Op-Ed: “Of life, death, resurrection, and legal zombies: Advocate General Bobek’s Opinion in Fédération bancaire française” by Mariolina Eliantonio
|Questi non hanno speranza di morte,|
e la lor cieca vita è tanto bassa,
che ‘nvidïosi son d’ogne altra sorte.
Fama di loro il mondo esser non lassa;
misericordia e giustizia li sdegna:
non ragioniam di lor, ma guarda e passa
|These have no longer any hope of death;|
And this blind life of theirs is so debased,
They envious are of every other fate.
No fame of them the world permits to be;
Misericord and Justice both disdain them.
Let us not speak of them, but look, and pass.
Dante, Inferno, Canto III
Much like Dante’s encounter with the pusillanimous, who are ignored by ‘justice’ because they move through life without making any choice, AG Bobek’s Opinion in Fédération bancaire française v. Autorité de contrôle prudential et de résolution (C-911/19) takes us through a close encounter with one the most debated ‘characters’ of the EU law universe: soft law, measures which formally have no legally binding force. As with the pusillanimous, who have no hope of true death and are forever tormented without even being able to enter the Inferno, Advocate General (AG) Bobek wonders whether soft law also has no hope of death, because it was never ‘truly alive’.
What is alive? What can be killed? What can be resurrected? And what can be dead but still ‘walking’? These existential questions go to the core of the questions raised by the French Council of State, which concerns the reviewability of EU soft law in annulment actions under Article 263 TFEU and preliminary questions of validity under Article 267 TFEU, as well as the relationship between the two actions as emerging by the combined reading of the Grimaldi and Foto-Frost case law.
The case stems from a preliminary question concerning the validity of Guidelines issued by the European Banking Authority (EBA). The claim was brought at the national level by the French Banking Federation against a notice through which the French Prudential Control and Resolution Authority (Autorité de contrôle prudentiel et de resolution) had made a declaration of compliance with the EBA’s Guidelines. Having concluded that, in light of the recent developments at national level, the measure of the French authority – albeit a soft law measure – can be subject to judicial review, the Council of State asked whether the EU soft law in question can be reviewed in an annulment action before the EU courts.
As I have explained also here, in order to justify the need to have an answer to this question, the French court used the ‘ploy’ of the Textilwerke Deggendorf case law, on the basis of which an act which can ‘without any doubt’ be challenged directly in a direct action cannot be subsequently be challenged indirectly through a preliminary question of validity. Considering that it needs to have an answer as to the possibility of directly challenging the EBA Guidelines to make a determination as to whether an indirect challenge is available to the applicant, the Council of State seems to have ‘cornered’ the Court of Justice into giving an answer on the question of the direct judicial review of EU soft law.
- What is dead cannot be killed. Or can it? It depends on the weapon
As is also evident from his earlier Opinion on the Belgium v Commission case, AG Bobek’s Opinion is clearly very well aware of the national context in which the case is to be placed, and clearly indicates this, by dismissing the appearance of a ‘seemingly straightforward’ case. Indeed, while the national court asked what seemed a purely theoretical question (can the EBA Guidelines be challenged in a direct action) and another seemingly obvious question (can the EBA Guidelines be challenged in a preliminary question of validity), the hidden and thorny question is in fact the relationship between Article 263 and 267 TFEU as far as soft law is concerned.
In particular, the point of departure is, on the one hand, the limited availability of direct actions against soft law measures, and, on the other hand, the seemingly broad availability of preliminary questions of validity under the Grimaldi ruling combined with the obligation for national courts to send questions of validity to the Court of Justice when doubting the lawfulness of an EU law provision under the Foto-Frost case law.
AG Bobek departs from the observation that, despite his earlier attempts to change the course of action taken by the Court of Justice, the latter, according to the current case law, is unlikely to consider EBA’s Guidelines as binding and, as a consequence, not find them to be reviewable under Article 263 TFEU. The ensuing question is then whether those same measures could be challenged indirectly under Article 267 TFEU and whether the Textilwerke Deggendorf case law would stand in the way of such indirect challenge.
Starting from the latter point, AG Bobek concludes that the Textilwerke Deggendorf case law ought not to apply to cases such as those at stake, as the test posited in this ruling to bar preliminary questions of validity is whether an action for annulment would have been available to the applicant without doubt. Given the need to assess (i) whether a measure produces binding legal effects, and (ii) whether an applicant has standing to challenge it, the outcome of this assessment is inevitably hardly straightforward.
Next, he concludes that the Foto-Frost obligation for national courts to send preliminary questions when they doubt the validity of EU law does not apply when soft law is at stake. This is, in the eyes of AG Bobek, a story of the Court not being able ‘to have its cake and eat it’. It cannot be, at the same time, posited that soft law cannot be challenged directly because of its alleged incapacity to create legal effects, but it should be subject to preliminary questions of validity. In other words, a soft law measure cannot, at the same time, be dead for the purposes of direct review and alive for the purposes of indirect review.
These two conclusions taken together allow AG Bobek to expose the incoherence and tension between Article 263 and Article 267 TFEU when judicial review of EU soft law is at stake. First, because it entails that the nature of the act determines the availability of direct or indirect review avenues, while this difference is not per se inherent in the remedy (erga omnes annulment in both cases), which the two actions lead to. Second, because admitting that soft law is reviewable indirectly but not directly, ends up putting at a procedural disadvantage those which the Treaty qualifies as privileged applicants. These applicants would indeed paradoxically end up being reliant on non-privileged applicants to bring a claim concerning a soft law measure before a national court and on a national court sending a preliminary question to the Court of Justice. Third, because it overburdens the Court of Justice with cases which, if brought through a direct action, would be heard by the General Court, which has greater expertise and judicial capacity with respect to this kind of action.
Despite this incoherence, AG Bobek comes to the bitter conclusion that, until the Court is ready to change its approach to the admissibility requirements for direct actions against soft law measures, the ‘least worst’ option is to admit preliminary questions of validity against these measures, as the only way to ensure ‘at least some resemblance of a complete system of remedies’.
In his Opinion, AG Bobek shows, firstly, how soft law, far from being dead, is very much alive and kicking, and the impossibility to directly challenge soft law measures in annulment actions is endangering the institutional balance and fostering illegitimate decision-making procedures. Secondly, he powerfully exposes the evidence that, if there is a ‘pusillanimous’ character in this story as in Dante’s Inferno, it is the Court of Justice, and its stubborn refusal to admit direct actions against EU soft law. Future direct actions might offer an opportunity of ‘redemption’ for the Court and a chance at not, once more, ‘look, and pass’.
Mariolina Eliantonio is Professor of European and Comparative Administrative Law at the Maastricht Centre for European Law (Maastricht University). She carries out research on the enforcement of European law before national and European courts. She specifically investigates the concept and implications of the system of shared administration, especially from a judicial protection perspective, and she examines the role of courts in the new modes of governance (such as soft law and co-regulation) and the future of the system of judicial accountability in the European integration process.