Op-Ed : “The hazards of ESAs guidelines judicial review: direct applicability of the EBA guidelines and the position of the French Conseil d’Etat”  by Daniela Quelhas

Introduction

In 2018, the French Banking Federation (Fédération Bancaire Française, FBF) challenged the validity of EBA guidelines (EBA/GL/2015/18) via a request for a preliminary ruling (FBF v. ACPR, C‑911/19) before the Court of Justice. The Court dismissed the case finding that the guidelines could not be the subject of annulment proceedings, and that the EBA had not overstepped its powers under EU law.

The FBF nonetheless decided to bring another case against the validity of EBA guidelines before the French Council of State, which did not lead to a referral to the Court of Justice. According to the Conseil d’Etat (Council of State) Article 16 of the European Banking Authority (EBA) Regulation lists financial institution