In the opinion of former AFM director Paul Koster, the risk of large scale liability claims impairs the effectiveness of supervision. He has received anonymous support from the financial sector. The discussion on liability is currently topical with a claim from the shareholders of Fortis hanging over the Dutch Central Bank. The court has ruled that an inquiry be conducted into the failure of the acquisition of ABN AMRO. This can form a basis for these shareholders to recover the damage they have suffered from the directors of the Fortis or, on the grounds of failing supervision, from the DNB.
The amount concerned is a collective loss in share price of EUR 50 billion.
Currently, the Dutch government does not rule out the liability of supervisory bodies or limit such liability. The Ministry of Finance refers to the report by Professor Cees van Dam commissioned by the Ministry of Justice almost three years ago, which concluded that the risk of liability of supervisory bodies “is not large”.
The Basel Committee of supervisors, headed by the president of the Dutch Central Bank Nout Wellink, expressed itself years ago in favour of a quasi-immunity that only allows claims against financial supervisory bodies in the event of gross negligence or bad faith. This is the system used in Belgium and the United Kingdom. In Germany full immunity applies. The advisor to the government, Van Dam, believes that liability of supervisory bodies keeps supervisors on their toes. Anonymous experts in the supervisory field note that the claim culture has reached the Netherlands (Het Financieele Dagblad dated 9 December 2008).