Marketing of banking products: the Conseil d'État rules against the FBF

In November 2017, the French Banking Federation (FBF) lodged an appeal with the Conseil d'État against the Autorité de contrôle prudentiel et de résolution (ACPR) concerning certain commercial practices, and more specifically the way in which retail banking products are marketed. The highest administrative court did not rule in its favor.

A case that goes back more than 4 years

In 2017, as part of its transparency policy, the French banking and insurance regulator (ACPR) published several opinions on compliance with two important sets of European Banking Authority (EBA) guidelines on commercial practices in the banking sector. The first concerns the implementation of governance and monitoring procedures for everyday banking products. These consist of a series of procedures to be taken into account in the organization and governance of companies, and aimed at ensuring that products are designed and marketed to meet customer interests, objectives and characteristics. The second concerns compensation policies and practices related to the sale and provision of retail banking products and services.

The first opinion, published by the EBA on March 22, 2016, was widely contested by the banks. A few weeks later, the FBF requested its annulment for " excess of power ". For its part, the ACPR says it complies with the guidance on governance and oversight arrangements for retail banking products issued by the EBA.

Despite the arguments put forward by the ACPR, the FBF challenged the conformity of these guidelines with European Union law. The Conseil d'Etat therefore referred a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether the purpose and content of the guidelines fall within the scope of the EBA's powers.

Commercial practices: an unfavorable decision for the French Banking Federation

On July 15, 2021, theCJEU ruled in favor of the European Banking Authority, finding that " the ACPR had not exceeded its powers by adopting an opinion encouraging financial institutions [...] to significantly modify their practices concerning the governance and supervision of retail banking products ".

The Fédération Bancaire Française reacted by stating that it had " taken note of the decision, which confirms its interest in taking legal action whenever it considers the authorities' 'guidelines' to be contrary to national or European law".

Thus, the Conseil d'Etat did not rule in favor of the banking sector in this case, which had been underway for 4 years and concerned the way in which everyday banking products are marketed. The Conseil d'État's ruling, issued on December 21, 2021 but published ten days later, reinforces the scope of the ACPR's powers.