In its role of supervisory authority in theory the ECB enjoys no limitation of liability, since Recital 61 of Council Regulation No 1024/2013 (the SSM Regulation) refers to the common liability regime provided for under Article 340 of the Treaty on the Functioning of the European Union (TFEU).
This approach is not only unjustified in the light of the 2012 Basel Core Principles for Effective Banking Supervision but it is also inconsistent with the singleness of the SSM. Within the SSM the ECB and the NCAs are vested with the same supervisory powers, allocated according to the criteria laid down under the SSMR (basically the status as significant or less significant of the credit institution concerned). In this regard it is expected that both the ECB and the NCAs will be subject to the same liability regime. Moreover, no limitation of the ECB’s liability can induce the ECB to over-rely on the NCAs enjoying a greater degree of legal protection in their respective jurisdictions, and this, in turn, may de facto distort the allocation of supervisory powers and responsibilities within the SSM.
Against this background, a limitation of the ECB's liability should be inferred from the Member States’ legislations on the legal protections of supervisors or from the case law of the Court of Justice of the European Union and the “sufficiently serious violation” criterion therein.
The ECB's liability is without prejudice to that of the NCAs. The allocation of liability within the SSM basically depends upon the allocation of supervisory tasks and powers. Nevertheless, there are cases where the allocation of tasks and powers to the ECB and the NCAs is not crystal clear, even in the light of ECB Regulation No 468/2014 establishing a framework for cooperation within the SSM (better known as the SSM Framework Regulation).
In other cases, the ECB is still the competent authority, but only the NCAs have the power to act under their relevant national laws. In such cases, where the ECB has the power to give mandatory instructions to the NCAs, responsibility lies with the ECB and not with the NCAs. Nevertheless, consistently with CJEU case law, the liability of the NCAs cannot be excluded where these enjoy a certain margin of manoeuvre.
The ECB shall make good any damage caused to third parties by its staff and the members of its bodies. It is unclear whether the ECB should also be liable for damages caused by other persons acting on its behalf, such as the national members of the Joint Supervisory Teams established and regulated under ECB Regulation No 468/2014 referred to above.
Both the members of the ECB’s bodies and the ECB’s staff enjoy the immunities under Protocol 7 on the privileges and immunities of the EU, annexed to the EU Treaties. Consequently, they are basically not liable towards injured third parties. As a rule, only the ECB is liable. Nevertheless, the members of the ECB's bodies and the ECB’s staff may be held liable towards the ECB. The allocation of liability among the ECB's organs depends upon the allocation of their powers and tasks under the SSMR.
