Liability of Financial Supervisors and Resolution Authorities: Perspectives from Comparative and European Union Law

Abstract

This article offers a thorough comparative law overview, analysis and discussion of the liability regimes which apply to financial supervisors and resolution authorities at the level of selected individual EU Member States and in major jurisdictions worldwide. There is a growing tendency to limit their liability in one way or another. The extent to which they are protected against liability claims, and the exact shape that this takes, is, however, not uniform across the jurisdictions studied. At the same time, a counter-movement is emerging, as limitations of liability are by no means undisputed and are under attack on various grounds. The large variety of approaches to liability of financial supervisors and resolution authorities is especially a concern within the European Banking Union (EBU). The European Central Bank (ECB) and the Single Resolution Board (SRB) collaborate closely with the National Competent Authorities (NCAs) and the National Resolution Authorities (NRAs) within the framework of the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM), respectively, so liability questions will often be intertwined. Yet, the applicable liability standards often differ, and different courts will have jurisdiction. In the view of the authors it would be preferable to adopt a uniform liability standard for the ECB/SRB and the NCAs/ NRAs. In line with this, the authors would be in favour of including a provision in the SSM Regulation/SRM Regulation to the effect that the Court of Justice of the European Union (CJEU) has exclusive jurisdiction in relation to the liability of both the ECB/SRB and the NCAs/NRAs.