Standing and judicial review in the new EU financial markets architecture

Abstract

The three European Supervisory Authorities (ESAs) have been entrusted with various tasks relating to the supervision over financial market sectors by competent authorities. These tasks are complemented by legally binding powers vis-a-vis competent authorities. In addition, the ESAs draft standards are to be adopted in the form of directly applicable regulations. This article examines how private undertakings may challenge ESA acts judicially and quasi-judicially. The outcome of the analysis is that Union law may offer ample opportunities for private parties to challenge ESA acts not addressed to them. This may come as a surprise given the traditionally restrictive interpretation of standing in Union law, but can be supported de lege lata even though the question has not yet been ruled upon authoritatively. The article also discusses the question of standing against supervisory decisions of the European Central Bank within the framework of the Single Supervisory Mechanism. The question is placed within the broader context of the EU’s self-imposed standards of rule of law, which require extensive powers of European institutions to be accompanied with sufficient opportunities for judicial review, not only to protect rights of market actors but also to promote the further development and harmonization of substantive EU law.