Case Note
| Published date | 01 March 2014 |
| Date | 01 March 2014 |
| DOI | http://doi.org/10.1177/1023263X1402100109 |
| Subject Matter | Case Note |
188 21 MJ 1 (2014)
CASE NOTE
EUROPEAN REGULATORY AGENCIES ADRIFT?
Parliament and Council of the European Union , Judgment of 22Januar y 2014, not yet
reported
R G*
§1. A BRITISH REVOLT?**
On September 12 2013, Advocate General (AG) Jääskinen delivered a much debated Opinion
in Case C-270/12,1 initiated by the UK against the Council and European Parliament
(EP). Jääskinen concluded that Article 28 of Regulation 236/2012 on ‘short selling and
certain asp ects of credit default swaps’ should be annulled becaus e Article114 TFEU was
not an appropriate legal basis for this provision.2 Since then the case has received much
literary attention bec ause the reasoning of the AG seemed to indicate that a t ruly ground-
breaking decision of the CJ EU might be lying in wait. A er a ll, if the Court of Justice of t he
European Union (CJEU) had followed the AG in its Opinion that Ar ticle114 TFEU forms
an inappropriate legal basis for Ar ticle28 decisions, the whole system of European m icro-
prudential superv ision over nancial marke ts could have been endangered.
Before diving deeper into the decision, it is important to realize that the UK voted
against Regu lation 236/2012 in the Council. However, because the short selli ng regulation
was not based on Article352 TFEU and therefore did not requi re unanimity the UK wa s
overruled by a majority of the Member States . To understand the position of t he UK, one
* Rob van Gestel (r.a.j.vanGestel@tilbu rguniversity.edu) is Professor of eory and Methods of
Regulation at Ti lburg University.
** In writing t his case note I was able to bene t from the insights of omas van Golen (Tilburg
University) and Merijn Cha mon (Ghent University). ey have prepared papers for a special issue
on European super visory agencies that w ill appear later this yea r in the Dutch journal for legi slative
studies, Regel Maat, of which I am one of the ed itors.
1 Opinion of Advocate Ge neral Jääsk inen in Case C -270/12 United Kingdom of Great Britain an d Northern
Ireland v. European Parliam ent and Council of the European Union, del ivered on 12September 2013,
not yet reported.
2 is is the case for defau lt clauses, guarant ees, punitive damage s Regulation (EU) No 236/2012 of the
European Parl iament and of the Counci l of 14March 2012 on short selling a nd certain aspe cts of credit
default swaps, [2012] OJ L 86/1.
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