- Ferretti F., Editorial Introduction: Consumers in the Digital Single Market, European Business Law Review, Volume 33, Issue 4 (2022) pp. 477 – 484.

- Ferretti F., A Single European Data Space and Data Act for the Digital Single Market: on Datafication and the Viability of a PSD2-like Access Regime for the Platform Economy, «EUROPEAN JOURNAL OF LEGAL STUDIES», 2022, 14, pp. 173 - 218

In its new digital strategy for Europe, the EU highlights the need for better data-access and sharing. In line with this priority, it is working on a proposal for a Data Act that aims to provide the underlying legal framework. This paper seeks to disentangle key legal concepts and issues related to datafication that affect the envisaged European Data Space. It reveals that the EU has already a suited regulatory model provided by the Payment Services Directive 2 (‘PSD2’). It focuses on the market imbalances of the platform economy and challenges the legitimacy of large technological companies (‘Big-Techs’). These act as gatekeepers to maintain a key role in data-access and monetise their data dominance. The existence of a data market itself is cast into question; instead, it is suggested that the EU already has a viable legislative model provided by the sectoral legislation of the (‘PSD2’). Its data-access model could be applied horizontally across data-driven markets and the platform economy without engineering new rules or adding regulatory layers.

- Ferretti F., Open Banking: Gordian legal knots in the uncomfortable cohabitation between the PSD2 and the GDPR, «EUROPEAN REVIEW OF PRIVATE LAW», 2022, 30, pp. 73 - 101

ABSTRACT: This work analyses problems in the legal framework of Open Banking enabled by the PSD2. It goes through the role of EU law in the regulation of payment services up to their transition towards digitalisation and fintech, to show the scale of the changes brought by the PSD2 in a territory unfamiliar to traditional banking. The resulting conflation between banking and the data economy reveal a brand-new market. The normative intersection between the PSD2 and the GDPR expose not only poor coordination but also a growing entanglement of legal knots. The legal inconsistencies, loopholes, and interpretative difficulties are examined to expose operational risks beyond difficulties of legal technicism. A rethinking, or at least a correction, of the European regime of Open Banking is necessary to reconcile the needs of an emerging market and the protection of its users.
RÉSUMÉ : Cet article analyse les problèmes du cadre juridique de l'Open Banking permis par la PSD2. Il passe par le rôle du droit communautaire dans la régulation des services de paiement jusqu'à leur transition vers la digitalisation et la fintech, pour montrer l'ampleur des changements apportés par la PSD2 dans un territoire peu familier à la banque traditionnelle. L'amalgame qui en résulte entre la banque et l'économie des données révèle un tout nouveau marché. L'intersection normative entre la PSD2 et le RGPD expose non seulement une mauvaise coordination, mais aussi un enchevêtrement croissant de nœuds juridiques. Les incohérences juridiques, les lacunes et les difficultés d'interprétation sont examinées pour exposer les risques opérationnels au-delà des difficultés de technicité juridique. Repenser, ou du moins corriger, le régime européen d'Open Banking est nécessaire pour concilier les besoins d'un marché émergent et la protection de ses utilisateurs.
ZUSAMMENFASSUNG: Diese Arbeit analysiert die Probleme im rechtlichen Rahmen des Open Banking, das durch die PSD 2 ermöglicht wurde. Sie erläutert die Rolle des EU-Rechts bei der Regulierung von Zahlungsdiensten bis hin zu ihrem Übergang in Richtung Digitalisierung und Fintech, und zeigt das Ausmaß der Veränderungen auf, welche die PSD2 in einem - dem traditionellen Bankwesen unbekannten - Gebiet mit sich gebracht hat. Die daraus resultierende Verschmelzung von Bankdienstleistungen und Datenökonomie eröffnet einen völlig neuen Markt. Die normative Überschneidung zwischen der PSD 2 und der DSGVO offenbart nicht nur die mangelnde Abstimmung zwischen diesen Materien, sondern auch eine wachsende Verstrickung rechtlicher Knoten. Die normativen Inkonsistenzen, Rechtslücken und Auslegungsschwierigkeiten werden untersucht, um operative Risiken jenseits der rechtstechnischen Schwierigkeiten aufzudecken. Ein Umdenken oder zumindest eine Korrektur der europäischen Regelung des Open Banking ist notwendig, um die Bedürfnisse eines Schwellenmarktes mit dem Schutz seiner Nutzer in Einklang zu bringen.

- Ferretti F., L’open banking e le troppe zone grigie del conflitto tra la legislazione europea sui pagamenti e la tutela dei dati personali,, Rivista di diritto pubblico italiano, comparato, europeo, 7 April 2021

 - Ferretti F., Peer-to-Peer Lending and EU Credit Laws: A Creditworthiness Assessment, Credit-Risk Analysis or … Neither of the Two?, German Law Journal. Link

 - Borghi M., Exceptions as users’ rights in EU copyright law, paper.

- Kosta E., Algorithmic state surveillance: Challenging the notion of agency in human rights, in Regulation & Governance, 2020, DOI: 10.1111/rego.12331.

- Alvisi M., Carbonara E., (2020) “Cocktails Done Right: Price Competition and Welfare When Substitutes Become Complements”, Journal of Economics. Link

Abstract: In this paper we analyze the effects of the introduction (by either firms or authorities) of a composite good consisting of a fixed proportion of two imperfectly substitutable stand-alone products. First, we find that such a “cocktail” rises the Bertrand equilibrium prices as it introduces a certain degree of complementarity. It also creates incentives to price discriminate and products can be sold at a discount or at a premium (depending on their degree of substitutability) when they are used as part of the composite good. We consider two distinct forms of price discrimination: a traditional one, in which producers set their prices independently of each other and a coordinated one, in which producers cooperate (collude) when setting the price of the composite good. Composite goods might have either a positive or a negative impact on consumer surplus. The sign of the impact depends on the form of price discrimination and consumers tend to be better off if producers coordinate. The impact is also more likely to be positive if “cocktails are done right”, i.e., if their quality is high compared to the quality of the stand-alone products.

 - Cherednychenko O. O., (2019) Rediscovering the Public/Private Divide in EU Private Law, European Law Journal, pp. 1-21. Link

Abstract: This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well‐established categories does matter within it and may lead to better law‐making in the EU more generally. The legal grammar of a particular EU harmonisation measure—which can be more “public” or “private”—may have important implications for the position of private parties at national level, for the CJEU's likely activism in this context, and ultimately for the measure's ability to realise its policy goals. Therefore, instead of ignoring the existing differences between public and private law, EU law should explicitly adopt the public/private law language in its discourse, without, however, introducing any sharp divide between these two areas.

 - Cherednychenko, O. O., Meindertsma, J. M., (2019) Irresponsible Lending in the Post-Crisis Era: Is the EU Consumer Credit Directive Fit for Its Purpose?, Journal of Consumer Policy, 42(4), pp. 483-519. Link

Abstract: More than a decade after the outbreak of the global financial crisis, consumers across the EU have been increasing their level of debt in terms of both volume and value of consumer credit products. Among the reasons for this trend are the low interest rate environment, the novel business practices of lenders aimed at finding new revenue sources, such as fees and charges on loans, and the innovative business models emerging in an increasingly digital marketplace, such as peer-to-peer lending. These developments present new risks to consumers and pose new challenges for regulators in terms of how to address them. This article aims to uncover the problematic aspects of consumer credit provision in the post-crisis lending environment across the EU and to assess to what extent the 2008 Consumer Credit Directive currently in force, which aims to ensure adequate consumer protection against irresponsible lending, is fit for its purpose today. In this context, the article explores the general meaning of “responsible lending” with emphasis on consumer credit, identifies the most imminent irresponsible lending practices in the consumer credit markets, and tentatively analyses their key drivers. It also reveals some important limitations of the Consumer Credit Directive in providing adequate consumer protection against irresponsible lending and offers tentative recommendations for improvement. In the authors’ view, the time now seems ripe for striking a different balance between access to credit and consumer protection in European consumer credit law.

  - Cherednychenko O. O., (2019) EU Financial Regulation, Contract Law and Sustainable Consumer Finance, in E. van Schagen, & S. Weatherill (Eds.), Better Regulation in EU Contract Law: The Fitness Check and the New Deal for Consumers (pp. 61-91). (Studies of the Oxford Institute of European and Comparative Law; Vol. 29). Oxford: Hart Publishing / Bloomsbury Publishing Plc. Link

Abstract: The post-crisis era presents major new challenges for the EU legislator in terms of effectively safeguarding the public and private interests in the realm of consumer finance in an increasingly digital environment. New and innovative ways of addressing tensions and contradictions between the common good and individual preferences of market actors in the retail financial markets are needed in order to be able to close the gap between consumer finance and society. However, at present, the efforts to develop workable solutions are seriously hampered by the existence of another gap – the gap between financial regulation and contract law in the current European policy discourse and legal scholarship. In the context of EU law-making, this gap manifests itself, in particular, in a contradictory policy agenda for the retail financial markets, insufficient attention to contract practice, and a lack of a coherent and effective enforcement strategy. While the effectiveness of EU financial regulation in the prudential and conduct of business domains depends on a broader legal framework that often reaches far beyond its regulatory ambit, the post-crisis legal matrix for consumer finance is developing in a piecemeal fashion without a clear and coherent vision of consumer financial contracts for the current millennium. In order to reduce the gap between financial regulation and contract law in the EU policy discourse, this chapter has suggested to better integrate the ‘contract law’ dimension of consumer finance into the assessment of existing and new regulatory measures in this area on the basis of a novel concept of sustainable consumer financial contracts. Such an approach fits into the EU's Better Regulation agenda and its sustainable development strategy, which provide an opportunity to critically rethink the role of contract law in the current regulatory landscape, both in relation to standard-setting and enforcement.

  - Ferretti F., (2020) Inteligencia artificial, algoritmos y Big Data en los préstamos P2P, in Cuena Casas M. Aspectos Legales de la financiación en masa o crowdfunding, Valencia, Tirant lo Blanch, pp. 399 – 440.

Abstract: In recent years, extraordinary developments in information technologies in a progressive thrust towards digitalisation have started changing many traditional business models. In so doing, they have also started challenging the regulatory frameworks of reference. The retail financial services sector is one where financial technologies powered by sophisticated artificial intelligence and algorithms (‘Fintech’) making innovative uses of a large amount of personal data taken from unrelated sources (‘big data or ‘big data analytics’) are prominently affecting business models and markets. Peer-to-peer (‘P2P’) lending - also known with other names such as social lending or marketplace lending – is one of such new business models engaging in the provision of credit to consumers and/or small entrepreneurs that is differentiating from financing in traditional banking/credit markets. It is a digital model that has experienced rapid growth and is one of the more mature crowdfunding sub-sectors. However, unlike traditional forms of lending to consumers, P2P lending does not find explicit regulation at EU level despite posing not only the same set of problems but new challenges too. Its regulatory framework varies within the EU according to national rules of the Member States. However, not only this is inconsistent with the harmonised norms of EU credit laws for traditional credit provision. It is also at odds with the recent EU efforts to achieve a Capital Markets Union. Within this framework, the goal of the paper is to analyse one of the crucial elements contained in EU credit laws applicable to the provision of credit to consumers, i.e. responsible lending and the assessment of their creditworthiness. It analyses and conceptualises ‘responsible lending’ and ‘the creditworthiness assessment’, expanding the examination to risk-taking in finance and credit-risk analysis in the interest of lenders for the protection of their capital or investment. The underlying question is to what extent P2P lending – availing of Fintech and big data as the key of its business model – falls within the obligations of EU law and to what extent the interests of consumers and investors find protection from identified risks.


- Ferretti F., Bertarini B., (2020) Consumer Credit Advertising in the United Kingdom and Italy: the Shortcomings of the Consumer Credit Directive and Scope for Review, European Business Law Review, 31, pp. 243 – 264.

Abstract. This contribution examines comparatively the national laws of the United Kingdom and Italy transposing the provisions of consumer credit advertising as set by the Consumer Credit Directive on account of its review. The Consumer Credit Directive is a full harmonization measure that aims to create a single market in the area of consumer credit with a high level of consumer protection. At the same time, the provision on consumer credit advertising offers a legal choice to Member States as regards its transposition into domestic law. The United Kingdom and Italy have opted for different legal choices. The ultimate question is the extent to which the Directive achieves its goal of creating an internal market and an adequate standard of consumer protection in advertising credit services to consumers. A comparison of the two jurisdictions suggests otherwise. This is due to a combination of the limited scope of the Consumer Credit Directive, its full harmonisation character, and the transposition of the legal choice explicitly left to Member States by the law. The upcoming review of the Consumer Credit Directive should identify and fix the problem, especially in light of the rapid digitalisation of financial services and the enhanced provision of cross-border credit to consumers, as envisaged by the Action Plan for a Capital Markets Union and the Digital Single Market.

  - Stefanelli M.A., (2019) Regtech e equity crowdfunding. Sperimentazioni nella regolazione giuridica del mercato finanziario digitale, Percorsi Costituzionali, 1, pp. 177-192.

Abstract: The study aims to analyze the impact of new technologies on new financial market instruments and on their regulation. The object of the analysis is specifically the Equity Crowdfunding discipline, an innovative digital instrument for business financing. After an analysis of the digital regulatory innovations experimented in the United Kingdom for the discipline of Equity Crowdfunding, the study examines the recent European Regulation Proposal n.113 of 2018 and the most recent provisions at national level highlighting the critical aspects and envisaging the definition of a more experimental and interactive digital regulation, within a Digital Regulatory Framework for the digital market.