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C-222/02: Paul v Germany Some observations from a regulator

C-222/02: Paul v Germany Some observations from a regulator. Michelle Ewing General Counsel’s Division, FSA 6 January 2005. Significance of the reference. UK intervention Implications for FSA and FSMA Immunity - Schedule 1, paragraph 19 Balanced package of regulatory protection

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C-222/02: Paul v Germany Some observations from a regulator

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  1. C-222/02: Paul v GermanySome observations from a regulator Michelle Ewing General Counsel’s Division, FSA 6 January 2005

  2. Significance of the reference • UK intervention • Implications for FSA and FSMA • Immunity - Schedule 1, paragraph 19 • Balanced package of regulatory protection • Statutory objectives and risk-based approach • Consideration by ECJpost Three Rivers • Position of others

  3. Reasons for the decision (1) Directives contain no express rule granting rights to depositors (2) Harmonisation is limited and coordination of national rules on liability is not necessary (3) Several Member States exclude liability for defective supervision for policy reasons (4) DGD guarantees minimal protection including in cases of defective supervision

  4. Scope of the decision • DGD/ICD prescribe compensation • How integral is this to the overall finding? • Implications for insurance claims • Should someone not entitled to compensation be in a better position and recover full losses? • Protection in UK

  5. Why this is the right outcome • FOS, FSCS, complaints, bad faith, HRA, JR, prosecution = balance + flexibility • Implications of liability • Create incentive to take defensive decisions favouring those most likely to sue • Overregulation • FSA becomes insurer of last resort • Huge costs for firms (& consumers)

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