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<p>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 <i>autonomous concepts</i> 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 criminal justice and intellectual property, its use in the field of banking supervision raises complex questions. This article critically examines the use of the term “<i>autonomous concept”</i> by the CJEU in <i>Berlusconi II</i> (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 article proposes, in its place, a methodology more closely aligned with the Court’s recent case-law on the matter, centred on the application of national transposing provisions and their interpretation in conformity with Union law. The article concludes that the absence of a clear methodology under Article 4(3) SSMR risks undermining the coherence of the Banking Union and may generate similar uncertainty in other hybrid supervisory systems.</p>

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Berlusconi II (Joined Cases C-512/22 P and C-513/22 P), Art. 4(3) SSMR and “autonomous concepts” of EU law

  • 期刊论文

  • 发表日期：

    2026年5月28日

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  • Filippo Annunziata,
  • Thomaz de Arruda

摘要

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 criminal justice and intellectual property, its use in the field of banking supervision raises complex questions. 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 article proposes, in its place, a methodology more closely aligned with the Court’s recent case-law on the matter, centred on the application of national transposing provisions and their interpretation in conformity with Union law. The article concludes that the absence of a clear methodology under Article 4(3) SSMR risks undermining the coherence of the Banking Union and may generate similar uncertainty in other hybrid supervisory systems.