Opinion of the Advocate General — ECLI:EU:C:2023:935
Date: 2023-11-30
Language of the case: English
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal - successful;Appeal - decision unnecessary
Origin: Malta

summary of those pleas or arguments is incorrect, since the application for annulment which serves as the basis for the claim for compensation contains all those elements. 54 The appellant goes on to argue that, if the General Court had not erred in deciding that there was no longer any need to adjudicate on the application for annulment and if it had acknowledged that there was a connection between the latter and the claim for compensation, it would have found that a number of irregularities had vitiated the procedure for the adoption of the decision at issue, which were sufficient in themselves to form a basis for the claim for compensation. It relies, in that regard, on the lack of genuine representation of Nemea Bank during that procedure, on the failure to state reasons for the decision at issue and on the ECB’s unlawful conduct during the administrative review procedure in respect of that decision by the ABoR. 55 Furthermore, the applicant submits that the conduct of the ECB and, in particular, the withdrawal of the authorisation that had been granted to it to take up the business of a credit institution is the direct cause of the damage which it has suffered, which it claims that it has established. The amount of that damage, which it assesses to be EUR 100 million, does not, however, cover the damage to its reputation, commercial relations and business or lost revenue incurred by Nemea Bank, but rather covered solely the direct loss of value suffered by the bank as a result of the ECB’s conduct. 56 The appellant also claims that, when it criticised the shortcomings of the application at first instance, the General Court failed to take into consideration the fact that they were caused by the fact that the appellant did not have genuine representation or access to evidence, since it was unable to dispose of its resources and did not have access to the ECB’s file. 57 The ECB and the Commission contend that those two grounds should be rejected. Findings of the Court 58 As regards, first, the appellant’s line of argument, summarised in paragraphs 51 to 53 of the present judgment, that, in essence, the General Court deprived it of its rights enshrined in Articles 41 and 47 of the Charter and in Articles 263 and 340 TFEU, by using its decision that there was no need to adjudicate on the application for annulment as a basis for its analysis of the claim for compensation and by failing to take into consideration the connection between that application and that claim, in order to enable the ECB to avoid liability for its allegedly harmful acts, the Court of Justice finds that the General Court cited, in paragraphs 59 to 61 of the order under appeal, the relevant case-law concerning the conditions under which the European Union incurs non-contractual liability and the requirement, arising from the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union – which is applicable to the procedure before the General Court, in accordance with the first paragraph of Article 53 of that statute – that the application contain the subject matter of the proceedings, the pleas in law and arguments relied on and a summary of those pleas in law. It then held, correctly, in paragraph 62 of that order, that the applicants at first instance had not substantiated to the requisite legal standard the conduct of the ECB which they claim gives rise to unlawfulness capable of rendering the European Union liable or the causal link between the alleged damage and the effects which the decision at issue might have produced. 59 It follows that the basis for rejecting the claim for compensation at issue is not the General Court’s decision not to rule on the application for annulment, but the incomplete nature of that claim for compensation. 60 It is clear from the Court’s settled case-law that it is the party seeking to establish the European Union’s non-contractual liability that must adduce conclusive proof as to the existence and extent of the damage it alleges and as to the existence of a sufficiently direct causal nexus between the conduct of the institution concerned and the damage alleged (judgment of 3 May 2018, EUIPO v European Dynamics Luxembourg and Others, C‑376/16 P, EU:C:2018:299, paragraph 92 and the case-law cited). 61 In the present case, it appears that the application at first instance clearly did not meet the requirements laid down in that case-law, since it merely sought an order that the ECB compensate the applicants at first instance in the amount of EUR 10 million, plus interest, in respect of damage allegedly caused by the decision at issue, a sum which, moreover, the appellants increased to EUR 100 million in their reply at first instance. However, no argument had been put forward identifying the causal link between the allegedly unlawful conduct of the ECB and the damage alleged; no submissions were made to establish that that damage actually occurred, and no evidence was adduced in that regard. 62 The General Court therefore did not err in law in holding, in paragraphs 62 and 63 of the order under appeal, that the claim for compensation was manifestly inadmissible on account of its shortcomings. 63 Moreover, the appellant does not explain how the General Court’s decision deprived it of its right to seek compensation for any damage caused by the ECB. In principle, it still has the right to bring a new claim for compensation remedying the shortcomings identified by the General Court in the order under appeal, in the circumstances envisaged in Article 46 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, according to which proceedings against the European Union in matters arising from non-contractual liability are to be barred after a period of five years from the occurrence of the event giving rise thereto, that limitation period having been interrupted, inter alia, by the application brought before the Court of Justice. 64 As regards, second, the appellant’s line of argument, recalled in paragraph 55 of the present judgment, that, in the first place, the ECB’s conduct is the direct cause of Nemea Bank’s loss in value and, in the second place, the amount of EUR 100 million covers only part of the damage suffered by the appellant, the Court of Justice notes that, by that line of argument, the appellant does not rely on any error of law that may have been made by the General Court, but merely reiterates the factual considerations raised in the action at first instance. 65 In accordance with settled case-law, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. It follows that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 11 January 2024, Wizz Air Hungary v Commission, C‑440/22 P, EU:C:2024:26, paragraphs 57 and 58 and the case-law cited). 66 Third, as regards the appellant’s line of argument, recalled in paragraph 56 of the present judgment, that, in criticising the shortcomings of the application at first instance, the General Court failed to take into consideration the fact that they were caused by the appellant not having access to genuine representation and evidence, the Court of Justice recalls that, as is apparent from paragraph 62 of the present judgment, the General Court was fully entitled to find that the claim for compensation was manifestly inadmissible on account of its incomplete nature. It is apparent from the application at first instance that the appellant had not provided any of the evidence required to establish the non-contractual liability of the European Union and had not explained how specifically the alleged lack of access to institutional resources and evidence could have prevented it from setting out, with the requisite degree of clarity and precision, its line of argument concerning the existence of those elements, in the light, in particular, of the fact that, in the first place, it was represented by a lawyer and, in the second place, it had not submitted an application for legal aid for that purpose. 67 Consequently, the fourth and fifth grounds of appeal must be rejected as being manifestly inadmissible in part and unfounded in part. 68 In the light of all the findings above, points 1 and 3 of the operative part of the order under appeal must be set aside. The action before the General Court 69 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court of Justice quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits. 70 That is not the case here. Since the General Court found that there was no longer any need to adjudicate without having examined the admissibility of the application for annulment or the substance of the dispute, the state of the proceedings do not permit final judgment to be given in the matter and it is therefore appropriate to refer the case back to the General Court so that it can adjudicate on that application. 71 Furthermore, the appellant’s request that the case be referred back to a chamber of the General Court composed of judges other than those who made up the chamber which delivered the order under appeal must be refused. The Rules of Procedure of the Court of Justice make no provision for the Court of Justice, following the examination of an appeal, to give instructions to the General Court as regards the composition of the chamber to which the case will be assigned after it has been referred back to the General Court by the Court of Justice. It will be for the President of the General Court, where appropriate, to decide whether the case should be assigned to another chamber sitting with the same number of judges, pursuant to Article 192(1) of the Rules of Procedure of the General Court. Costs 72 Since the case is being referred back to the General Court, it is appropriate to reserve the costs relating to the present appeal. On those grounds, the Court (Fifth Chamber) hereby: 1. Sets aside points 1 and 3 of the operative part of the order of the General Court of the European Union of 20 December 2021, Niemelä and Others v ECB (T‑321/17, EU:T:2021:942); 2. Dismisses the appeal as to the remainder; 3. Refers the case back to the General Court of the European Union for it to rule on the action for annulment brought by Nemea Bank plc; 4. Reserves the costs. Lenaerts Jarukaitis Regan Delivered in open court in Luxembourg on 12 December 2024. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English.