The Court of Justice of the European Union (CJEU) has played a pivotal role in promoting legal integration within the EU, often filling interpretive or legislative gaps left by the Union legislature. A central technique employed by the Court in this context has been the construction of so-called autonomous concepts of EU law – legal notions interpreted independently from national legal traditions in order to ensure uniform application across the Union. While this technique has been decisive in areas such as fundamental freedoms, criminal justice, and intellectual property, its use in the field of financial regulation raises complex questions, particularly when the Union legal framework explicitly mandates deference to national rules.

This article critically examines the use of the term “autonomous concept” by the CJEU in Berlusconi II (Joined Cases C-512/22 P and C-513/22 P), concerning the assessment of qualifying holdings in the context of the Single Supervisory Mechanism (SSM). We argue that the Court’s elevation of the notion of “acquisition of qualifying holding” to the status of an “autonomous concept” of EU law is incompatible with Article 4(3) of Regulation No 1024/2013 (SSMR), which explicitly requires the application of national law in the relevant domain. The judgment risks undermining the legal coherence of the Banking Union and sets a problematic precedent for similar systems, such as the one under the European Anti-Money Laundering Authority (AMLA).

Read the entire article here: https://ssrn.com/abstract=5699442 or https://dx.doi.org/10.2139/ssrn.5699442.