Case C-270/12 (UK v Parliament and Council) : stress testing Constitutional resilience of the powers of EU Financial Supervisory Authorities : a critical assessment of the Advocate General's opinion

Abstract

This paper takes a critical look at the conclusions and reasoning of the Opinion of the Advocate General in the case C-270/12 UK v Council and Parliament that, at the time of writing this paper, is pending before the Grand Chamber of the Court of Justice of the European Union. In his Opinion delivered on 12 September 2013, Advocate General Jääskinen found, in agreement with the UK, that the Article 114 TFEU was not an appropriate legal basis for the powers granted to the European Securities Markets Authority under Article 28 of the Regulation 236/2012 on Short Selling and certain aspects of Credit Default Swaps. This paper has three aims: first, to underline the “systemic” importance of the case for the nascent system of EU financial supervision; second, to point out certain neglected dimensions in the Opinion, especially the insufficient attention paid to ex ante (political and procedural) safeguards and the problematic relationship between financial stability and financial integration; and third, to emphasise the need of the Court to find a second-best solution in order to ring-fence the damage that could be caused to the supervisory system in the event the Court were to agree with the Advocate General’s findings.