To be or not to be (legally binding)? Judicial review of EU soft law after BT and Fédération Bancaire Française

Abstract

EU soft law is like a mythological creature of the EU governance: like a satyr is half man and half goat, so EU soft law is half law, half non-law. Its twofold nature unrestrained by legislative procedure has facilitated its proliferation, but controversy continues arising concerning its role in the EU and in the Member States. Two recent cases add to the saga on the effects of EU soft law: BT v. Balgarska Narodna Banka and Fédération bancaire française v. Autorité de contrôle prudentiel et de résolution. These two judgments, being the fruit of two preliminary ruling requests, are to a certain extent extraordinary: the Court of Justice of the European Union has for the first time considered the validity of EU recommendations and guidelines, EU soft law measures par excellence, in the context of preliminary ruling requests. But beside their outcomes, these decisions have also casted shadows on the effects of EU soft law. After illustrating the opinions of the Advocates General and the judgments of the Court of Justice, the paper moves on to tackle three issues: the loopholes in the concept of ‘legally binding effects’ under EU law, the (unclear) guidance on the use of EU soft law in national courts, and the evolution of validity review of EU soft law. To be or not to be (legally binding?) That is the question for EU soft law.