Judicial review of revocation decisions in the context of European banking supervision

The Single Supervisory Mechanism (SSM), a system centralising banking supervision in Europe, is comprised of the European Central Bank (ECB) and the national competent authorities (NCAs). The paper focuses on a new phenomenon occurring within the SSM, the so-called Top-Down revocations which might require the Court of Justice (Court), while reviewing a decision of the ECB, to also incidentally review a decision of an NCA. The paper first shows that such an incidental review creates a tension between, on the one hand, the principle of legality, thus the Court's obligation to review EU acts and, on the other hand, the principle of EU law autonomy which prohibits situations where EU law depends in its interpretation, validity or application on national law. Second, the paper analyses Court's case law on 'derivative illegality' and argues that the Court's approach adopted there can be carefully applied to Top-Down revocations. Finally, it argues that the Court can review such revocation decisions in three situations: (1) when the review of the revocation decision suffices to determine the unlawfulness of the national measure; and when the lawfulness of the national act can be assessed in the light of (2) EU procedural law; and (3) EU substantive law.