Some reflections on the standard of review in the experience of the ESAs Joint Board of Appeal and of the SRB Appeal Panel Articles uri icon

publication date

  • July 2023

start page

  • 950

end page

  • 970


  • 6


  • 19

International Standard Serial Number (ISSN)

  • 1613-2548

Electronic International Standard Serial Number (EISSN)

  • 1613-2556


  • Pursuant to Article 60 of the ESA Regulations any person, including competent authorities, may appeal against a decision of ESMA, EBA or EIOPA referred to in Article 17, 18 and 19 and any other decision taken by any of these authorities in accordance with the Union acts referred to in Article 1(2). The Board of Appeal (hereinafter "BoA") shall decide upon the appeal. The BoA may confirm the decision taken by the authority or remit the case. In case of remittal, the authority shall be bound by the decision of the BoA and shall adopt an amended decision. The decision of the BoA can be challenged for annulment before the General Court pursuant to Article 61. Almost identical provisions apply to the Appeal Panel (hereinafter "AP") of the SRB, pursuant to Article 85 and 86 SRMR. The AP¿s remit is however confined to the decisions of the Board referred to in Articles 10(10), 11, 12(1), 38 to 41, 65(3) 71 and 90(3) SRMR. Article 85 further specifies that "if the appeal is admissible, the AP shall examine whether it is well founded".
    Knowing who can appeal, what can be appealed, and what are the consequences of the decision upon appeal cannot fully capture the dynamics involved in the review process. "Standard of review" is the term normally used for this purpose, but even this term is often used in a reductionist way, to explain the approach that courts, or administrative bodies, formally use to examine the decisions of administrative agencies and bodies (standard of review in the narrow sense), leaving aside other elements of how the revision is done in practice (standard of review in a broader sense). In this paper we wish to briefly discuss the standard of review adopted so far by both administrative review bodies, trying simultaneously to classify the formal standard of review used (in a narrow sense) but to also show how that standard is deployed in practice, transcending the formal labels (broader sense). We show that:
    (a) First, the BoA and the AP consider themselves not in `functional continuity¿ with their respective authorities¿ decision-making bodies, which means that they do not perform a de novo assessment of the subject-matter of the appealed decision and limit their scrutiny to the manifest error of assessment. This manifest error standard applies when the applicable legal framework grants to the authority straight discretion ("policy discretion", in the taxonomy recently proposed by Advocate General Emiliou in his Opinion in Crédit Lyonnais) but also when the open-texture nature of the relevant rules entails a margin of appreciation in adopting the appealed decision ("technical discretion" due to relatively undetermined legal concepts, in the taxonomy of AG Emiliou).
    (b) Second, despite this formal standard, in their review of the appealed decisions the BoA and the AP closely scrutinize factual and legal errors (substantive legality) as well as the respect of procedural rights, and apply a demanding standard on the duty to state reasons. However, such more demanding standard in practice is deployed only if the errors in fact or law, or the statement of reasons, are contested with the grounds of appeal.
    (c) Third, the BoA and AP strive to be fully in line with settled case-law of the European courts, but this case-law is in the making, also as regards role and standard of review of administrative review bodies. This poses challenges in its own right.


  • Law