Judgment;Abstract — ECLI:EU:T:2022:279
Date: 2022-05-11
Language of the case: Italian
Court formation: Second Chamber, Extended Composition
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded
Origin: Italy

summary table annexed to the contested decision, it must be considered that the ECB did not make a manifest error of assessment when it deemed that it was not necessary to hold a hearing. 211 In addition, having regard to the failure to fulfil the criterion of good reputation, the ECB was unable to grant an authorisation to acquire a qualifying holding subject to conditions. Consequently, to hear the applicants’ views on that point would have been otiose. 212 Consequently, the seventh plea is unfounded. The eighth plea, raised as a plea of illegality, alleging that Article 31(3) of Regulation No 468/2014 is unlawful 213 The applicants allege, by raising a plea of illegality based on Article 277 TFEU, that Article 31(3) of Regulation No 468/2014 is unlawful, on the ground that it constitutes a breach of the rights of the defence guaranteed by Article 41 of the Charter and of the general principles of law arising from the constitutional traditions common to the Member States. 214 They maintain that the three-day period provided for in Article 31(3) of Regulation No 468/2014 for the submission of comments on the proposal for a decision does not ensure respect for the inter partes principle and the effective exercise of the right to be heard on the facts and objections forming the basis of decisions on the acquisition of qualifying holdings. 215 In that regard, it should be borne in mind that the rights of the defence, which include the right to be heard, are among the fundamental rights forming an integral part of the EU legal order and are enshrined in the Charter (see, to that effect, judgments of 23 September 2015, Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, paragraph 32 and the case-law cited, and of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 53). 216 The right to be heard is protected not only by Articles 47 and 48 of the Charter, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also by Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) of the Charter provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken (see, to that effect, judgment of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 54 and the case-law cited). 217 That right requires that any person against whom a decision adversely affecting him or her may be taken must be afforded the opportunity to make known his or her views on the evidence used against him or her to substantiate the decision at issue (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 66, and of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraph 38). The person concerned must be given a sufficient period of time in which to do so (judgment of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 37). 218 According to the case-law of the Court of Justice, fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes the very substance of the rights guaranteed (judgments of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 63; of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 33; and of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 84). 219 As regards the right to be heard in the context of supervisory proceedings, Article 31 of Regulation No 468/2014 provides that, before the ECB may adopt a supervisory decision which would adversely affect a party, the party must be given the opportunity of commenting in writing to the ECB on the facts, objections and legal grounds relevant to the ECB supervisory decision. Pursuant to that article, if the ECB deems it appropriate it may also give the parties the opportunity to comment in a meeting. 220 It is also stated in Article 31 of Regulation No 468/2014 that the notification by which the ECB gives the parties the opportunity to provide their comments is to mention the material content of the intended ECB supervisory decision and the material facts, objections and legal grounds on which the ECB intends to base its decision. 221 Next, Article 31(3) of Regulation No 468/2014 provides that the time limit for submitting comments is, in principle, to be two weeks and that, in particular, in the situations covered by Articles 14 and 15 of and Regulation No 1024/2013, that period is to be shortened to three working days. On application of the party concerned, the ECB may extend those time limits, as appropriate. 222 Thus, it is apparent on reading the third subparagraph of Article 31(3) of Regulation No 468/2014 and Article 15 of Regulation No 1024/2013 that the proposed acquirer of a qualifying holding has the opportunity to comment in writing within a time limit of three days from receipt of a document setting out the facts, objections and legal grounds on which the ECB intends to base its decision. 223 Furthermore, pursuant to Article 22(1) of Directive 2013/36, proposed acquirers of a qualifying holding are to notify the competent authorities of the proposed acquisition, so that the ECB may adopt its decision on the basis of the material submitted by the applicant. 224 It follows from those provisions that different grounds make it possible, in the context of a supervisory procedure such as that at issue in the present case, to ensure respect for the right to be heard of the parties concerned. 225 First, the parties concerned are required to disclose the matters and arguments relating to a request for authorisation of a qualifying holding at the time when they submit their request. 226 In their request for authorisation of an acquisition of a qualifying holding, the persons concerned may therefore already put forward all the material necessary for the assessment of their request. 227 Second, the notification whereby the ECB must give the parties the opportunity to comment in writing must mention the material content of the intended decision, the facts, grounds and essential legal grounds on which it intends to base its decision. That notification also gives the party concerned the opportunity to make known its views on the material of which it was not aware, but also on all the evidence used against it as the basis for the decision at issue, and to put forward arguments. That opportunity may also be used by the ECB to take into account any objection which the parties concerned may have raised during the administrative procedure and to provide further particulars of all the matters of fact and of law used as a basis for the final decision. 228 Third, where the ECB intends to base its decision on considerations of fact and of law of which the applicant was not aware or on evidence other than that provided by the applicant, respect for the rights of the defence may be ensured because the ECB has the option of holding a meeting. 229 That possibility may also be used, moreover, to provide further particulars of the questions or objections raised by the party concerned when requesting authorisation to acquire a qualifying holding and on all matters that may be used against the applicant as the basis of the decision at issue. 230 Therefore, contrary to the applicants’ contention, the brief length of the deadline set for submission of comments on the proposal for a decision, assessed in the light of the various procedural methods that allow the parties concerned to express their views on the matters intended to serve as the basis for the contested decision, cannot be considered to be contrary to the right to be heard. That is a fortiori the case since, where appropriate, that deadline may be extended by the ECB at the request of the party concerned. 231 In fact, in so far as there are several procedural methods that will allow the parties concerned to be heard, including the submission of their request for authorisation of an acquisition of a qualifying holding and the possibility of holding a meeting, their right to comment on the proposal for a decision seems to supplement those possibilities and the three-day time limit for submission of those comments, which may, where appropriate, be extended, must therefore be regarded as sufficient. 232 It is for the ECB, moreover, to use all available means to ensure actual respect for the right to be heard, which the General Court will verify in each given situation. 233 In that regard, it must also be emphasised, in any event, that the limitation of the right to be heard arising from the tight deadline for submitting comments under Article 31 of Regulation No 468/2014 pursues objectives of general interest, that it does not go beyond what is necessary to attain those objectives and that, in the light of the aim pursued and the other procedural methods available, it does not constitute a disproportionate and intolerable interference with that right within the meaning of the case-law cited in paragraph 218 above. 234 In fact, confining the procedure within tight deadlines satisfies the need not to delay the adoption of a decision on the proposed acquisition of a qualifying holding in a credit institution, which may have significant financial consequences. 235 In addition, the second subparagraph of Article 22(2) of Directive 2013/36 provides that the assessment procedure must be completed within 60 working days. That provision was already to be found in Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/CE, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector (OJ 2007 L 247, p. 1), recital 7 of which explained that the imposition of an assessment period of no more than 60 days was justified by the need to ensure the clarity and predictability of the assessment procedure. 236 Consequently, the plea of illegality raised in respect of Article 31 of Regulation No 468/2014 must be dismissed, on the ground that that article, read with the other provisions governing the procedure for the authorisation of qualifying holdings and permitting the parties concerned to put forward their views, does not breach the right to be heard of the persons concerned, and the eighth plea must therefore be dismissed. The ninth plea, alleging that the preparatory acts adopted by the Bank of Italy are unlawful 237 The ninth plea, raised in the course of the proceedings, may be broken down into six parts, alleging, respectively, (i) breach by the Bank of Italy of the principle of res judicata attaching to the judgment of the Consiglio di Stato (Council of State) of 3 March 2016; (ii) error or misuse of powers by the Bank of Italy; (iii) breach of the principles of protection of legitimate expectations, legal certainty and good administration; (iv) breach of the rights of the defence, of the inter partes principle and of the right to a fair hearing; (v) breach of the principle of legal certainty and of the principle that acts which have not been published or translated cannot be used against individuals; and (vi) breach of the principles of proportionality, legality and reasonableness. 238 The applicants maintain that the preparatory acts adopted by the Bank of Italy contain flaws of such a kind as to render the contested decision illegal. 239 The ECB, supported by the Commission, disputes that line of argument. 240 By this plea, the applicants maintain that the preparatory acts adopted by the Bank of Italy, and in particular the decision to initiate the procedure and the proposal for a decision submitted to the ECB, contain flaws of such a kind as to render the contested decision illegal. 241 This plea was raised following the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023). 242 In the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), the Court of Justice ruled, first, that Article 263 TFEU was to be interpreted as precluding national courts from reviewing the legality of decisions to initiate procedures, preparatory acts or non-binding proposals adopted by competent national authorities in the procedure provided for in Articles 22 and 23 of Directive 2013/36 and Article 4(1)(c) and Article 15 of Regulation No 1024/2013, and also in Articles 85 to 87 of Regulation No 468/2014 (see the operative part of that judgment). 243 In the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), the Court of Justice held, second, that, in such a situation, where EU law does not aim to establish a division between two powers – one national and the other of the European Union – with separate purposes but, on the contrary, lays down that an EU institution is to have exclusive decision-making power, it fell to the EU Courts, by virtue of their exclusive jurisdiction to review the legality of EU acts on the basis of Article 263 TFEU, to rule on the legality of the final decision adopted by the EU institution at issue and to examine, in order to ensure effective judicial protection of the persons concerned, any defects vitiating the preparatory acts or the proposals of the national authorities that would be such as to affect the validity of that final decision (see paragraph 44 and the operative part of that judgment). 244 Since this plea was raised after the application had been lodged, it must be ascertained whether, as the ECB and the Commission contend, this new plea must be regarded as inadmissible. 245 The applicants assert, in order to substantiate the admissibility of the plea, that it is closely connected with the pleas and arguments in the application and that the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), is a matter of law which came to light in the course of the procedure. 246 In the first place, it must be observed that in the application the applicants raise no plea or argument alleging that the preparatory acts adopted by the Bank of Italy were illegal. 247 In addition, in so far as the pleas in the application sought to demonstrate that the contested decision was illegal, this new plea, relating to the preparatory acts of the Bank of Italy, cannot be regarded as having a sufficiently close link with those pleas, since those pleas were aimed exclusively at an act of EU law and therefore had a different purpose. 248 Furthermore, the fact that the applicants included the documents relating to the domestic-law actions against the preparatory acts of the Bank of Italy in the annexes to the application cannot suffice to support the conclusion that that plea, which pursues the same aim as the domestic-law actions, had already been raised at the stage of the application. 249 In fact, it is not for the General Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgments of 7 November 1997, Cipeke v Commission, T‑84/96, EU:T:1997:174, paragraph 34, and of 21 March 2002, Joynson v Commission, T‑231/99, EU:T:2002:84, paragraph 154). 250 In the second place, the applicants claim that the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), must be regarded as a matter of law which came to light in the course of the procedure and must therefore justify the submission of new pleas in law, in accordance with Article 84(1) of the Rules of Procedure. 251 In that regard, it follows from the case-law that a judgment which merely confirms a legal position known to the applicant at the time when an action is brought cannot be regarded as a matter allowing a new plea in law to be raised (see, to that effect, judgments of 14 October 2014, Buono and Others v Commission, C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraphs 58 and 60, and of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 39). 252 According to settled case-law, a preliminary ruling does not create the law, but is purely declaratory, with the consequence that in principle it takes effect from the date on which the rule interpreted entered into force (see judgment of 8 September 2011, Q-Beef and Bosschaert, C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 48 and the case-law cited). 253 It may be emphasised, in that regard, that the Court of Justice did not decide to limit in time the effects of the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), and that settled case-law is therefore fully applicable. 254 It follows that the effects flowing from the interpretation of Article 263 TFEU given by the Court of Justice in the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), go back to the date on which that article entered into force. 255 In a similar vein, the General Court has already held that a judgment delivered in the course of the procedure cannot be relied on as a new matter since that judgment gave, in principle, only an ex tunc interpretation of EU law (see, to that effect and by analogy, judgment of 27 February 1997, FFSA and Others v Commission, T‑106/95, EU:T:1997:23, paragraph 57). 256 The interpretation given by the Court of Justice must thus be considered to have been known by the applicants at the time when they brought their action, in application of the principle that ignorance of the law is no defence (see, to that effect, judgment of 12 July 1989, Binder, 161/88, EU:C:1989:312, paragraph 19, and order of 22 June 2009, Nijs v Court of Auditors, T‑371/08 P, EU:T:2009:215, paragraph 28). 257 In those circumstances, the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), cannot be regarded as a matter of law that came to light in the course of the procedure, within the meaning of Article 84(1) of the Rules of Procedure. 258 Consequently, the ninth plea must be dismissed as inadmissible. The tenth plea, alleging, in the form of a plea of illegality based on Article 277 TFEU, that Article 4(3) and Article 15 of Regulation No 1024/2013 are unlawful 259 By the tenth plea, which was raised in the course of the procedure, the applicants allege, by raising a plea of illegality, that Article 4(3) and Article 15 of Regulation No 1024/2013 are unlawful, in that the reference to national law in those articles and the exclusive jurisdiction of the EU Courts to review the legality of preparatory national acts which follows from the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), give rise to a breach of the right to effective judicial protection. 260 In the applicants’ submission, in essence, there is a breach of the right to effective judicial protection because that system prevents the effective review of the constitutionality of national preparatory acts provided for in Italian constitutional law, for which the EU Courts do not have jurisdiction. Those acts are therefore immune to any review of constitutionality, in so far as the EU Courts cannot review their conformity to the Italian Constitution and in so far as they cannot refer the matter to the Corte costituzionale (Constitutional Court, Italy) for that purpose. 261 The ECB, supported by the Commission, disputes that line of argument. 262 Since this plea was submitted after the application had been lodged, it is appropriate to ascertain whether, as the ECB and the Commission claim, this new plea in law must be considered inadmissible. 263 As regards, in the first place, the existence of a sufficiently close link between this plea and the pleas in law or the arguments in the application, it must be stated that the application contains no plea in law or argument alleging that Article 4(3) and Article 15 of Regulation No 1024/2013 are illegal. 264 In so far as only the eighth plea consisted in a plea of illegality, and in so far as it referred to Article 31(3) of Regulation No 468/2014, this new plea, which refers to other articles, cannot be considered to have a sufficiently close link with the pleas in the application. 265 In the second place, for the reasons stated in paragraphs 251 to 257 above, the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), cannot be regarded as a matter of law which came to light in the course of the procedure, within the meaning of Article 84 of the Rules of Procedure. 266 Consequently, the tenth plea must be dismissed as inadmissible. The new offers of evidence made by the applicants and by the ECB 267 By way of preliminary point, it must be recalled that Article 85(3) of the Rules of Procedure provides that ‘the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified’. 268 In the first place, on 17 July 2021 the applicants asked the General Court to place on the file Mr Berlusconi’s application to the European Court of Human Rights (‘the ECtHR’), registered as No 8683/14, of 28 December 2013, the letter from the ECtHR of 3 May 2021 communicating that application to the Italian Government and also a statement of the facts and the questions relating to that case by the ECtHR of 17 May 2021. 269 They justified the production of that evidence, in essence, by the connection between the contested decision, which is based, in particular, on Mr Berlusconi’s conviction and sentence for the offence of tax fraud, and that action before the ECtHR, the purpose of which is to dispute the proceedings that led to that conviction and sentence. 270 When questioned at the hearing, the ECB and the Commission did not object to that evidence being placed on the file. 271 In that regard, it should be stated, first, that Mr Berlusconi’s application of 28 December 2013 to the ECtHR, registered as No 8683/14, predates the introduction of the present action and that the applicants put forward no justification for the delay in submitting that document. 272 That document must therefore be dismissed as inadmissible. 273 Second, the letter of 3 May 2021 from the ECtHR communicating the application to the Italian Government, and the statement of the facts and the questions relating to that case by the ECtHR of 17 May 2021 was issued after the end of the written part of the procedure, so that the delay in submitting them may be considered to be justified. 274 Those materials must therefore be considered admissible. 275 However, as is apparent from paragraphs 138 to 142 above, the applicants have raised no plea in the application seeking to challenge the assessment of the conviction and sentence in question by the ECB. 276 It follows that those materials are of no relevance for the present action. 277 In the second place, on 17 July 2021, the applicants asked the General Court to place on the file the judgment of the Corte suprema di cassazione (Supreme Court of Cassation) No 10355/2021, of 9 March 2021, dismissing their appeal against the judgment of the Consiglio di Stato (Council of State) of 3 May 2019, whereby the latter court declared inadmissible the actions to implement judgment No 882 of the Consiglio di Stato (Council of State) of 3 March 2016, in application of the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023). 278 When questioned at the hearing, the ECB and the Commission did not object to the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), being placed on the file. 279 Since the date of that judgment is after the end of the written part of the proceedings, it must be considered that its belated production by the applicants is justified and, accordingly, that that document is admissible. 280 However, the applicants offer no explanation or argument capable of showing the link between the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), and the pleas raised in the context of the present action. Nor does that judgment support any argument or plea in law raised by the applicants. 281 It therefore has no relevance to the present action. 282 In the third place, on 6 August 2021 the applicants asked the General Court to place on the file Mr Berlusconi’s application of 13 March 2014 to the ECtHR, registered as No 23554/14, the ECtHR’s letter of 3 May 2021 communicating the application to the Italian Government, a statement of 6 April 2021 by the ECtHR of the facts and the questions relating to that case and the defence dated 26 July 2021 submitted by the Italian Government in that case. 283 They justified the production of that evidence by the close link between the present action and that case before the ECtHR, which concerns a civil dispute in which the applicants were, in essence, wrongly declared to bear civil liability for offences of corruption although Mr Berlusconi had been acquitted of those offences in criminal proceedings. 284 When questioned at the hearing, the ECB and the Commission did not object to those documents being placed on the file. 285 In that regard, it should be stated, first, that Mr Berlusconi’s application of 13 March 2014 to the ECtHR, registered as No 23554/14, predates the introduction of the present action and that the applicants put forward no matter to justify the delay in the submission of that document. 286 That document must therefore be dismissed as inadmissible. 287 Second, the ECtHR’s letter of 3 May 2021 communicating the application to the Italian Government, a statement of the facts and of the questions relating to that case by the ECtHR of 6 April 2021 and the defence submitted by the Italian Government in that case on 26 July 2021 postdate the end of the written part of the proceedings, and the delay in submitting them is therefore justified. 288 Those documents must therefore be considered admissible. 289 However, the applicants have raised no plea in the application seeking to challenge the ECB’s assessment of the civil dispute. 290 It follows that those documents have no relevance for the present action. 291 In the fourth place, on 10 September 2021 the ECB requested the General Court to place judgment No 21970/21 of the Corte suprema di cassazione (Supreme Court of Cassation) of 30 July 2021 on the file, on the ground that that judgment confirmed, in essence, the ECB’s interpretation of a merger in Italian law. 292 When questioned at the hearing, the applicants did not object to judgment No 21970/21 of the Corte suprema di cassazione (Supreme Court of Cassation) of 30 July 2021 being placed on the file. 293 In the present case, since judgment No 21970/21 of the Corte suprema di cassazione (Supreme Court of Cassation) of 30 July 2021 was delivered after the end of the written part of the proceedings, it must be considered that its belated production by the ECB is justified and, accordingly, that that new offer of proof is admissible. 294 However, as is clear from paragraphs 87 to 89 above, for the purposes of the application of Articles 22 and 23 of Directive 2013/36, the effects of the merger in question must be interpreted in application of EU law. 295 It follows that judgment No 21970/21 of the Corte suprema di cassazione (Supreme Court of Cassation) of 30 July 2021 has no relevance for the present action. 296 Consequently, the action must be dismissed in its entirety. IV. Costs 297 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs incurred by the ECB, in accordance with the form of order sought by the latter. 298 Under of Article 138(1) of the Rules of Procedure, 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 GENERAL COURT (Second Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Finanziaria d’investimento Fininvest SpA (Fininvest) and Mr Silvio Berlusconi, in addition to bearing their own costs, to pay those incurred by the European Central Bank (ECB); 3. Orders the European Commission to bear its own costs. Papasavvas Buttigieg Schalin Costeira Kornezov Delivered in open court in Luxembourg on 11 May 2022. [Signatures] * Language of the case: Italian.