national (and public and private) differences that this entails. Thus, it may be argued, the Member States’ freedom of choice makes harmonisation imperfect.