European Supervisory Authorities - Legality and judicial control of their activity

On 4 December 2019, the French Conseil d'Etat, at the request of the French Banking Federation, referred important questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling regarding the legality of the activities of the European supervisory authorities for the financial services sector (ESAs) (see Annex 1 here).

The CJEU has been asked to rule on the extent to which the European Banking Authority was competent to adopt a guideline on retail product governance.

Even if the matter only concerns directly the European Banking Authority and relates only to one given position, the CJEU's ruling will apply to all three ESAs, including therefore the European Securities and Markets Authority (ESMA) and the European Insurance and Occupational Pensions Authority (EIOPA). It is likely to be relevant to all acts adopted by ESAs of so-called “level III” authority, i.e. recommendations, guidelines, "mere" opinions, but also atypical acts in Q&A form. 

The CJEU will have to consider in advance how a request for a review of the legality of the acts of ESAs may be referred to it. Can these acts give rise to actions for annulment before the General Court of the European Union and on whose initiative may this be undertaken (banking, financial and insurance operators or their professional associations)? If the answer is in the affirmative, can they nevertheless also be referred for a preliminary ruling on validity by the national courts to the CJEU?

This case may mark the beginning of the end of the tendency of ESAs to arguably exceed their powers – to which attention has already been drawn, see Annex 2 here). In this regard, it is worthwhile recalling ESMA's opinion on share classes in the field of investment funds.

The mere existence of this reference for a preliminary ruling on validity should, even before the CJEU's judgment is rendered, incite the ESAs to pay more attention to applicable rules stemming from European Union law. At the very least, it should encourage them to be more careful as regards objections under European Union law linked to the limits of their powers which banking, financial and insurance operators and their professional associations may raise.

We will keep you informed of developments in this case, which falls within the broader context of the increasing judicial review of the acts of European monetary, banking and financial authorities, as evidenced by recent case law vis-à-vis the European Central Bank and the Single Resolution Council.

Zie ook : Arendt ( Mr. Philippe-Emmanuel Partsch )

[+ http://www.arendt.com]

Mr. Philippe-Emmanuel Partsch Mr. Philippe-Emmanuel Partsch
[email protected]

Click here to see the ad(s)
Alle artikels Bank -en Krediet recht

Laatste artikels Bank -en Krediet recht

Comparability of Investment Funds – another Finnish referral to the Court of Justice of the Eur...

Recently, an Advocate General’s opinion (the “Opinion”) on Finnish CJEU case C-342/20 (the “Case&r...

Comparability of Investment Funds – another Finnish referral to the Court of Justice of the European Union – another positive signal Read more

New rules on material IT outsourcing in the financial sector

Effective 15 October 2021, financial institutions must notify the CSSF of any planned outsourcing of material IT activitie...

Read more

Payments services and e-money | New delegated regulation

On 28 September 2021, the Commission Delegated Regulation (EU) 2021/1722 of 18 June 2021 (the “Regulation”), s...

Payments services and e-money | New delegated regulation Read more

Performance fees: the CSSF digitalises data collection

Investment fund managers must report to the CSSF on the performance fee models used by all Luxembourg UCITS and AIFs that ...

Performance fees: the CSSF digitalises data collection Read more

Laatste artikels van Mr. Philippe-Emmanuel Partsch

Luxembourg Competition Council willing to review and refer M&A transactions to the European Commi...

On 29 April 2021, following the release of the widely commented European Commission guidance on Art. 22 of the EU Mer...

Read more

Luxembourg Competition Council imposes highest ever fine for resale price maintenance agreements

Luxembourg Competition Council imposes highest ever fine on Bahlsen and supermarket chains Cactus, Auchan and Delhaize for...

Read more

Brexit will happen tonight. What next?

At midnight tonight Luxembourg time, the United Kingdom will leave the European Union. For business in the EU and the UK, ...

Read more

Towards a single European market on private pensions - the Pan-European Personal Pension Product

Saving for retirement will soon be facilitated by a personal pension product with truly pan- European characteristics. On ...

Read more

LexGO Network