The Joint Board of Appeal as an Accountability Mechanism for the ESAs

This chapter explores the degree to which the Joint Board of Appeal fulfils its potential as a mechanism allowing parties such as investment firms to hold to account the European Supervisory Authorities (ESAs), and notably the European Securities and Markets Authority (ESMA), when they are governed by MiFID II or MiFIR. Before focusing on the potential of the Board of Appeal as an accountability mechanism open to investment firms, the discussion will be contextualized by examining the problematic accountability regime in relation to the EU decentralized agencies in general. This is relevant because the ESAs are part of this larger group of bodies, and because the specific mechanism of the Board of Appeal is not unique to the ESAs, but is, instead, shared with several other decentralized agencies. This more general analysis shows that the emphasis of the EU decentralized agencies' (and the ESAs') accountability regimes are placed on a form of professional accountability, but that, specifically for the ESAs, this only results in a partial accountability, since no accountability relationship is defined for the ESAs’ Boards of Supervisors. This finding underlines the importance of being able to hold the Board of Supervisors accountable before the Joint Board of Appeal, even if the latter is not formally qualified as an accountability forum, in terms of the ESAs regulations.