A new ‘small step’ towards the review of soft law EU acts by the EJC
On the 15th of April 2021 Advocate General Bobek Opinion delivered in the case Fédération bancaire française (FBF) v Autorité de contrôle prudentiel et de résolution (ACPR) – C-911/19
In his Opinion delivered on the 12th of December 2017 in the case Belgium v. Commission, Advocate General Bobek already paved the way to answer these questions. In the case, a recommendation of the European Commission was challenged by the Belgian State – represented by our team – in the framework of an action of annulment:
“My suggestion to the Court is essentially twofold: first, on the general level, in view of the changing legislative landscape of (not only) EU law, which is marked by a proliferation of various soft law instruments, access to the EU courts should be adapted in order to respond to those developments. In this sense, and as far as the theoretical pun permits, the approach should indeed become somewhat more Dworkinian, recognising the fact that there are norms generating significant legal effects that find themselves beyond the binary logic of binding/non-binding legal rules.”
Advocate General Bobek proposed to the Court that the action for annulment brought at the time by the Belgian State be declared admissible. However, the Court stated in case C-16/16P that “even though Article 263 TFEU excludes the review, by the Court, of acts which are in the form of recommendations, Article 267 TFEU confers on the Court jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception” and dismissed the appeal. This is somewhat reminiscent of the justification used by the Court for a “comprehensive system of legal remedies established by the Treaties” in the numerous cases concerning the admissibility of an action for annulment to dismiss the action by a natural or legal person.
The relationship between Articles 263 and 267 TFEU
In his very detailed Opinion delivered on the 15th of April 2021, Advocate General Bobek states again that “it is indeed essential to make non-binding acts adopted by EU agencies subject to normal judicial review, at least with regard to their competences, so that those agencies do not unlawfully interfere with the competences of other EU bodies or institutions” and analyses, inter alia, the relationship between Articles 263 and 267 TFEU with regard to non-binding EU law measures.
He explains a number of arguments suggesting that some degree of dissociation between the two types of procedures – action of annulment (Article 263 TFEU) and reference for a preliminary ruling (Article 267 TFEU) on the validity of an EU act – is possible, in particular with regard to non-binding EU law measures :
- contrary to Article 263 TFEU, Article 267 TFEU confers on the Court jurisdiction to give a preliminary ruling on the validity and interpretation of all acts of the institutions of the EU without exception;
- to be coherent with the Court’s case law on the coherence of the system of legal remedies established by the Treaties, the relatively limited access under Article 263 TFEU was supposed to be complemented by very open access under Article 267 TFEU, with the national judges effectively becoming the gatekeepers.
This is why Advocate General Bobek proposes that the Court answers the questions referred by the Conseil d’État (Council of State, France) in the sense that Article 267 TFEU allows for a request for a preliminary ruling to be submitted on the assessment of validity of non-binding EU acts.
A chess game in deadlock
However, according to Advocate general Bobek, “such a dissociation between Articles 263 and 267 TFEU with regard to the review of non-binding EU measures is not without its intellectual challenges” .
He rightly adds that “an act which cannot be challenged by any applicants under Article 263 TFEU [as a result from Belgium v. Commission judgment] suddenly becomes a challengeable act open to everyone under Article 267 TFEU”. Therefore, he compares the conciliation of the judgments Grimaldi, Foto-Frost and Belgium v Commission to “a chess game in deadlock, in which, regardless of the move one decides to play, the result is an inevitable loss of at least one piece”.
At the end of his Opinion, Advocate general Bobek comes to a conclusion that he finds “structurally dissatisfying”:
“as long as there is no effective legal protection against potentially detrimental legal effects of non-binding EU measures under Article 263 TFEU, submitting a request for a preliminary ruling on validity under Article 267 TFEU with regard to those same acts remains the only way in which this Court may ensure that there is at least some resemblance of a complete system of remedies provided for in EU law”.
Thus, after focusing on the coherence of the system of legal remedies established by the Treaties to ensure legal remedies for all type of applicants with regard to the review of validity of EU acts, the Court will now have to find a coherence between the rules applicable to the judicial review of binding and non-binding acts potentially having legal effects.
 Opinion of Advocate General Bobek delivered on 12 December 2017 in case C-16/16P, Kingdom of Belgium v European Commission
 Judgment of 20 February 2018 (Grand Chamber), Kingdom of Belgium v European Commission, C-16/16P, EU:C:2018:79, para. 44
 See for instance the Judgment of 1 April 2004, Commission v Jégo-Quéré (C‑263/02 P, EU:C:2004:210).
 Opinion of Advocate General Bobek delivered on 15 April 2021 in Case C-911/19, Fédération bancaire française (FBF) v Autorité de contrôle prudentiel et de résolution (ACPR), para. 94
 See note 4, para. 134 to 148
 See note 4, para. 141
 See note 4, para. 142
 Judgment of 13 December 1989, Grimaldi, C‑322/88, EU:C:1989:646
 Judgment of 22 October 1987, Foto-Frost, C-314/85, EU:C:1987:452
 See note 4, para. 149
 See note 4, para. 155