Tackling liability of financial regulators in Europe

  • Isabel Mousinho de Figueiredo Universidad de Macao, China
DOI: https://doi.org/10.18543/ced.3353
Keywords: Tort Law, financial regulators, liability of public bodies, European Law, German Law of Torts

Abstract

When should financial regulators be liable? German, Austrian and common law protect regulators with immunity, which is hardly sustainable in the 21st century. In EU law, the Kantarev doctrine does not allow legislators to limit civil liability since 2018, not even to cases of wilful misconduct. In 2024 the German Supreme Court BGH shirked having to decide if the immunity enshrined by the legislator in § 4 IV FinDAG complies with EU law. Most European national legal systems refer to general clauses on (public) civil liability. The European Central Bank (ECB) compensates “in accordance with the general principles common to the laws of the Member States” (Art. 340 No. 3 of the TFEU), as do ESMA and SRM (Art. 69 of Regulation (EU) No. 1095/2010). This article suggests discerning paradigms: (1) When a supervisor fails to prevent losses to depositors, liability ought to be minimal. (2) By contrast, when the supervisor is the main perpetrator of collateral damage, liability should be full. I call this paradigm the “danger of power”.

Received: 18 February 2025 
Accepted: 16 June 2025

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Author Biography

Isabel Mousinho de Figueiredo, Universidad de Macao, China

She holds a Law degree, a Master and PhD from the University of Lisbon. Admitted to the bar in Portugal, she is a lawyer with extensive international experience. Assistant Professor in Macau, China, she teaches Private Law and Comparative Law both in the bachelor and the PhD programmes. Coordinator for Academic Cooperation. She is also author of several pieces on Contract Law, Tort and Comparative Law, including a book on liability and Journal articles.

Published
2025-10-30
How to Cite
Figueiredo, Isabel Mousinho de. 2025. “Tackling Liability of Financial Regulators in Europe”. Deusto Journal of European Studies, no. 73 (October), 91-118. https://doi.org/10.18543/ced.3353.
Issue
No. 73 (2025)
Section
Articles

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