Is there an unwritten rule mandating that we read all Advocate Generals’ Opinions opening with a quote from the Game of Thrones (GoT)? If not, it is high time we adopted one.
‘What is dead may never die’. Opening with this line from the popular show, AG Bobek is alluding to an important EU law question: can the ECJ invalidate a soft law act, i.e. a non-binding EU measure, under the preliminary reference procedure of Article 267 TFEU? If not, can the Court provide (binding) interpretation of such a measure?
In his Opinion in Case C-911/19 FBF v ACPR, published on April 15th, the AG offered his own answers to these thorny questions. In this post, the background to the case will initially be set out. The key legal issues that arise will then be dissected, and the AG’s findings will be critically assessed.
The facts of the case, as presented by the AG and summarised in the Court’s press release, are relatively straightforward. In 2017, the European Banking Authority (‘EBA’) issued Guidelines on product oversight and governance arrangements for retail banking products. Thereafter, the French Autorité de contrôle prudentiel et de résolution (Authority for Prudential Supervision and Resolution) (‘ACPR’) announced in a notice that it complied with those guidelines, thus making them applicable to all financial institutions under its supervision. The Fédération bancaire française (French Banking Federation; ‘FBF’) sought the annulment of that notice before the referring court, claiming that the EBA did not have the power to adopt those guidelines. In other words, French banks are “attacking” the notice of the French supervisory authority by going after its source of inspiration, i.e. the EBA’s guidelines, and claiming that the latter should be annulled as being ultra vires.
Key legal issues
In a nutshell, three main questions arise from an EU law perspective. Firstly, did the EBA, by adopting the disputed guidelines, go beyond the scope of its powers under Regulation No 1093/2010? Secondly, if yes, what should the consequence be? Is the Court able to declare a non-binding measure invalid under the preliminary reference procedure (Art. 267 TFEU), even though it is not able to do so following an action for annulment (Art. 263 TFEU)? Thirdly, and finally, if national law, contrary to EU law, allows for broader access to direct judicial review of soft-law measures (including national acts ‘implementing’ non-binding EU-law acts), is the national court obliged to refer questions regarding the validity of non-binding EU measures like EBA’s Guidelines, or can it simply annul the national implementing measure on its own?Continue reading