2 Utrecht L. Rev. 1 (2006)

handle is hein.journals/utrecht2 and id is 1 raw text is: trech L                   Re
Supervision and supervisory authorities
A few introductory remarks
Sacha Prechal & Marleen van Rijswick*
Ever since the last few decades of the 19th century new supervisory structures and supervisory
bodies have been emerging all over Europe. They mark the introduction of a new type of
governance, a reorientation in ideas about how to steer and organize society. In many areas, there
is a clear shift from a 'command and control' or top-down approach to approaches which leave
more to the self-regulating capacity of society and, in particular, to the market. Partly, the new
type of governance is inspired by the US model of more or less independent agencies to which
certain parts of the state's executive functions have been delegated and which are often entrusted
with supervisory tasks. For another part there is a strong influence of the EU competition and
liberalization policies and the introduction of 'market logic' into areas which were previously
considered as being primarily a matter of state responsibility. It is particularly under this latter
influence that supervision and supervisors' roles are often identified with the supervision of
market players' conduct. This is, however, too narrow an understanding, as supervision obviously
serves to control and, as a rule, to enforce compliance with also other behavioural standards than
those laid down for the proper functioning of the markets. A number of contributions in the
present issue of Utrecht Law Review illustrate this.
While supervision, supervisory failures and liability might be a much older phenomenon, these
new structures and bodies are subject to intense political and academic debate. One of the reasons
for this is, for instance, the fact that they do not easily fit into the existing national constitutional,
administrative or other structures. Another reason seems to be the increasing popularity of
supervisory liability in case 'things go wrong'. It is striking, however, that the debates are often
- though not for entirely incomprehensible reasons - mainly domestically oriented.' It is only
more recently that studies and publications have appeared which look at this area from a
comparative or EU law perspective.2 In our view, this is an important and in many respects a
helpful approach for a number of reasons. Often, certainly when brought back to the basics, the
problems and tensions which various countries are facing have much in common. The EU
influence and sometimes even the EU origin of the supervisory arrangements create an even
stronger degree of commonality. All the Member States have to comply with the requirements
* Sacha Prechal is Professor of European Law and Marleen van Rijswick is Senior Lecturer in Administrative Law, School of Law, Utrecht
University, the Netherlands. Both are members of the editorial board of the Utrecht Law Review (contact: A.Prechal@law.uu.nl;
1 This is at least true for the Netherlands. See, however, also the next note.
2 Cf. R. Caranta, M. Andenas and D. Fairgrieve, Independent Administrative Authorities, British Institute of International and Comparative
Law 2004; T. Zwart and L.Verhey, Agencies in European and Comparative Law, Antwerp/Oxford/New York 2003. As for liability, see for
instance M Tison, 'Do not attack the watchdog! Banking supervisor's liability after Peter Paul', 2005 Common Market Law Review, no. 42,
pp. 639-675, and C. van Dam, Aansprakeljkheid van toezichthouders, WODC/BIICL 2006.

http://Www.utrechtlawreview.orz/ Volume 2, Issue 1 (June) 2006

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