Michel Tison

Challenging the prudential supervisor: liability versus (regulatory) immunity

WP 2003-04

Over the last decades, bank failures in different EU-countries have increasingly led to liability claims being directed against supervisory authorities for alleged negligence or improper conduct in the course of exercising prudential supervision over banks. The basic assertion of this paper is that integrated markets within the European Union, and in the near future, also including Central and Eastern European countries, should function under more or less similar rules as regards possible supervisory liability. After having analysed the existing legal regime as regards to supervisory liability in different EU-countries, we examine to which extent supervisory liability, as far as it is related to the European banking directives, could be directly based on EU-law. We argue that requirements set by the European Court of Justice in this respect could be met as far as prudential supervision is based on obligations deriving from the EUbanking directives. In our view, this situation does not create negative effects, as the European case law allows to duly take into account the complexity of prudential supervision and the discretion left to supervisory authorities in performing their functions.