Judgment;Information — ECLI:EU:C:2025:369
Date: 2025-05-22
Language of the case: English
Court formation: Ninth Chamber
Subject matter: Economic and monetary policy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Latvia

summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the proceedings before the General Court in accordance with the first paragraph of Article 53 of that statute, and Article 76(d) of the Rules of Procedure of the General Court, must appear in the application (see, to that effect, judgment of 16 March 2023, GABO:mi v Commission, C‑696/21 P, EU:C:2023:217, paragraph 48 and the case-law cited). 86 Second, the General Court held, in essence, in the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809, paragraphs 59 to 61), that the action against the first act becomes devoid of purpose where that act is replaced, with retroactive effect, by an identical act, inasmuch as the interests of the affected parties are fully protected by the possibility of seeking annulment of that identical act adopted following the administrative review procedure in question. That finding made by the General Court cannot in any way be interpreted as implying an option to direct complaints against the initial decision in the case concerning the legality of the identical decision which replaced it. Those findings mean only that the appellant may rely on complaints, concerning the second decision, which, on account of the identical contents of that decision and the initial decision, could have been raised in proceedings seeking the annulment of such an initial decision, had the latter not been replaced. Thus, any errors of law could be rectified entirely in the proceedings concerning that second decision. Moreover, the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), is not the object of the present action. 87 As regards, furthermore, the appellant’s arguments that the approach adopted by the General Court in paragraphs 25 to 29 of the judgment under appeal, consisting in refusing, in the present case, the references made by the appellant to its pleadings in Case T‑247/16 RENV, is inconsistent with the case-law in paragraphs 62 and 63 of the judgment of 14 December 2005, Honeywell v Commission (T‑209/01, EU:T:2005:455), it must be observed that paragraph 62 of that judgment does not show, contrary to what the appellant submits, that references such as that made by the appellant to its pleadings in Case T‑247/16 RENV must be as a general rule accepted in all cases. Nor does the appellant state why such a reference should be accepted in the present case. Consequently, that line of argument must be rejected as unfounded. 88 Lastly, the appellant’s arguments referred to in paragraphs 80 and 81 of the present judgment must be rejected as inadmissible inasmuch as the appellant does not state which paragraphs of the judgment under appeal are challenged by those arguments. 89 Consequently, the second ground of appeal must be rejected as in part inadmissible and in part unfounded. The third ground of appeal Arguments of the parties 90 By its third ground of appeal, the appellant submits that the General Court erroneously rejected its plea alleging infringement of Article 24(7) of the SSM Regulation, by misinterpreting that provision in paragraphs 96 to 114 of the judgment under appeal to the effect that a decision issued following the administrative review procedure has retroactive effect. It claims that there is nothing in the text of that provision or any related provision that supports that interpretation. Specifically, contrary to the General Court’s statement in paragraph 108 of that judgment, such an interpretation is not supported by Article 24(8) of that regulation. In addition, the retroactive withdrawal of credit institutions’ authorisations is irreconcilable with Latvian law and the law of other Member States, in that it would modify the substantive prudential law. 91 In addition, an interpretation of that provision to the effect that the withdrawal of decisions of the ECB has retroactive effect is illegal inasmuch as it is inconsistent with Article 263 TFEU. Such an interpretation would lead to a situation in which acts of the ECB are reviewable under that provision only under certain conditions, namely only as long as they are not replaced with retroactive effect by the ECB following an administrative review procedure. That interpretation would also have the effect that decisions of the ECB would no longer be subject to judicial review inasmuch as, at the time decisions of that institution were adopted following the administrative review procedure, the deadlines for challenging those decisions would already have expired. The retroactive effect of a decision of the ECB cannot be taken into account unless such effect is specified in that decision itself. 92 Furthermore, the appellant argues that the ECB and the Commission have conceded, in other cases, that the decision at issue does not take effect ex tunc. 93 The ECB contends, primarily, that the third ground of appeal should be rejected as inadmissible since, first, it constitutes a new plea in law and, second, in any event, the appellant does not clearly indicate the legal reasoning in support of that ground of appeal. Moreover, the appellant argued before the General Court that the decision at issue had to take effect ex tunc. 94 In the alternative, the ECB contends that that ground of appeal is unfounded. Contrary to what the appellant submits, first, the General Court correctly examined the legality of the decision at issue under Article 24 of the SSM Regulation and held that that decision, the content of which was identical to the first decision, could only replace the first decision with retroactive effect. Second, as regards the appellant’s argument that the retroactive withdrawal of a credit institution’s authorisation would infringe Article 127(6) TFEU because it would constitute a modification of prudential supervisory law, the ECB observes that, in the judgment under appeal, the General Court refers rather to the applicability rationae temporis of an ECB act without amending the applicable legal framework. Third, as regards the appellant’s argument that an interpretation of Article 24(7) of the SSM Regulation which authorises the adoption of a decision withdrawing such an authorisation with retroactive effect infringes the fifth paragraph of Article 263 TFEU, the ECB submits that the retroactive effect of a decision adopted after a review carried out by the ABR does not introduce any additional condition for seeking the annulment of that decision, the need to initiate a second action for annulment to challenge such a decision not being related to its retroactive effect. Fourth, the addressee of a decision adopted following a review carried out by the ABR is not deprived of the right to bring an action against that decision for the sole reason that that decision may produce retroactive effects. Fifth, the appellant wrongly considers that the deadline for bringing an action directed against such a decision starts to run at the date on which that decision produces effects, whereas that deadline actually starts to run from the publication of that decision, or its notification to the applicant or, in the absence thereof, the day on which it came to the knowledge of the latter, in accordance with the sixth paragraph of Article 263 TFEU. 95 The ECB claims, in addition, relying, in particular, on the judgment of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraphs 104 and 105), that, in any event, if the Court of Justice were to find that the General Court’s findings as to the effects rationae temporis of the decision at issue are incorrect, the provision of that decision which concerns those effects is severable from the other elements of that decision and, therefore, the alleged error could not lead to the annulment of the decision at issue in its entirety. 96 The Commission contends that the appellant’s arguments concerning paragraphs 107 and 108 of the judgment under appeal are inadmissible. According to that institution, even though, in paragraphs 104 to 109 of the judgment under appeal, the General Court cited paragraphs 47 to 52 of the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), the present appeal cannot be used to contest directly or indirectly that order, which the appellant did not appeal. 97 Moreover, the appellant’s argument concerning the retroactive withdrawal of the authorisation concerned is unfounded, since it is apparent from paragraph 106 of the judgment under appeal that that withdrawal, effected by the first decision, remained continuously in effect as of the date of notification of that decision. 98 The Commission also submits that the appellant’s argument that the General Court committed an error in holding that the decision at issue produced effects ex tunc, inasmuch as, consequently, the legality of the first decision could no longer be reviewed under Article 263 TFEU, is manifestly inadmissible, since it seeks to challenge the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), against which the appellant did not bring an appeal. In the alternative, the Commission contends that that argument is unfounded, since the first decision was replaced in its entirety by the decision at issue, which was identical in content. The appellant’s interests are therefore still fully protected by the possibility of judicial review of the latter decision. In any event, the General Court correctly relied in the judgment under appeal on the effect ex tunc of the decision at issue, which is apparent from the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), which has become final. Findings of the Court – Admissibility 99 The ECB takes the view, in essence, that the third ground of appeal constitutes a new plea, since before the General Court the appellant claimed that the decision at issue had to take effect ex tunc, whereas in its appeal in the present case it claims that that decision must take effect ex nunc. The Commission, for its part, contends that the appellant’s arguments challenging paragraphs 107 and 108 of the judgment under appeal are inadmissible since, by those arguments, the appellant is in fact seeking to challenge the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), cited by the General Court in those paragraphs. 100 In that regard, it is sufficient to recall that it is settled case-law that a party is entitled to lodge an appeal relying, before the Court of Justice, on pleas arising from the judgment under appeal itself which seek to criticise, in law, its merits (judgment of 19 June 2014, FLS Plast v Commission, C‑243/12 P, EU:C:2014:2006, paragraph 48 and the case-law cited), provided that it raises complaints which do not involve a change to the subject matter of the proceedings before the General Court (judgment of 26 September 2013, France v Commission, C‑115/12 P, EU:C:2013:596, paragraph 74). 101 In the present case, it must be noted that the third ground of appeal, in so far as it seeks, in essence, to challenge the General Court’s assessment that the decision at issue takes effect ex tunc, has its origin in the judgment under appeal itself and must therefore be considered admissible. That cannot be called into question by the fact that the appellant allegedly submitted before the General Court a line of argument different from that relied on in the present ground of appeal. 102 In addition, even if paragraphs 107 and 108 of the judgment under appeal cite the order of 7 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), they concern the General Court’s findings regarding the entry into force of the decision at issue, findings which are challenged specifically in the third ground of the present appeal. The appellant’s complaints concerning those paragraphs therefore seek, contrary to what is contended by the Commission, to challenge the grounds of the judgment under appeal and not to call into question the lawfulness of the first decision, which was the subject matter of the order of 7 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809). 103 It must also be noted that, contrary to what is maintained by the ECB, the appellant clearly presents the legal reasoning supporting that ground of appeal. 104 It follows that the third ground of appeal is admissible. – Substance 105 By its third ground of appeal, the appellant claims, in essence, that nothing in the formulation of Article 24(7) of the SSM Regulation or any related provision bears out the interpretation accepted by the General Court that the decision at issue has a retroactive effect and that, contrary to what was stated by the General Court in paragraph 108 of the judgment under appeal, that interpretation is not confirmed by Article 24(8) of that regulation. 106 The General Court held, in paragraphs 105, 106 and 108 to 110 of the judgment under appeal that, in essence, the decision at issue took effect ex tunc. It found, in paragraph 105 of that judgment, that Article 24(7) of the SSM Regulation establishes an obligation on the part of the ECB to adopt a decision, following the review, which is retroactive to the time at which the initial decision took effect, whatever the outcome of that review. It held, in particular, so far as concerns a decision identical to the initial decision, that such a decision can only take effect ex tunc, since it is not possible to withdraw the same authorisation a second time. In the view of the General Court, that interpretation is necessarily confirmed, inter alia, by Article 24(8) of the SSM Regulation, according to which requests for administrative review pursuant to Article 24 of that regulation are not to have suspensory effect. Thus, the replacement of the initial decision by an identical or amended decision at the end of the administrative review procedure results in the definitive disappearance of the initial decision from the legal order, that decision being replaced with effect as of the date on which the withdrawal of the authorisation was to take effect under the initial decision. 107 In that regard, the Court of Justice has held that, while it is indeed clear from the wording of Article 24(7) of the SSM Regulation that where the ECB finds, following an administrative review procedure, that the decision under review should not be amended, it is to abrogate that decision and replace it with a decision of identical content, it cannot be inferred from the above that abrogating the former decision and replacing it with the latter has retroactive effect comparable to that of the annulment of an act of an EU institution by an EU Court (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 43). 108 As is apparent from the case-law of the Court of Justice, the abrogation of an act of an EU institution does not amount to recognition of its illegality and takes effect ex nunc, unlike a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the EU legal order and is deemed never to have existed. In that regard, the fact that that abrogation was followed by the replacement of the initial act by a new act cannot give the latter retroactive effect (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 44 and the case-law cited). 109 It follows, inter alia, from Article 24(7) of the SSM Regulation that the new decision abrogates the initial decision and replaces it, with identical content. As the Court has already held, since the initial decision had the effect of withdrawing the authorisation of a credit institution, the new decision has the effect of extending the effects of the initial decision, without removing those already produced by it (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 45). The result is that the initial decision is simply abrogated by the new decision, without being retroactively eliminated from the EU legal order. 110 In the present case, it is the first decision which had the effect of withdrawing the authorisation which had been granted to the appellant for access to the activities of a credit institution. In addition, since, in principle, in accordance with Article 24(8) of the SSM Regulation, the request for review of an initial decision does not have suspensory effect, the first decision continued to produce its effects until the decision at issue took effect, namely when it was notified to the appellant. It was therefore only from the point when the appellant was notified that the latter decision abrogated and replaced the first decision (see, by analogy, judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraphs 46 and 47). 111 It follows that the General Court erred in finding, in paragraph 105 of the judgment under appeal, that Article 24(7) of the SSM Regulation establishes an obligation on the part of the ECB to adopt a decision, following the administrative review procedure, which is retroactive to the time at which the initial decision took effect. The findings made by the General Court in paragraphs 106 and 108 to 110 of the judgment under appeal, summarised in paragraph 106 of the present judgment, are also vitiated by an error of law. 112 However, according to settled case-law of the Court of Justice, if the grounds of a decision of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that decision, and a substitution of grounds must be made (judgment of 22 September 2016, Pensa Pharma v EUIPO, C‑442/15 P, EU:C:2016:720, paragraph 51 and the case-law cited). 113 It must be stated that that applies in the present case, since the error of law noted in paragraph 111 of the present judgment had no impact on the operative part of the judgment under appeal. The General Court observed, in paragraph 101 of the judgment under appeal, that the appellant’s argument was based, inter alia, on the incorrect premiss that the ABR had found that the first decision was vitiated by a failure to state reasons. In paragraphs 102 and 103 of that judgment, it stated why, first, that premiss was incorrect and, second, the appellant could not profitably maintain that the decision at issue was vitiated by the same illegalities. Those other grounds have not been validly challenged in the present appeal and are sufficient, in themselves, to warrant the dismissal of the appellant’s application for annulment of the decision at issue. 114 It follows that the third ground of appeal must be rejected as ineffective and, accordingly, the appeal must be dismissed in its entirety. Costs 115 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. 116 Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 117 In the present case, since Trasta Komercbanka has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the ECB, in accordance with the form of order sought by the latter. 118 In addition, Article 140(1) of the Rules of Procedure of the Court, which is also applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. On those grounds, the Court (Ninth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Trasta Komercbanka AS to bear its own costs and to pay those incurred by the European Central Bank (ECB); 3. Orders the European Commission to bear its own costs. Jääskinen Jarukaitis Arabadjiev Delivered in open court in Luxembourg on 22 May 2025. A. Calot Escobar N. Jääskinen Registrar President of the Chamber * Language of the case: English.