The CJEU decision in the FBF case involves many crucial elements of EU law, all of which deserve careful consideration. Among the others, the decision touches upon the nature and the justiciability of soft law measures in the EU legal framework, the ESAs’ power to adopt them, and the relationship between corporate governance and product governance in the financial sector. In this blogpost, we concentrate only on some of these implications. In particular, we look at the general impact of the decision on the non-delegation doctrine, at the uncertainties surrounding the delegation of powers concerning broad matters such as corporate governance in the past and in the future regulatory framework and, finally, at how such uncertainties should guide the allocation of the power to review soft law measures. We suggest that the system of controls deserves our attention and reconsideration to adjust to the new realities of proliferation of soft, technical but also shared (enforcement) administration in the EU. This blog post is based upon the discussion speeches that the authors delivered in the online discussion organised by JMN EULEN (RENFORCE) in August 2021.
Author: Matteo Gargantini and Miroslava Scholten
Matteo Gargantini is Assistant Professor of European Economic Law at Utrecht University and is a member of the Consultative Working Group (CWG) of ESMA Corporate Finance Standing Committee (CFSC) and of the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE).
Miroslava Scholten is Associate Professor of EU Law Enforcement at Utrecht University, a member the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE) and the co-coordinator of the Jean Monnet Network of EU law enforcement (EULEN).