The hard-to-drive tandem of immunity and liability of supervisory authorities: Legal framework and corresponding legal issues

This paper examines the immunity-and-liability tandem of supervisory authorities in Europe. I deliberately chose the word 'tandem' because it includes as an intrinsic element the notion of cooperation; and sound cooperation is what the decentralised and fragmented European supervisory regime calls for. The aim of the present paper is threefold: First, to highlight the theoretical and conceptual legal framework of the discussion, and to conceptually incorporate the notion of financial liability into the concept of 'accountability'. Secondly, to examine the 'hot spectrum' of the residual legal issues under Community law and jurisprudence in this regard, considering - in parallel - the different liability models in the three leading European jurisdictions and drawing some comparative remarks, on the basis of which a 'common ground' standard ('duty of care standard') is suggested. Finally, it is attempted to shed some light on two important yet frequently neglected dimensions of the issue of financial liability, namely the European Court of Human Rights review and the class actions. Quite crucially, the main objective of this paper is not to rigidly concentrate on legal answers regarding financial liability models, tests, and standards, but rather to set both the frame-work and the foundation for the desirable soundness of such answers. Ironically enough, this paper obtains an additional dual - almost prophetic and quite 'educational' - dimension in the light of the current financial crisis. The present work has taken into account the law and literature up to June 2007.