The Remains of the Day: EU Financial Agencies, Soft Law and the Relics of Meroni

Abstract

This paper analyzes the Judgement rendered on July 15 2021 by the European Court of Justice in Case 911/19 - Fédération Bancaire Française v. Autorité de contrôle prudentiel et de résolution. The Judgment is of paramount importance: it has, indeed, the potential to affect apparently consolidated beliefs in relation to the scope and nature of EU soft law, the role of the European Supervisory Agencies, their prerogatives, and, ultimately, the remains of the already half-dead Meroni doctrine. The Judgement is equally relevant for the role and functions of the European Central Bank in the context of the Single Supervisory Mechanism. The paper summarizes the background to the case, including the long-standing debate on the nature of EU soft law, and considers the structure of the Judgment and its conclusions, looking at the interpretative method adopted by the Court. It also sets out some proposals in order to explain the apparent contradictions of the decision, and examines the peculiarities of the case in light of the previous jurisprudence of the Court in similar matters. In all its complexities, the FBF Judgment provides a further decisive contribution to the construction and interpretation of EU banking and financial law, together with other major precedents that have recently sparkled the firmament of the Court’s jurisprudence in this field.

Keywords: CJEU, ECB, SSM, European Banking Authority, European Supervisory Agency, ESMA, EIOPA, Meroni, Romano, soft law, Guidelines

JEL Classification: K10, K20