Review of Non-Binding Legal Acts (EBA Guidelines): Paradoxes in Legal Reasoning – Comments on Case C-911/19 Fédération Bancaire Française – (FBF), Judgment of the Court of Justice of the European Union of 15 July 2021

Abstract

In a case that could be the reference judgment for “actes hors nomenclature”, such as guidelines, the Court has adopted a rather ambiguous reasoning. On the one hand, it states that the acts in question do not produce binding effects, which normally leads to the conclusion that there is no judicial review. On the other hand, the Court considers that even if it cannot exercise its control of legality in the context of a direct action, it can do so via the preliminary ruling on validity. The Court places recommendations and guidelines, which as such do not appear in Article 288, on the same level, and rereads its old Grimaldi case law. The judgment, despite its inconsistencies, is nevertheless of major interest. It highlights that the financial sector has been evolving since the sovereign debt crisis and that the case law still does not provide solutions to the specific problems raised. The evolution of financial law clearly calls for a reshaping of the case law instead of a permanent reference to the rules stemming from the case law process. EBA Guidelines, Article 288 TFEU, unclassified acts, AETR doctrine, Court review, Grimaldi case law, Article 74 of CRD/IV, technical criteria