Is the Statutory Limitation of Liability of the AFM and DNB Contrary to European Union Law?

Abstract

Section 1:25d of the Dutch Financial Supervision Act (Wft) limits the liability of the Dutch financial supervisors, namely the AFM (the Dutch Authority for the Financial Markets) and DNB (the Dutch central bank), to cases in which the loss or damage is to a significant extent due to intent or gross fault. Does this go further than the ‘sufficiently serious breach’ which is set by EU law as a condition for member state liability? The judgment of the Court of Justice of the European Union (CJEU) currently under consideration has a direct bearing on how this question is answered.