7. The European Banking Authority (EBA) and Its (Significant) Role in the Law-Making Process

See Chapter 4 above, under 4.​3.​1.

EBAR/ESMAR/EIOPAR, Article 2(1), second sentence.

See just below, under 7.1.2.

EBAR/ESMAR/EIOPAR, Article 2(2), points (a)–(f), respectively.

On the content and judicial review of the single rulebook, see details in Van Rijn (2022), pp. 61–312 and 319–328.

See further below, under 7.3.3.

See at: https://​www.​esma.​europa.​eu/​supervision/​supervision. On this aspect, see further Busch and Gortsos (2022), pp. 12–13, with further references. For the role of the ESMA as an ‘important driver in EU supervisory governance’, see Howell (2017); on its role in supervisory convergence, see Moloney (2018), Chapter 4 (II). For a comparative analysis of the enforcement styles of EU agencies, including the ESMA, see Joosen and Zhelyazkova (2022).

On EU agencies, see, by means of mere indication, Chiti (2018).

For a thorough analysis of the Meroni doctrine and the legal limits to “agencification”, see, by means of mere indication, Chamon (2016), p. 134 et seq. On the short selling case and this judgement, see, by means of mere indication, Repasi (2014), Bergström (2015), Gortsos and Lagaria (2020) and Salerno (2022), pp. 109–110.

However, upon the adoption and entry into force of the MiCAR (see Chapter 5 above, under 5.​4.​4), the power will be conferred upon the EBA to directly supervise the issuers of asset-referenced tokens that have been classified as significant, and, in the case of e-money token that has been classified as significant, to be responsible for their issuers’ compliance with specific requirements (Article 98).

The Commission’s proposal of 29 June 2017 (COM/2017/343 final) to place providers of PEPPs under the direct supervision of EIOPA was not adopted by the co-legislators in Regulation (EU) 2019/1238 of 20 June 2019 (discussed in Chapter 5 above, under 5.​2.​2).

As further discussed in Chapter 8 below.

See further below, under 7.2.1.

EBAR/ESMAR/EIOPAR, Article 2(2), point (e).

The other is the Board of Appeal, further discussed below, under 7.​4.​4.

EBAR/ESMAR/EIOPAR, Article 54(1).

Revised Rules of Procedure of 13 July 2022 (JC 2022 30, at: https://​www.​eba.​europa.​eu/​about-us/​legal-framework/​eba-regulation-and-institutional-framework).

EBAR/ESMAR/EIOPAR, Article 55(1)–(4).

Article 56 contains specific provisions on this aspect. On 22 December 2022, the ESAs published the most updated list of financial conglomerates in the EU (at: https://​www.​eba.​europa.​eu/​esas-publish-list-financial-conglomerates-2022).

Ibid., Article 54(2). On the Joint Committee, see further Wymeersch (2012), pp. 288–292.

EBAR, Articles 1(1), 2(1), first sentence and 82, third-sub-paragraph. On the EBA (and in some cases the ESAs in general), see Louis (2010), Gortsos (2011), Tridimas (2011), pp. 801–803, Di Noia and Furlò (2012), Ferran (2012), Wymeersch (2012) and (2014), Moloney (2014), pp. 907–941, Thiele (2014), pp. 494–519, Haar (2015), Chiu (2016), Chiu and Wilson (2019), pp. 291–300, Vuarlot-Dignac and Siracusa (2019) (with emphasis on the ESMA), and in more detail Schemmel (2018) and Enoch (2021). See also the publications in the EBA Staff Paper Series (at: https://​www.​eba.​europa.​eu/​about-us/​staff-papers).

The amendments introduced by this Regulation to the EBAR refer to four aspects: the relationship between the ECB and the EBA; new tasks and powers of the EBA; amendments to its pre-existing tasks and powers; and amendments to the EBA’s governance. See on this Schammo (2014), Wymeersch (2014) and Capiello (2015).

The EIOPAR and the ESMAR were also amended by Articles 2–3 of that Regulation. The EBAR has also been amended by Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property (see Chapter 4 above, under 4.​3.​2), the BRRD and the SRMR, the PSD II, Regulation (EU) 2018/1717 of the co-legislators of 14 November 2018 “amending [the EBAR] as regards the location of the seat of the [EBA]” (OJ L 291, 16 November 2018, pp. 1–2) (see just below), and the IFR. The current consolidated version is available at: https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​CELEX%3A02010R1093-20210626.

It is also noted that on 20 July 2021 the Commission submitted a Proposal for a Regulation of the co-legislators “establishing an Authority for Anti-Money Laundering and Countering the Financing of Terrorism and amending [the ESAs Regulations]” (COM/2021/421 final). As of December 2022, this legislative act had not been adopted; on the progress, see at: https://​finance.​ec.​europa.​eu/​publications/​anti-money-laundering-and-countering-financing-terrorism-legislative-package_​en.

EBAR, Article 7; this was a by-product of the UK’s withdrawal from the EU since the initial seat was in London. The ESMA is also located in Paris (ab initio), while the EIOPA has its seat in Frankfurt.

See just above, under 7.1.1.

EBAR, Article 5(1)–(2); on this aspect, see also below, under7.4.5.

The list of this Article includes, inter alia, the SSMR, CRR, the CRD IV, the DGSD, the PSD II and the FICOD I; the BRRD is not included therein, even though repeated reference is made to it in other Articles.

Regulation (EU) 2015/847 of the co-legislators of 20 May 2015 “on information accompanying transfers of funds (…)”, OJ L 141, 5 June 2015, pp. 1–18.

‘Financial sector operator’ means an entity as referred to in Article 2 of the third AML Directive, which is either a ‘financial institution’ as defined in Article 4(1) EBAR or EIOPAR or a ‘financial market participant’ as defined in Article 4, point (1) ESMAR (EBAR, Article 4, point (1a)). The term ‘financial institution’ is defined in the EBAR (ibid., Article 4, point (1a) as any undertaking that is subject to regulation and supervision pursuant to any of the legislative acts referred to in Article 1(2), including (apparently) credit institutions. This definition is broader than that in Article 4(1), point (26) CRD IV (as already discussed).

For the EBA’s ESG mandate and the changing nature of EU financial regulation, see Colaert (2022).

EBAR, Article 1(4); on Article 258 TFEU, see Schwarze und Wunderlich (2019) and Schima (2019).

Accordingly, Articles 18–19 (on the EBA’s actions in ‘emergency situations’ and its ‘mediation powers’ between competent authorities in cross-border situations, further discussed below) were amended to take into account that the ECB is also a competent authority.

On this aspect, see details in Volume II.

EBAR, Article 1(5), first and second sub-paragraphs. In this respect, the EBA.

The rules governing this organ are laid down in Articles 40–43, 43a and 44; these were extensively amended by Regulation (EU) No 1022/2013 and then by Regulation (EU) 2019/2175.

EBAR, Article 6. As just noted, the Board of Appeal is discussed below, under 7.​4.​4.

NCBs which are not NCAs are not represented in the BoS; cooperation between all NCBs of EU Member States takes place only within the Banking Supervision Committee (BSC) of the ESCB.

Article 13o (1)–(2) of the Rules of Procedure of the ECB clarifies that the ECB representative is appointed (and revoked) by the ECB President on a proposal by the Supervisory Board and that the above-mentioned accompanying representative is nominated by the ECB President.

As Wymeersch (2014), at p. 67, correctly pointed out: “(…) So will the ECB [be] represented on the Board of Supervisors of the EBA, but without a vote, where all national supervisors – including those of non-participating states – still have a vote”.

EBAR, Article 40(6), third sub-paragraph. Decisions on specific matters related to the resolution of credit institutions and investment firms have been delegated by the BoS to the Resolution Committee (ResCo); on this Committee, see Chapter 6 above, under 6.​4.​4.

EBAR, Article 41(1).

See below, under 7.3.2.

This is without prejudice to the role of the Standing Committee on anti-money laundering and countering terrorist financing (‘AMLSC’), which was (newly) established by virtue of Article 9a(7) EBAR to coordinate measures and prepare draft decisions to be taken by the BoS in relation to such matters. This is composed of a Chairperson and high-level representatives of all AML/CFT competent authorities (57 in total). Among them, one competent authority from each Member State is designated as a member with voting rights (27 in total), while the others are Members without voting rights (30 in total). The AMLSC also includes observers from the EIOPA, the ESMA, the SSM Supervisory Board, the Commission, the EEA EFTA countries represented in the BoS and the EFTA Surveillance Authority.

This inquiry may be conducted by the EBA, upon request from one or more competent authorities, the European Parliament, the Council or the Commission, or on its own initiative, into a particular type of financial institution or type of product or type of conduct in order to assess potential threats to the stability of the financial system or to the protection of customers or consumers.

EBAR, Article 41(4) and (5), second sentence.

On the ECB’s relationship with the EBA after the establishment of the SSM in particular with regard to non-participating Member States, see Guarracino (2013) and Schammo (2014).

EBAR, Article 44(1), first-third sub-paragraphs.

Ibid., Article 44(1), fifth sub-paragraph and (3b). On Articles 17–19, see also further below, under 7.3.

Article 75(1)–(2) governs the participation in the EBA’s work of third countries which have concluded agreements with the EU whereby they have adopted and are applying EU law in the areas of the EBA’s competence pursuant to Article 1(2), and the EBA cooperation with these countries. In accordance with Article 75(3), reference to which is made in several EBAR Articles as discussed below, the nature, scope and procedural aspects of the involvement of these countries in the EBA work, relating to financial contributions and to staff and their potential representation, as an observer, on the BoS should be specified in bilateral arrangements.

Ibid., Article 44(4). In discussions not relating to such institutions, he/she may be accompanied by another ECB representative (again not necessarily a person employed by the ECB) with expertise on central banking tasks. According to the review close of Article 81a, the Commission must review and report to the European Parliament, the European Council and the Council on the overall operation of the voting arrangements in Articles 41 and 44, taking into account any experience gained in the application of the EBAR.

The rules governing this body are laid down in Articles 45, 45a, 45b and 46–47.

Ibid., Articles 48(1), second-fourth sub-paragraphs, 48(2), first sub-paragraph and 48(3). Coordination Groups are set up by the Management Board on ‘defined topics’ for which there may be a need to coordinate having regard to specific market developments (ibid., Article 45b (1).

Since Regulation (EU) No 1022/2013 had conferred upon the EBA four new tasks, Wymeersch (2014) correctly remarked (at p. 68) that in order to meet its enhanced tasks the EBA will have to be endowed with additional human and financial resources. This applies a fortiori after the amendments introduced in 2019.

EBAR, Article 1(5), third sub-paragraph. ‘Systemic risk’ is defined in the ESRBR (Article 2, point (c)) to mean a risk of disruption in the financial system with the potential to have serious negative consequences for the internal market and the real economy; all types of financial firms, markets and infrastructure may be potentially systemically important to some degree. On the concept of systemic risk, see also Chapter 1 above, under 1.​2.​5.

EBAR, Article 8(1a). In relation to the integration of ESG factors, see De Smet (2023), pp. 286–290, with extensive further references.

See below, under 7.5. An innovative element, introduced by the 2019 amendment of the EBAR, is the attribution to the EBA of the power to promote convergence of the SREP referred to in Article 97 CRD IV to bring about strong EU supervisory standards (ibid., Article 20a).

See on this Wymeersch (2014), pp. 67–68. As a matter of fact, there are several modules of this supervisory handbook on specific supervisory aspects, as further discussed in the following Chapters, as appropriate. This handbook is different from the ECB’s “Guide to banking supervision”, which is addressed to supervised entities in participating Member States.

In this case as well, there are several modules of the handbook on specific resolution aspects, as also further discussed in the following Chapters, as appropriate.

The ESEP and the EREP for 2023, adopted on 27 October 2022 (EBA/REP/2022/28 and EBA/REP/2022/27, respectively), are available at: https://​www.​eba.​europa.​eu/​eba-sets-examination-programme-priorities-prudential-supervisors-2023 and https://​www.​eba.​europa.​eu/​eba-sets-examination-programme-priorities-resolution-authorities-2023.

On Articles 17–19 (in their initial phrasing), see Wymeersch (2012), pp. 255–271 and (2014), pp. 70–72. It is further noted that, pursuant to Article 17a (1) EBAR, the EBA must have in place dedicated reporting channels for receiving and handling information provided by a natural or legal person reporting on actual or potential breaches, abuse of law or non-application of EU law. Specific safeguards relating to Articles 18–19 and the decision-making procedures in relation to all three Articles (17–19) are laid down in Articles 38–39.

This group was established pursuant to Article 37 to help facilitate consultation with stakeholders in areas relevant to its tasks. It is composed of thirty members representing EU financial institutions, employees’ representatives of EU financial institutions, consumers, users of banking services and representatives of SMEs, and also participated in by four independent top-ranking academics. On its workings, see at: https://​www.​eba.​europa.​eu/​about-us/​organisation/​banking-stakeholder-group. Periodically, the BSG publishes own-initiatives papers on various issues; see, e.g., its recent (24 March 2022) “BSG own-initiative paper on non-bank lending” (BSG 2022 011, at: https://​www.​eba.​europa.​eu/​sites/​default/​documents/​files/​document_​library/​1029857/​EBA%20​BSG%20​OIP%20​on%20​non-bank%20​lending.​pdf).

EBAR, Article 17(2), first subparagraph, as amended by Regulation (EU) No 2019/2175.

EBA/DC/2020/312. This Decision was adopted on the basis of Articles 17 and 41(4) EBAR, repealed a previous one of 23 December 2016 and is in force as amended on 3 December 2021 (EBA/DC/2021/419).

EBA Rules of Procedure, Article 2(4).

These aspects are further governed by Article 32(1) EBAR.

For recent research on stress tests, see Konietschke et al. (2022). For “green” stress tests, see, by means of mere indication, Reinders et al. (2020). See also the EBA Report of 21 May 2021 “Mapping climate risk: Main findings from the EU-wide pilot exercise” (EBA/Rep/2021/11), which aims to map credit institutions’ exposures to climate risk and provide an insight into the green estimation efforts they had carried out (at: https://​www.​eba.​europa.​eu/​eba-publishes-results-eu-wide-pilot-exercise-climate-risk).

EBAR, Article 22(1a).

At: https://​www.​eba.​europa.​eu/​eba-publishes-methodology-and-draft-templates-2023-eu-wide-stress-test.

The EBA stress test will cover fifty-seven of the euro area’s largest credit institutions (with broadly 75% of the euro area’s banking assets). In parallel, the ECB will conduct its own stress test for another forty-two medium-sized credit institutions under its remit.

It is noteworthy that his aspect, governed by Article 21 EBAR, is also referred to in point (b) of Article 8(1), as already noted.

This aspect is governed by Articles 22–24. Article 22(1) in particular provides that the EBA must duly consider systemic risk (as defined in the ESRBR, as just noted above) and address any risk of disruption in financial services that is caused by an impairment of all or parts of the financial system and has the potential to have serious negative consequences for internal market and the real economy. It must consider, as appropriate, the monitoring and assessment of systemic risk as developed by the ESRB and itself and respond to ESRB Warnings and Recommendations in accordance with Article 17 ESRBR.

This aspect is governed by Article 25 EBAR. Inter alia, the EBA may organise and conduct peer reviews of the exchange of information and of the joint activities of the SRB and of non-participating Member States’ NRAs in the resolution of cross-border groups, by developing methods to allow for objective assessment and comparison (ibid., Article 25(1a), inserted by Article 95 SRMR). Related is also Article 27 EBAR on the “European system of bank resolution and funding arrangements”.

In this respect it has the power to develop RTSs and ITSs pursuant to Articles 10–15 EBAR and adopt Guidelines and Recommendations applying to DGSs pursuant to Article 16 (ibid., Article 26(1)–(3)).

Ibid., Article 8(1), point (j); these aspects are governed by Articles 31 and 33, respectively. Furthermore, pursuant to Article 31a, the ESAs must jointly establish a system for the exchange of information relevant to the assessment of the fitness and propriety of holders of qualifying holdings, directors and key function holders of financial market participant by competent authorities.

Ibid., Article 8(2), points (a)–(c); these powers are discussed in detail under 7.5.2–7.5.4.

According to this Article, at least every three years, the EBA must identify up to two priorities of EU-wide relevance reflecting future developments and trends, factoring in contributions received from competent authorities, existing work by EU institutions, as well as ESRB analyses, Warnings and Recommendations.

EBAR, Article 8(2), points (ca) and (da).

See just above, under 7.3.1 when discussing Article 8(1), point (b) on the consistent application of legally binding EU acts.

EBAR, Article 8(2), point (d), with reference to Article 17(3). Before issuing such a Recommendation, the EBA must engage with the competent authority concerned, where it considers such engagement appropriate in order to resolve a breach of Union law, to reach agreement on actions necessary for the competent authority to comply with Union law (ibid., Article 17(2a)). On the actions and inactions of the ESAs in relation to the investigation of breaches of EU law, see Schammo (2018).

This decision shall be binding on the competent authorities concerned and may require them to revoke or amend a decision they have adopted or to make use of the powers which they have under the relevant EU law.

In the author’s opinion, up to end-2022, this was the sole genuine EBA’s supervisory task (albeit indirect), exercised without prejudice to the relevant Commission’s powers under (the above-mentioned) Article 258 TFEU.

EBAR, Article 8(2), point (f), with reference to Articles 17(6), 18(4) and 19(4).

Ibid., Article 8(2), points (h) (with reference to Article 35) and (i)–(j). Pursuant to Article 35(7a), when the EBA requests information directly from relevant financial institutions, holding companies or branches thereof and/or non-regulated operational entities within a financial group or conglomerate that are significant to the financial activities of the relevant financial institutions, and the addressees of such a request do not provide it promptly and without undue delay with clear, accurate and complete information, it must inform the ECB and the NCAs in the Member States concerned, which, subject to national law, must cooperate with the EBA to ensuring full access to the information and verify it.

On this TFEU Article, see, by means of mere indication, Strumpf (2019).

EBAR, Articles 66–67 and 71–72. For more general remarks on the place of EBA in the institutional design, see Ferran (2012) and Payne (2020). Article 73 governs the language arrangements and Article 74 the Headquarters Agreement with the French authorities (at: https://​www.​eba.​europa.​eu/​sites/​default/​documents/​files/​documents/​10180/​2613666/​d6cdbf39-6cef-490f-b057-ce3955194147/​Seating%20​Agreement%20​EBA.​pdf?​retry=​1).

Ibid., Article 1(5), fourth sub-paragraph, first sentence. This is an important element of its overall independence, notably in the context of performing its task of organising and conducting ‘peer reviews’ of NCAs and of its general coordinating role in accordance with Articles 30–31; see Louis (2010), at p. 155.

Ibid., Article 62(1) and recital (59). For this purpose, the EBA is considered a “European body” in accordance with Regulation (EU, Euratom) 2018/1046 of the co-legislators of 18 July 2018 “on the financial rules applicable to the general budget of the Union (…) (OJ L 193, 30 July 2018, pp. 1–222)”; this repealed, with effect from 3 August 2018, Regulation (EU, Euratom) No 966/2012 of the same institutions of 25 October 2012 (OJ L 298, 26 October 2012, pp. 1–96). Articles 62(2)–(4) and 63–65 EBAR contain further rules on the budget’s structure, establishment, implementation and control, as well as on the financial rules applicable to the EBA.

Article 3(1), second sentence clarifies that the ECB is accountable to these EU institutions with regard to the exercise of its supervisory tasks under the SSMR; see also Chapter 8 below, under 8.​4.​2.

On this Article, see the analysis in Schoo (2019a).

See also Article 43(5) EBAR.

This applies notwithstanding Article 70 EBAR on the obligation of professional secrecy (ibid., Article 3(1)–(9)). On Article 75(3), see above, under 7.2.3, on the attendance of meetings.

See above, under 7.2.3 as well.

EBAR/ESMAR/EIOPAR, Article 60(6). Its currently into force Rules of Procedure of 25.02.2020 (BoA 2020 01) are available at: https://​www.​esma.​europa.​eu/​sites/​default/​files/​library/​boa_​rules_​of_​procedure_​2020.​pdf.

See Chapter 9, under 9.​5.

Ibid., Article 58(2)–(4). Article 58(6)–(8) contains procedural and administrative rules. The BoA Secretariat rotates on an annual basis; in 2022, it was managed by the EIOPA, in 2023 it will be managed by the EBA.

Ibid., Articles 58(5) and 59(1), first and second sentences and (6), first sentence. Article 59 contains further provisions relating to the avoidance of conflicts of interest.

Ibid., Articles 60(1). Article 60(2) contains administrative provisions, while Article 60(3) sets out that appeals lodged do not have suspensive effect, unless the BoA considers that circumstances so require.

On the admissibility of Appeals relevant are the judgements of the General Court (Third Chamber) of 9 September 2015 in Case T-660/14, SV Capital OÜ v [EBA] (ECLI:EU:T:2015:608) and of the Court (First Chamber) of 14 December 2016 in Case C-577/15 P, SV Capital OÜ v [EBA] (ECLI:EU:C:2016:947, the ‘SV Capital case’), as well as the Order of the General Court of 10 August 2021 in Case T-760/20, Stasys Jakeliūnas v. ESMA (ECLI:EU:T:2021:512).

EBAR/ESMAR/EIOPAR, Articles 60(4)–(5) and (7).

An inventory of the decisions taken by the BoA (its most recent of July 2022) is available at: https://​www.​eba.​europa.​eu/​about-us/​organisation/​joint-board-of-appeal/​decisions. On the BoA’s work, see Blair (2012), Wymeersch (2012), pp. 292–297, Chiu and Wilson (2019), pp. 304–306, Van Rijn (2022), pp. 313–317, and in detail Lamandini and Ramos Muñoz (2020), pp. 122–124, 128–134 and 145–160 discussing lessons drawn from the first years of experience of its operation, including some of the cases decided by it and the inherent weaknesses in this form of quasi-judicial protection.

EBAR, Articles 60–61. About Article 263 TFEU and the procedure, see, among many others, Craig and de Búrca (2020), Chapters 15 and 16, as well as Lenaerts, Maselis and Gutman (2014), pp. 253–417. On Article 265 TFEU, see Lenaerts, Maselis, and Gutman (2014), pp. 419–440. On the more general question of whether more judicial review is always a positive step forward, see Arnull (2015). Another related (and disputable) question is whether recourse to an administrative review panel (such as the above-mentioned BoA) should be made mandatory prior to initiating judicial proceedings before the Court.

EBAR, Article 69(1), first sentence, which sets up a liability regime replicating Article 340, second sub-paragraph TFEU.

See on this Almhofer (2021), pp. 22–244 (discussed under the perspective of the ECB within the SSM and the SRB within the SRM) and Busch and Gortsos (2022), pp. 32–51, both with extensive further references to the relevant jurisprudence of the Court and to secondary sources. Inter alia, key judgements in this respect are:

EBAR, Article 69(1), second sentence, which sets up a liability regime replicating Article 340, fourth sub-paragraph TFEU. This aspect is further discussed below in relation to the liability of the ECB and NCAs within the SSM (see Chapter 8, under 8.​6.​2) and, in more detail, in relation to the liability of the SRB and NRAs within the SRM (see Chapter 9, under 9.​6.​2).

EBAR, Article 69(2).

On the definition and content of European soft law, see MacCormick (1989) and Trubek et al. (2005). On the content of soft law in international financial law, see Chapter 2 above, under 2.​4.​2.

TFEU, Article 288, second-fifth sentences. See on this Craig and de Búrca (2020), pp. 136–140 and Klamert and Loewenthal (2019).

In principle, Recommendations are adopted by the Council, acting either on a proposal of the Commission in all cases where the Treaties so provide, or unanimously in those areas in which unanimity is required for the adoption of an EU act (TFEU, Article 292, second and third sentences). Recommendations may also be adopted by the Commission and the ECB in the specific cases stipulated in the Treaties (ibid., fourth sentence).

See Craig and de Búrca (2020), pp. 141–142.

Even though initially it did not have any binding legal effect, on 1 December 2009, with the entry into force of the Treaty of Lisbon, the Charter became legally binding on the EU institutions and on national governments, and, according to the Article 6(1), first sub-paragraph TEU, has the same legal value as the EU Treaties. The Charter was initially solemnly proclaimed at the Nice European Council on 7 December 2000 by the European Parliament, the Council, and the Commission (OJ C 364, 18 Decembr 2000, pp. 1–22). It is currently in force (Consolidated version, OJ C 202, 7 June 2016, pp. 389–405) as adapted on 12 December 2007 in the context of the Lisbon Treaty negotiations (OJ C 303, 14 December 2007, pp. 1–17), and is supplemented by the “Explanations relating to the Charter of Fundamental Rights” (OJ C 303, 14 December 2007, pp. 17–35). It is noted that the CJEU, shortly after 2009 when the Charter became binding, declared that “[t]he applicability of [EU] law entails applicability of the fundamental rights guaranteed by the Charter”, demonstrating thus the broad scope of application of this piece of primary law. See the Judgement of the Court (Grand Chamber) of 26 February 2013 in Case C-617/10, Åklagaren v Hans Åkerberg Fransson, ECLI: EU:C:2013:105.

At: https://​ec.​europa.​eu/​justice/​fundamental-rights/​charter/​index_​en.​htm.

See Craig and de Búrca (2020), pp. 142–144.

Ibid., pp. 113–120. On the hierarchy of norms within the EU legal order more generally, see, by means of mere indication, Weatherill (2016), Chapter 4 and Barnard and Peers (2020), Chapter 9.

See Chapter 8 below, under 8.​3.​1.

See Table 4.​1 above.

On Article 289 TFEU in general, see Loewenthal (2019a).

OJ C 202, 7 June 2016, pp. 206–209. On these two principles, see, by means of mere indication, Lienbacher (2019) and Craig and de Búrca (2020), pp. 125–133 and 583–591, respectively.

As already noted in Chapter 6, under 6.​3.​1), the Regulations adopted by virtue of Article 127(6) TFEU are a manifest example. On both these procedures, see Craig (2010), pp. 252–253, Schoo (2019b), pp. 3029–3034 and Craig and de Búrca (2020), pp. 144–145.

On a related matter, and by way of reminder, in accordance with Article 48(7) TEU, which was introduced by the Treaty of Lisbon, where the TFEU provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure. For such a decision to be adopted, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

On this Article, see Nemitz (2019), pp. 256–258.

See further just below, under 7.5.2 and 7.5.3.

This aspect is further discussed below, under 7.5.4.

TFEU, Article 290(3).

On the Comitology procedure, see details in the Excursus below.

TFEU, Article 290(1), second sub-paragraph.

Ibid., Article 290(2), first sub-paragraph, points (a) and (b), respectively. For more details on Article 290, see Craig (2010), pp. 57–64 and 253–254, Schoo (2019b), pp. 3034–3042 and Craig and de Búrca (2020), pp. 145–147.

OJ C 326, 26 November 2012, p. 350.

On the basis of this wording, it is not excluded that a legislative act can empower the Commission to adopt a delegated act without RTSs; see, e.g., Article 2(2) BRRD.

The EBA must submit its draft RTSs to the Commission for adoption and concurrently forward them for information to the co-legislators (EBAR, Article 10(1), first and third sub-paragraphs). Even though in most cases the wording of the legislative acts is that the EBA “shall develop” RTSs, it cannot be excluded that it is merely given the discretion (“may develop”); see, e.g., Article 27(5) BRRD.

Ibid., Article 10(4), first sentence. The Commission must decide whether to adopt or not a draft RTS within three months of its receipt; it may adopt it partly only, or with amendments, where the EU interests so require. In such cases, it must send the draft RTS back to the EBA, explaining why it does not adopt it or the reasons for its amendments and setting a six-week period to the EBA to amend it based on the proposed amendments and resubmit it in the form of a formal opinion to the Commission. If, on the expiry of that period, the EBA has not submitted an amended draft RTS or has submitted a draft that is not amended in a way consistent with the Commission’s proposed amendments, the latter may adopt the RTS with the amendments it considers relevant or reject it. In any case, the Commission may not change the content of a draft RTS prepared by the EBA without prior coordination with it (ibid., Article 10(1), fourth—seventh sub-paragraphs). Articles 10(2)–(3) and 14 contain further specific rules on these aspects.

There provisions are consistent with Article 290(2), first sub-paragraph, points (a) and (b). On Articles 10–14 (as these were initially in force), see Gortsos (2011), pp. 34–35 and Wymeersch (2012), pp. 249–254.

See Articles 462 CRR, 148 CRD IV, 115 BRRD, 93 SRMR and 18 DGSD. The SSMR does not provide for the adoption of delegated acts.

This is consistent with Article 290(2), first sub-paragraph, point (b).

On this Article, see Loewenthal (2019b).

Both these Articles refer to the common EU foreign and security policy.

TFEU, Article 291(4).

Ibid., Article 291(3). On Article 291 TFEU, see Craig (2010), pp. 64–66 and 254–255, Schoo (2019b), pp. 3042–3046 and Craig and de Búrca (2020), pp. 148–152.

EBAR, Article 15(1), first sub-paragraph. The content of the provisions of the following sub-paragraphs is, mutatis mutandis, identical to that of Article 10(1), fourth – seventh sub-paragraphs.

On Article 15 (as initially in force), see Wymeersch (2012), pp. 254–255.

EBAR, Article 16(1). The legislative act may provide that Guidelines should be issued in close cooperation with the ESRB; see, e.g., Article 5(7) BRRD.

On this matter, see the Judgement of the Court (Second Chamber) of 13 December 1989 in Case C-322/88, Salvatore Grimaldi v Fonds des maladies professionnelles (ECLI:EU:C:1989:646, the ‘Grimaldi case’), discussing the effects of Recommendations of EU agencies, and in particular whether those are binding for national courts, which can apply by analogy to all acts of European soft law. See also the 2007 European Parliament’s Report “on institutional and legal implications of the use of ʻsoft lawʼ instruments” (Α6-0259/2007 final, 28 June 2007).

On the compliance of the ECB with EBA Guidelines and Recommendations, see at: https://​www.​bankingsupervisi​on.​europa.​eu/​legalframework/​regulatory/​compliance/​html/​index.​en.​html. On the ‘comply or explain’ principle, which is broadly used in the field of corporate governance codes resulting from self-regulation and also in Recommendations of the Commission, the ECB and/or the EBA, see, by means of mere indication, Bianchi et al. (2010), Andersson (2011), pp. 91–105 and Keay (2012).

The Annual Report (see above, under 7.4.3) must contain information on the Guidelines and Recommendations issued (EBAR, Article 16(4). On ESAs’ Guidelines and Recommendations (as initially in force), see Wymeersch (2012), pp. 276–277.

These Guidelines deal with the establishment of product oversight and governance arrangements for manufacturers and distributors; refer to internal processes, functions and strategies aimed at designing products, bringing them to the market and reviewing them over their life cycle; establish procedures relevant for ensuring the interests, objectives and characteristics of the target market are met; but do not deal with the suitability of products for individual consumers. On product intervention, see Colaert (2019).

ECLI:EU:C:2021:294. It is interesting to note that the Introduction of this Opinion (paragraph 1) includes a quote from Game of Thrones: “As a line from Game of Thrones has it, ‘what is dead may never die’. Thus, perhaps with the exception of White Walkers, what is dead also cannot be killed. However, can something that has never been alive (or rather never came into existence as a binding EU-law act) be annulled (or rather declared invalid) by the Court of Justice on a preliminary ruling? Alternatively, can the Court provide (binding) interpretation of a non-binding EU measure?”. See also Annunziata (2021), p. 2 and Kyriazis (2021).

On the questions which acts are reviewable under Article 263 and which under Article 267 TFEU, see Lenaerts, Maselis and Gutman (2014), pp. 257–274 and 456–468, respectively. These Articles are further discussed below in Chapter 8, under 8.​6.​1 and in Chapter 9, under 9.​6.​1.

ECLI:EU:C:2021:599.

On this quite important (case and) judgement, see, by means of mere indication, Annunziata (2021), Chamon and De Arriba-Sellier (2021) and Busch and Gortsos (2022), pp. 37–38. In this respect it is also noted that, on 22 July 2022, the Conseil d’État rejected by a new decision another challenge of (among others) the FBF to another set of EBA Guidelines, namely those of 29 May 2020 on loan origination and monitoring (EBA/GL/2020/06) and the ACPR’s compliance with them. This decision (no 449898) is available at: https://​www.​conseil-etat.​fr/​fr/​arianeweb/​CE/​decision/​2022-07-22/​449898.

The EBA RTSs, ITSs and Guidelines are available at: https://​eba.​europa.​eu/​regulation-and-policy/​single-rulebook; related Q&As are available at: https://​eba.​europa.​eu/​single-rule-book-qa.

EBAR, Article 16a (1)–(4).

This Section is based (albeit with several differentiations) on Gortsos (2016).

See above, under 7.5.3.

OJ L 55, 28 February 2011, pp. 13–20. On the comitology procedure before the entry into force of the TFEU, see, by means of mere indication, Blumann (1988), Bradley (1992) and Savino (2005). On the comitology procedure post-Lisbon, see, by means of mere indication, Craig (2016).

The effects of Article 5a of that Decision, on the regulatory procedure with scrutiny, were maintained for the purposes of basic acts referring thereto (ibid., Article 12; see also recital (21)). If a basic act adopted before the entry into force of the Regulation provided for the exercise of implementing powers by the Commission in accordance with that Decision, applicable were the rules laid down in Article 13 (for a summary see Table 7.3 below). As a transitional arrangement, the Regulation did not affect pending procedures, in which a Committee had already delivered its opinion in accordance with that Decision (ibid., Article 14).

Regulation (EU) No 182/2011, Article 16.

See Chapter 4 above, under 4.​2.​3.

Regulation (EU) No 182/2011, Article 3(3)–(4), respectively.

Time limits must be proportionate and afford the EBC members early and effective opportunities to examine the draft implementing act and express their views.

According to recital (9), to simplify further the procedures, common procedural rules should apply to the Committees, including the key provisions relating to their functioning and the possibility of delivering an opinion by written procedure.

Ibid., Article 3(5). In any case, the EBC’s opinion must be recorded in the minutes, and its members have the right to ask for their position to be recorded therein. The minutes must be sent by the Chair to the members without delay (ibid., Article 3(6)).

Applicable to the EBC are the principles and conditions on public access to documents and the rules on data protection as applied to the Commission (ibid., Article 9(1)–(2)). Public access to information must be ensured in accordance with Regulation (EC) No 1049/2001 of the co-legislators of 30 May 2001 “regarding public access to European Parliament, Council and Commission documents” (OJ L 145, 31 May 2001, pp. 43–48). This legal act is based on Article 15(3) TFEU, according to which citizens and residents of EU countries have a right of access to documents of the European Parliament, the Council and the Commission.

This includes, inter alia, a list of Committees; the agendas of their meetings and the summary records; the draft implementing acts on which the Committees are asked to deliver an opinion; the voting results; as well as the final draft implementing acts following delivery of the opinion and their adoption by the Commission.

Ibid., Article 10(1)–(2); see also recital (20). The co-legislators have access to this information in accordance with the applicable rules on a regular basis (ibid., recital (17)). In addition,

It also applies to specific implementing acts with a potentially important impact, such as those relating to programmes with substantial budgetary implications, the common agricultural and common fisheries policies, the environment, security and safety (or protection of the health or safety) of humans, animals or plants, the common commercial policy and taxation (ibid., Article 2(2); see also recital (11), first sentence).

See also Article 3 of Protocol No (36) attached to the Treaties “on transitional provisions” (Consolidated version, OJ C 202, 7 June 2016, pp. 322–326).

The votes of Member States’ representatives within the EBC shall be weighted in the manner set out in those Articles (Regulation (EU) No 182/2011, Article 5(1)).

Ibid., Article 5(2). On this, the European Parliament, the Council, and the Commission made the following Statement (attached to the Regulation): “Article 5(2) of the Regulation requires the Commission to adopt a draft implementing act where the committee delivers a positive opinion. This provision does not preclude that Commission may, as is the current practice, in very exceptional cases, take into consideration new circumstances that have arisen after the vote and decide not to adopt a draft implementing act, after having duly informed the committee and the legislator”.

Ibid., Article 5(3); the Appeal Committee is discussed just below.

Ibid., Article 5(4), third sub-paragraph. Derogating provisions from Article 5(4) apply in the case of draft ‘definitive anti-dumping or countervailing measures’ (ibid., Article 5(5)). The above-mentioned Article 7 provides that, by way of derogation from Articles 5(3) and 5(4), second sub-paragraph, the Commission may adopt a draft implementing act if its adoption without delay is necessary to avoid creating either a significant disruption of the markets in the area of agriculture, or a risk for the EU financial interests within the meaning of Article 325(3) TFEU. In this case, the Commission must immediately submit the adopted implementing act to the Appeal Committee; if the latter delivers a negative opinion on the adopted act, the Commission must repeal it immediately; if it delivers a positive opinion or no opinion is delivered, the act remains in force.

Except in duly justified cases, if the Appeal Committee is seized, it must meet at the earliest fourteen days and at the latest six weeks after the referral date. The EBC Opinion must be delivered within two months of that date notwithstanding Article 3(3). To enable Member States and the Commission to ensure an appropriate level of representation the Chair must closely cooperate with the members in setting meeting dates (ibid., Article 3(7)).

The Chair must endeavour to find solutions under the same conditions as those provided in Article 3(4) above for the Chair of the EBC (ibid., Article 6(1)–(2)).

Ibid., Article 6(3). A derogating provision applies for the adoption of ‘definitive multilateral safeguard measures’ (ibid., Article 6(4)).

Ibid., Article 8(1)–(4); see also recital (16). This procedure always applies when the Commission adopts ‘provisional anti-dumping or countervailing measures’ after consulting or, in cases of extreme urgency, after informing the Member States (ibid., Article 8(5)).