Provisional text
OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 21 November 2024 (1)
Joined Cases C‑777/22 P and C‑789/22 P
European Central Bank (ECB)
v
Francesca Corneli (C‑777/22 P)
and
European Commission
v
Francesca Corneli (C‑789/22 P)
( Appeals – Economic and monetary policy – Single supervisory mechanism – Regulation (EU) No 1024/2013 – First subparagraph of Article 4(3) – Application of national law transposing directives by the ECB – Directive 2014/59/EU – First sentence of Article 29(1) – Direct applicability – Obligation on individuals – Interpretation in compliance with the directive – Judicial review of the
application of national law by the ECB – Decision of the
ECB to place Banca Carige SpA under temporary administration – Action for annulment brought by a
small shareholder – Admissibility – Fourth paragraph of Article 263 TFEU – Direct and individual concern – Continuing interest in bringing proceedings )
Table of contents
I.
Introduction
II.
Legal framework
A.
European Union law
1.
Regulation No 1024/2013
2.
Directive 2014/59
B.
National law
III.
Background to the dispute
A.
Facts
B.
The judgment under appeal
IV.
Procedure before the Court of Justice and forms of order sought
V.
Assessment
A.
Overview of the grounds of appeal and order of examination
B.
Grounds of appeal concerning the admissibility of the action
1.
Legal standing to bring proceedings under the fourth paragraph of Article 263 TFEU
(a)
Direct concern
(b)
Individual concern
2.
Continuation of the interest in bringing proceedings
3.
Interim conclusion
C.
Grounds of appeal concerning the substance of the action: infringement of the first subparagraph of Article 4(3) of Regulation No 1024/2013 in conjunction with Article 29 of Directive 2014/59 and Article 70(1) of the TUB?
1.
Order of examination
2.
Direct applicability and primacy of the first sentence of Article 29(1) of Directive 2014/59?
(a)
Normative structure of the first sentence of Article 29(1) of Directive 2014/59
(b)
Direct applicability of Article 29(1) of Directive 2014/59 to the detriment of the bank and its shareholders?
3.
In the alternative: direct application of the first sentence of Article 29(1) of Directive 2014/59 by the ECB?
(a)
The ECB as an addressee of directly applicable provisions of a directive
(b)
Consequences of the direct applicability of the first sentence of Article 29(1) of Directive 2014/59 to the detriment of the bank and its shareholders
4.
Interpretation of Article 69octiesdecies(1)(b) and Article 70(1) of the TUB in compliance with the directive?
5.
National law for the purposes of the first subparagraph of Article 4(3) of Regulation No 1024/2013 as ‘law’ or ‘fact’?
6.
Admissibility of the complaint concerning whether the interpretation of Article 69octiesdecies(1)(b) in conjunction with Article 70(1) of the TUB complies with the directive
7.
Interim conclusion
VI.
Conclusion
I.      Introduction
1.        These joined appeals
lodged by the
European
Central Bank (ECB) and by the
European Commission (together ‘the appellants’) are directed against a judgment of the
General Court (‘the judgment under appeal’) (2) by which it annulled the ECB
decisions
of
1 January and 29 March 2019
(‘the contested decisions’). By those decisions, the ECB had placed Banca Carige SpA (‘the bank’) under temporary administration (3) and had extended that measure until
30 September 2019. (4)
2.        The applicant at first instance and respondent, Ms Corneli, was one of many minority shareholders in the bank.
3.        The appellants complain, first, that the General Court wrongly declared the action to be admissible. The General Court had erred in law in finding that Ms Corneli had a (continuing) interest in bringing proceedings for the annulment of the contested decisions, which were of direct and individual concern to her within the meaning of the fourth paragraph of Article 263 TFEU. In this regard, the General Court distinguished Ms Corneli’s situation, where the bank was placed under temporary administration by the ECB, from the situation of the shareholders
underlying the judgment in ECB and Others v Trasta Komercbanka and Others (5) (‘the judgment in Trasta Komercbanka’). In that case, the shareholders had challenged an ECB decision to withdraw the authorisation of the bank concerned. The Court of Justice considered that those shareholders were not directly affected by that decision and therefore dismissed their action for annulment as inadmissible, since the decision had only negative economic effects on them, but did not affect their legal position. (6)
4.        The appellants complain, in essence, second, with regard to the substance, that the General Court had infringed
the first subparagraph of Article 4(3)
of Regulation (EU) No 1024/2013. (7) In that regard, important questions of law arise which have not yet been clarified in the case-law of the Court of Justice. They concern the scope of the ECB’s obligation under that provision, in the exercise of its supervisory powers over credit institutions within the single supervisory mechanism, also to apply the national law adopted to transpose the relevant EU
law, including Directive 2014/59/EU (8) which is applicable here:
–        Is the ECB required to apply national law as it was adopted by the legislature in transposing a directive and is interpreted and applied by national courts, even if it is contrary to the provisions of that directive?
–        In the case of directly applicable provisions of a directive, are not only national authorities and courts but also the ECB required to apply solely those provisions and disregard national law which is contrary to them in accordance with the principle of the primacy of EU law?
–        If the direct
application of
provisions of a directive
is not possible, for example because they
impose obligations
on individuals, is the ECB required to comply with the principles
governing interpretation of
national law
in compliance with the directive?
–        Must the ECB have recourse in this regard to the interpretative methods recognised in national law and the relevant case-law of the national courts?
5.        In my view,
against the background of the
basic postulates of maintaining
uniformity and the rule of law in the EU legal order, the ECB as an EU institution cannot be obliged under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013
knowingly to infringe
EU law
by applying national law
which is contrary to it. If it nevertheless did so, this would have to be remedied by the EU Courts. These questions and the reasoning for such a conclusion are
also, however, fiercely disputed in the legal literature. (9) In that context, it is necessary to clarify the equally disputed question
concerning the
standards of review
that apply in actions for annulment at first instance and in subsequent appeal proceedings in respect of
acts adopted by the
ECB
to apply national legislation. (10)
II.    Legal framework
A.      European Union law
6.        The applicable EU legislation in this case is, in essence, Regulation No 1024/2013 and Directive 2014/59.
1.      Regulation No 1024/2013
7.        Recital 34 of Regulation No 1024/2013 reads as follows:
‘For the carrying out of its tasks and the exercise of its supervisory powers, the ECB should apply the material rules relating to the prudential supervision of credit institutions. Those rules are composed of the relevant Union law, in particular directly applicable Regulations or Directives, such as those on capital requirements for credit institutions and on financial conglomerates. Where the material rules relating to the prudential supervision of credit institutions are laid down in Directives, the ECB should apply the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and in areas where, on the date of entry into force of this Regulation, those Regulations explicitly grant options for Member States, the ECB should also apply the national legislation exercising such options. Such options should be construed as excluding options available only to competent or designated authorities. This is without prejudice to the principle of the primacy of Union law. It follows that the ECB should, when adopting guidelines or recommendations or when taking decisions, base itself on, and act in accordance with, the relevant binding Union law.’
8.        The first subparagraph of Article 4(3) of Regulation No 1024/2013 provides:
‘For the purpose of carrying out the tasks conferred on it by this Regulation, and with the objective of ensuring high standards of supervision, the ECB shall apply all relevant Union law, and where this Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the ECB shall apply also the national legislation exercising those options.’
2.      Directive 2014/59
9.        Recital 39
of
Directive 2014/59
states:
‘During the recovery and early intervention phases laid down in this Directive, shareholders should retain full responsibility and control of the institution except when a temporary administrator has been appointed by the competent authority.’
10.      Recital 40 of that directive includes the following statement:
‘In order to preserve financial stability, it is important that competent authorities are able to remedy the deterioration of an institution’s financial and economic situation before that institution reaches a point at which authorities have no other alternative than to resolve it. To that end, competent authorities should be granted early intervention powers, including the power to appoint a temporary administrator, either to replace or to temporarily work with the management body and senior management of an institution. The task of the temporary administrator should be to exercise any powers conferred on it with a view to promoting solutions to redress the financial situation of the institution. The appointment of the temporary administrator should not unduly interfere with rights of the shareholders or owners or procedural obligations established under Union or national company law and should respect international obligations of the Union or Member States, relating to investment protection …’
11.      Article 28
of Directive 2014/59, which has the heading ‘Removal of senior management and management body’, provides:
‘Where there is a significant deterioration in the financial situation of an institution or where there are serious infringements of law, of regulations or of the statutes of the institution, or serious administrative irregularities, and other measures taken in accordance with Article 27 are not sufficient to reverse that deterioration, Member States shall ensure that competent authorities may require the removal of the senior management or management body of the institution, in its entirety or with regard to individuals. The appointment of the new senior management or management body shall be done in accordance with national and EU law and be subject to the approval or consent of the competent authority.’
12.      Article 29 of Directive 2014/59, which has the heading ‘Temporary administrator’, provides:
‘1.      Where replacement of the senior management or management body as referred to in Article 28 is deemed to be insufficient by the competent authority to remedy the situation, Member States shall ensure that competent authorities may appoint one or more temporary administrators to the institution. Competent authorities may, based on what is proportionate in the circumstances, appoint any temporary administrator either to replace the management body of the institution temporarily or to work temporarily with the management body of the institution and the competent authority shall specify its decision at the time of appointment. If the competent authority appoints a temporary administrator to work with the management body of the institution, the competent authority shall further specify at the time of such an appointment the role, duties and powers of the temporary administrator and any requirements for the management body of the institution to consult or to obtain the consent of the temporary administrator prior to taking specific decisions or actions. The competent authority shall be required to make public the appointment of any temporary administrator except where the temporary administrator does not have the power to represent the institution. Member States shall further ensure that any temporary administrator has the qualifications, ability and knowledge required to carry out his or her functions and is free of any conflict of interests.
2.      The competent authority shall specify the powers of the temporary administrator at the time of the appointment of the temporary administrator based on what is proportionate in the circumstances. Such powers may include some or all of the powers of the management body of the institution under the statutes of the institution and under national law, including the power to exercise some or all of the administrative functions of the management body of the institution. The powers of the temporary administrator in relation to the institution shall comply with the applicable company law.
3.      The role and functions of the temporary administrator shall be specified by [the] competent authority at the time of appointment and may include ascertaining the financial position of the institution, managing the business or part of the business of the institution with a view to preserving or restoring the financial position of the institution and taking measures to restore the sound and prudent management of the business of the institution. The competent authority shall specify any limits on the role and functions of the temporary administrator at the time of appointment.
4.      Member States shall ensure that the competent authorities have the exclusive power to appoint and remove any temporary administrator. The competent authority may remove a temporary administrator at any time and for any reason. The competent authority may vary the terms of appointment of a temporary administrator at any time subject to this Article.
5.      The competent authority may require that certain acts of a temporary administrator be subject to the prior consent of the competent authority. The competent authority shall specify any such requirements at the time of appointment of a temporary administrator or at the time of any variation of the terms of appointment of a temporary administrator.
In any case, the temporary administrator may exercise the power to convene a general meeting of the shareholders of the institution and to set the agenda of such a meeting only with the prior consent of the competent authority.
6.      The competent authority may require that a temporary administrator draws up reports on the financial position of the institution and on the acts performed in the course of its appointment, at intervals set by the competent authority and at the end of his or her mandate.
7.      The appointment of a temporary administrator shall not last more than one year. That period may be exceptionally renewed if the conditions for appointing the temporary administrator continue to be met. The competent authority shall be responsible for determining whether conditions are appropriate to maintain a temporary administrator and justifying any such decision to shareholders.
8.      Subject to this Article the appointment of a temporary administrator shall not prejudice the rights of the shareholders in accordance with Union or national company law.
9.      Member States may limit the liability of any temporary administrator in accordance with national law for acts and omissions in the discharge of his or her duties as temporary administrator in accordance with paragraph 3.
10.      A temporary administrator appointed pursuant to this Article shall not be deemed to be a shadow director or a de facto director under national law.’
B.      National law
13.      Directive 2014/59
was transposed into Italian law
by Decreto legislativo
No 181 of
16 November 2015 (‘Legislative Decree No 181’). (11)
14.      Article 8
of Law
No 114 of
9 July 2015, (12) which lays down the necessary
principles and guidelines for the exercise of powers, provides inter alia:
‘1.      In the exercise of the power to transpose Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, the Government shall be required to comply with, in addition to the principles and guidelines referred to in
Article 1(1), those set out in Directive 2014/59/EU and the following specific principles and guidelines:
(a)      guaranteeing consistency and compatibility
between the national legislation transposing the
directive and the European
legal framework for banking supervision, crisis management and protection of depositors, ensuring in particular that the options
provided for in Directive 2014/59/EU are exercised in accordance with the provisions of
Regulation (EU) No 806/2014 of the
European
Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution
Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010;
…’
15.      The TUB and
credit (Testo unico bancario;
‘the
TUB’) (13) was amended
by Legislative Decree No 181. In Section
01-I, headed
‘Early intervention measures’,
Article 69octiesdecies
was inserted, paragraph 1(b)
of which reads as follows:
‘The Banca d’Italia [(Italian
Central Bank)] may take the following measures in respect of a bank or the parent company of a banking group:
…
(b)      removal of the actors referred to in Article 69viciessemel
where there are serious infringements of law, of administrative regulations or of the statutes, where they are
serious administrative irregularities or where the deterioration in the situation of the bank or banking group is particularly significant, provided that the measures referred to in (a) or provided for in Articles 53bis and
67ter are not sufficient to remedy the situation.’
16.      Article 69viciessemel
of the TUB
empowers the supervisory authority to remove individual members of the management and supervisory bodies and of the board of directors.
17.      Article 70(1)
of the TUB, inserted into
Section
I under the heading
‘Special administrator’, provides:
‘The Banca d’Italia
may order the dissolution of the bodies exercising the management and supervision functions of banks in the event of infringements or irregularities within the meaning of
Article 69octiesdecies(1)(b), if serious financial losses are expected or where dissolution is requested by reasoned application from the management bodies or by an extraordinary general meeting.’
III. Background to the dispute
A.      Facts
18.      The bank is a credit institution established in Italy which is listed on the stock exchange and has been subject to direct prudential supervision by the ECB since 2014. It accumulated losses of more than EUR 1.6 billion between December 2014 and
1 January 2019. When her action was brought before the General Court, Ms Corneli held 200 000 ordinary shares, corresponding to
0.000361% of the bank’s share capital.
19.      From 2016 to the end of 2018, the ECB adopted several unsuccessful measures for the recapitalisation and stabilisation of the bank to enable it to comply again with the own funds requirements within the meaning of Article 27(1) of Directive 2014/59. (14)
20.      By the first contested
decision of
1 January 2019, based on
Articles 69octiesdecies, 70 and 98 of the TUB
in conjunction with
Article 29
of Directive 2014/59, the ECB placed the bank
under temporary administration (also
‘the decision to place the bank under temporary administration’) and, in particular, ordered the following measures:
–        the bank’s board of directors was dissolved and the former members were replaced by three temporary directors, including
M. and I., who had previously been the chairman and the managing director of that board of directors;
–        the bank’s supervisory committee was dissolved and the former members were replaced by three other persons;
–        the mandate to ‘take the necessary steps to ensure that [the bank] once again complies with asset requirements on a sustainable basis was assigned to the new bodies’.
21.      On 2 January 2019, the ECB and the bank announced by simultaneous press releases the adoption of the decision to place the bank under temporary administration. The Commissione Nazionale per le Società e la Borsa (National Companies and Stock Exchange Commission, Italy) thereupon suspended trading of securities issued and guaranteed by the bank ‘until the entry into force of [this] decision or until the restoration, in particular as a result of the competent supervisory authorities’ new initiatives, of a comprehensive disclosure framework for securities issued or guaranteed by the bank’.
22.      By the second contested decision of 29 March 2019, the ECB extended the period of temporary administration until 30 September 2019
(also ‘the first extension decision’). This was announced by the bank in a press release on 30 March 2019.
23.      By decision of 30 September 2019, the ECB extended the period of temporary administration until 31 December 2019 (‘the second extension decision’).
24.      By decision of 20 December 2019, the ECB extended the period of temporary administration until 31 January 2020 in order to allow for conclusion of the operation to strengthen the capital base (‘the third extension decision’).
25.      As both parties stated in reply to the written and oral
questions posed by the
Court of Justice, the bank
was recapitalised by the Fondo Interbancario di Tutela dei Depositi (FITD) (15) in September 2019 under a framework agreement concluded by one of the temporary administrators and approved by the extraordinary general meeting of the
bank.
The FITD sold its
shares in the
bank
to BPER Banca S.p.a. in summer 2022.
As a result of the subsequent
‘squeeze-out’ procedure,
Ms Corneli
had to sell her
shares in September 2022 and therefore lost her status as a (minority) shareholder
in the
bank.
B.      The judgment under appeal
26.      By application lodged at the Registry of the General Court on
11 July 2019, Ms Corneli brought an action for annulment against the contested decisions. The Commission supported the ECB’s claim for the dismissal of the action as an intervener.
27.      By the judgment under appeal, the General Court annulled the contested decisions. It dismissed the action as to the remainder in so far as it was directed, in general, against
any consequent or subsequent act – in relation to the first contested decision – including the second and third extension decisions.
28.      The General Court rejected the plea of inadmissibility raised by the ECB and supported by the
Commission on the ground that, as a
minority shareholder
in the bank,
Ms Corneli is directly and individually concerned by the contested decisions for the purposes of the fourth paragraph of Article 263 TFEU and has an interest in bringing proceedings. She therefore has legal standing to bring proceedings. (16)
29.      On the substance, the General Court found, in essence, that the ECB had adopted the contested decisions
on an insufficient legal basis. They were based on
a
‘significant deterioration in the situation of [the bank]’
within the meaning of
Article 70(1)
of the TUB, which
transposed Article 29
of Directive 2014/59, even though that (national) provision
did not include any such
condition. Such a condition could be found only in Article 69octiesdecies(1)(b)
of the TUB, which transposed
Article 28
of the directive. The latter (national) provision
governed only the ‘removal’
of the bank’s management or supervisory bodies, but not the power – provided for in Article 70
of the TUB – to place the bank
under temporary administration
through the
‘dissolution’
of those bodies. Articles 69octiesdecies and 70 of the TUB
therefore concerned different situations
and – in the light of the wording
of
Articles 28 and 29 of Directive 2014/59 – measures to be taken in succession with differing degrees of intervention depending on the various
exhaustive (alternative) conditions. The condition of
‘deterioration in the situation of the bank’
did not therefore apply to measures under
Article 70
of the TUB,
with the result that the ECB
had infringed that provision. (17)
30.      On the basis of the clear
wording
of
Articles 69octiesdecies and
70 of the TUB and the terms used therein, an interpretation in compliance with EU law was also not possible in the view of the
General Court. The measure adopted by the
ECB
was the measure provided for in
Article 70
of the TUB, with the result that the conditions under that provision had to be satisfied. (18) The ‘deterioration in the situation of the bank’
provided for in Article 69octiesdecies
of the TUB
was
‘not a generic expression, but rather a condition laid down by legislation that refers to an exhaustive list of four alternative conditions’, and could not therefore
justify a
measure
under
Article 70
of the TUB. (19)
31.      In addition,
the ECB was not required to apply Directive 2014/59
with the purpose, in the case of a significant deterioration in the situation of the bank,
of placing it under temporary administration. Nor did this follow from its obligation under Article 4(3) of Regulation No 1024/2013 to apply the national law adopted to transpose directives. That provision could not be understood ‘as having two distinct sources of obligations, namely EU law in its entirety, including directives, to which the national law transposing them should be added’. According to the General Court, such an interpretation would imply ‘that the national provisions differ from directives and that, in such a case, the two types of document are binding on the ECB as separate legislative sources’. (20) However, this would be contrary to Article 288
TFEU. Furthermore, a directive could not impose obligations on an individual. Therefore, the error made by the
ECB
also could not be remedied by a free
interpretation of
Article 70
of the TUB
in the light of Directive 2014/59. (21)
32.      The General Court did not examine the other
six
pleas identified by it. (22)
33.      In so far as, by the words ‘any consequent or subsequent act’ in the application, in the reply and in a further letter,
Ms Corneli also objected to the second and third extension decisions, the General Court rejected that claim as inadmissible on grounds of a lack of precision and failure to satisfy the
conditions in Article 76(d) and Article 86
of its Rules of Procedure
because the application did not make sufficient reference to it. (23)
IV.    Procedure before the Court of Justice and forms of order sought
34.      By document lodged at the Registry
of the
Court of Justice on
21 December 2022, the ECB
brought the appeal in Case C‑777/22 P.
35.      By document lodged at the Registry
of the
Court of Justice on
22 December 2022, the Commission
brought the appeal in Case
C‑789/22 P.
36.      In response to requests made by the
Commission and the
ECB
on 18 and
20 January 2023, the President of the
Court of Justice decided, on
8 February 2023, to join Cases
C‑777/22 P and C‑789/22 P
pursuant to Article 54
of the Rules of Procedure of the Court of Justice.
37.      By document lodged at the Registry
of the
Court of Justice on
20 March 2023, Italy
applied, pursuant to Article 40(1) of the Statute of the Court of Justice of the European Union,
for leave to intervene in support of the form of order sought by the
ECB and the
Commission. By decision of 17 April 2023, the President of the Court of Justice allowed that application. Italy lodged its statement in intervention on 26 May 2023.
38.      The ECB, supported by Italy,
claims that the Court should:
–        set aside the
judgment under appeal
in so far as it annuls the contested decisions;
–        dismiss the
action for annulment
as inadmissible;
–        in the alternative, declare that the
contested decisions
are lawful and, if necessary, refer the case
back to the General Court for a decision
on the pleas not examined in the
judgment under appeal;
–        order Ms Corneli to pay the costs incurred by the
ECB
at first instance and on appeal.
39.      The Commission, supported by Italy,
claims that the Court should:
–        set aside the
judgment under appeal;
–        dismiss the
action for annulment as inadmissible and unfounded;
–        order Ms Corneli to pay the costs
at both instances;
–        in the alternative, set aside the judgment under appeal and refer the case back to the General Court.
40.      Ms Corneli
contends that the Court should:
–        dismiss the appeals
as
inadmissible and uphold the judgment under appeal;
–        in the alternative, uphold the pleas not examined by the
General Court, or
–        in the further alternative, refer the case back to the General Court for reconsideration.
41.      In response to requests made by the ECB and Italy
on 3 and
6 November 2023, the joined
cases
were assigned to the Grand Chamber of the
Court of Justice on
7 May 2024.
42.      On
7 May 2024, the Court asked the parties to respond in writing to certain questions, which they did within the time limits set.
43.      At the hearing on 25 June 2024, the parties presented oral argument and answered the questions put by the Court.
V.      Assessment
A.      Overview of the grounds of appeal and order of examination
44.      In Case
C‑777/22 P, the ECB, supported by Italy,
puts forward two
grounds of appeal.
45.      By the first ground of appeal,
the ECB complains that the
General Court made several errors of law in assessing ‘direct and individual
concern’
in respect of
Ms Corneli
within the meaning
of
the fourth paragraph of Article 263
TFEU
and her
interest in bringing proceedings. By the second
ground of appeal, the ECB alleges that the General Court erred in law in assessing the legal bases
on which the contested decisions
were adopted; that assessment
should have been made, in accordance with
the first subparagraph of Article 4(3)
of Regulation No 1024/2013,
by reference to the whole body of
applicable
national law and its interpretative methods. This holds in particular for
Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB as interpreted by the Italian
courts.
46.      In Case C‑789/22 P, the Commission, supported by Italy, puts forward five grounds of appeal, which to some extent overlap with those raised by the ECB.
47.      By the first ground of appeal, the Commission claims that the General Court made the same errors of law in applying the fourth paragraph of Article 263 TFEU as were alleged by the ECB in its first ground of appeal. By its second
ground of appeal,
the Commission alleges that the General Court erred in law in applying
Article 84
of its Rules of Procedure by unlawfully raising a substantive legal defect
of its own motion
and ruling ultra petita. By its third
ground of appeal, which is similar to the second ground of appeal raised by the ECB, the Commission objects to a purported error of law in the interpretation of
the first subparagraph of Article 4(3)
of Regulation No 1024/2013 and Article 70(1)
of the TUB. The fourth ground of appeal
concerns an infringement of
the third paragraph of Article 288 TFEU, alleging that the General Court erred in law in considering that
Article 70(1)
of the TUB
could not be interpreted in accordance with
Article 29
of Directive 2014/59. Lastly,
by
its
fifth
ground of appeal, which is likewise similar to the second ground of appeal raised by the ECB, the Commission
alleges that the General Court made several errors of law in assessing the relationship between
national
law and directives, including infringements of
the first subparagraph of Article 4(3)
of Regulation No 1024/2013 and the second and third paragraphs of Article 288
TFEU, and disregarded the direct applicability of the relevant provisions of the directive.
48.      I will begin by examining together the grounds of appeal
concerning the admissibility
of the action (24) (under B). I will then consider, also together, the grounds of appeal relating to the General Court’s substantive assessments (25) (under C).
B.      Grounds of appeal concerning the admissibility of the action
49.      The grounds of appeal
regarding the
admissibility
of the action
concern, first, the question whether
the contested decisions
are of direct and individual concern to
Ms Corneli
within the meaning of
the fourth paragraph of Article 263
TFEU (under 1) and, second, her (continuing) interest
in having them annulled
(under 2).
50.      It should be borne in mind in this regard that the Court of Justice must consider the admissibility of the action, including the continuation of the interest in bringing proceedings – irrespective of the arguments put forward by the parties and the assessment by the General Court – of its own motion in appeal proceedings. (26) For this reason alone, the plea of inadmissibility relied on by Ms Corneli in respect of the first ground of appeal raised by the ECB cannot succeed and must be rejected.
1.      Legal standing to bring proceedings under the fourth paragraph of Article 263 TFEU
51.      Under the fourth paragraph of Article 263 TFEU, persons who are not addressees of the contested measure have legal standing to bring proceedings only if that measure is of ‘direct and individual concern’ to them. I will first examine whether the contested decisions are of direct concern to Ms Corneli.
(a)    Direct concern
52.      It is apparent from settled case-law that two conditions must be fulfilled cumulatively for a person to be regarded as ‘directly concerned’ for the purposes of the fourth paragraph of Article 263 TFEU. First, the contested measure must directly affect the legal situation of the person concerned. Second, the measure may leave no discretion to the addressees who are entrusted with the task of implementing it, such that its implementation is purely automatic. This must result from EU rules alone without the application of other intermediate rules. (27)
53.      As the General Court correctly stated with reference to that case-law, (28) the contested decisions
directly affect the legal situation of Ms Corneli detrimentally as a shareholder in the bank. This concerns the exercise of her
participation, voting and other rights laid down in the bank’s statutes. Contrary to the complaints put forward by the ECB, no disregard, let alone distortion, of the relevant rules of the bank’s statutes relating to the rights of shareholders is discernible. In particular, the contested decisions affect the rights to elect the management and supervisory bodies of the bank (Articles 18 and 26), to convene the general meeting of shareholders and to set the agenda (Article 10(4)). This also applies to the conditions under which that general meeting or a certain proportion of the shareholders may hold the management and supervisory bodies of the bank liable
under Articles 2393 and 2393bis of the Italian Civil Code. (29)
54.      By placing the bank under temporary administration and extending that measure, the contested decisions suspended or restricted the exercise of those rights and thus directly interfered with the legal situation of the shareholders, including that of Ms Corneli. By that measure, the rights to elect the management and supervisory bodies of the bank and to convene the general meeting of shareholders and to set its agenda were transferred to the temporary administrators. The associated suspension or restriction of the relevant participation or voting rights of the shareholders follows from Article 70(2) in conjunction with Article 72(6) of the TUB, which provides for those rights to be transferred automatically to the temporary administrators. (30) In addition, by placing the bank under temporary administration pursuant to Article 72(9) of the TUB, the civil liability of the management and supervisory bodies of the bank was limited to cases of intentional fault or serious misconduct and could be brought before the courts only by the temporary administrators after prior approval by the Banca d’Italia. Furthermore, those administrators were given the right under Article 72(5) of the TUB, after prior approval by the Banca d’Italia, to bring actions for damages against members of the dissolved bodies of the bank or its managing director. The general meeting of the shareholders or some of them who hold a certain proportion of the share capital were therefore no longer able to bring such actions under Articles 2393 and 2393bis of the Italian Civil Code. (31)
55.      The General Court rightly considered there to be an interference with the participation or voting rights of the shareholders, including Ms Corneli’s, irrespective of the fact that the bank’s statutes provide
for a quorum, namely 1% of the shares held by those shareholders, in order for them to be exercised effectively in some cases. (32) All these participation or voting rights, like a citizen’s right to vote in democratic elections, have an inherent value, regardless of whether the exercise of those rights is actually sufficient to influence the bank’s key organisational or business decisions. The participation or voting rights include and protect the legal possibility to participate in such decision-making processes and to influence their outcome. This was rightly recognised by the General Court when it found that the argument of the ECB and the Commission ‘disregards … the right to vote which allows each shareholder to participate individually in the election of members [of the general meeting] who will sit in management and supervisory bodies’. (33) Because the bank was placed under
temporary administration, however, this
legal possibility of influencing its management automatically disappears.
56.      It is therefore irrelevant to the question whether a minority shareholder’s participation or voting rights have been adversely affected as such that he or she
may be able to achieve the relevant
quorums only with
other (minority) shareholders. The possibility of achieving a quorum is significant only to the subsequent question whether the exercise of participation or voting rights is also sufficient to achieve the desired legal effects (such as convening the general meeting or setting an agenda for the meeting). This cannot, however, call into question either the existence of those individual rights or the need to protect their exercise. (34) Consequently, as the General Court correctly found in paragraphs 43 to 45 of the judgment under appeal, the appellants’ objection that the respective
decision-making rights belong only to the
general meeting or some of the shareholders who meet a certain shareholding criterion, but not the individual
shareholder holding only voting rights,
must also be rejected.
57.      Furthermore, in the
judgment in Trasta Komercbanka, (35) the Court of Justice indirectly confirmed that in a case like the present one where – unlike the
withdrawal of authorisation at issue in that case – a bank is merely placed under temporary administration, the adverse effect on
shareholders’ rights
to participate in management
may be sufficient to regard them as
directly concerned. This is because in the latter case the adverse effect on those
rights is not consistent with the negative, purely
economic
effects
on the bank and its shareholders that would result from the withdrawal of
its authorisation
or
even its
liquidation. (36) The Court of Justice also expressly recognised that
even
the
decision to liquidate a
bank directly affects the right of the
shareholders
to participate in its management, since it entrusted that right to the liquidator. However, that
decision in the
Trasta Komercbanka
case was based exclusively on
Latvian law. It could not therefore be attributed either to EU law
or to the contested
decision of the
ECB
on the withdrawal of authorisation, with the result that the shareholders
were not directly concerned by that decision. (37) That said,
as the General Court rightly
held, (38) the situation is different in the case of an
ECB decision
to place a bank under temporary administration.
58.      The ECB
cannot rebut these
conclusions
by making reference to the judgment of the
European
Court for Human Rights (‘ECtHR’)
in Albert and Others v. Hungary. (39)
59.      First, the power to lodge an application under Article 34
ECHR, which was examined by the
ECtHR, is not identical to the conditions governing
legal standing to bring proceedings
under
the fourth paragraph of Article 263
TFEU. Second,
the ECtHR recognises, in principle, that the shareholders
of a bank are ‘directly affected’ for the purposes of Article 34 ECHR if the complaint is brought against measures affecting both that bank and the rights of its shareholders. That principle is limited only where either the bank and its shareholders
are so closely identified with each other that it would be artificial to distinguish between the two or if that is warranted by ‘exceptional circumstances’. Therefore, the ECtHR, like the Court of Justice in the judgment in Trasta Komercbanka (see point 57 above), recognised that acts directly affecting the rights of shareholders (to participate in the management of the bank) are distinct from measures directed (only) against the bank. Such acts not only harm the economic interests of the shareholders of that bank but also alter their legal position in its governance structure. (40)
60.      In the judgment in Albert and Others v. Hungary, the ECtHR did not consider that the rights of shareholders were ‘directly affected’. First, they could exercise those rights in respect of the contested merger of the two banks concerned during the associated decision-making process and voting. Second, because the size of the individual shareholdings was too small, those rights were insufficient to control any of the banks. The ECtHR therefore considered – by contrast with the cases previously decided by it concerning the artificial dilution of a shareholder’s voting power or the outright cancellation of shares (41) – that the measures at issue, which essentially related to corporate matters, had only an ‘incidental and indirect’ bearing on the rights of individual shareholders as such. (42)
61.      The particular situation of the merger of two banks is not, however, comparable to the situation in the present case, where a bank is merely placed under temporary administration. The two merged banks ceased existing in their previous form and operating on the market. A definitive structural change to a bank and its business activities and the associated economic effects are therefore different from temporary administration, where supervision of a bank’s business activities is transferred to a third party only temporarily, and from its effects on shareholders’ rights. The ECB’s argument based on the case-law of the ECtHR concerning bank mergers is not therefore applicable in this case and must be rejected.
62.      The participation or voting rights of the shareholders of the bank were, moreover, automatically suspended and restricted by the bank being placed under temporary administration and the extension of that measure in the contested decisions. An intermediate discretionary decision or additional implementing act was not required. (43) Consequently, the General Court could find, without erring in law, that those decisions were of direct concern to Ms Corneli within the meaning of the fourth paragraph of Article 263 TFEU. (44)
(b)    Individual concern
63.      The question whether Ms Corneli also satisfies the criterion of individual
concern must be examined only if the contested decisions do not constitute a ‘regulatory act’
within the meaning of
the third limb of the fourth paragraph of Article 263
TFEU which does not entail implementing measures. According to settled case-law, that concept extends to all non-legislative acts of general application. This requires that such an act applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in a general and abstract manner. (45)
64.      That condition is not met in this case. The contested decisions were addressed directly to the bank, which is a legal person, and also concerned the number of shareholders existing at the time they were adopted. It must therefore be examined whether Ms Corneli satisfied the criterion of individual concern in her capacity as a shareholder at the time.
65.      In my view, the General Court rightly recognised such individual concern in respect of Ms Corneli with reference to the case-law of the Court of Justice. (46)
66.      According to
settled
case-law,
persons other than those to whom a measure is addressed are individually concerned by it only if the measure affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed. (47) In the case of abstract/general measures
in particular, the
Court of Justice has held that the more or less precisely determinable number, or even the identity, of the persons
to whom a measure applies is not sufficient for it to be regarded as being of individual concern to them where it is established that that application takes effect by virtue of an objective legal or factual situation defined by it. (48)
67.      As the General Court rightly explained, (49) Ms Corneli
was distinguished individually in her capacity as a shareholder and thus as a member of the clearly defined group of all
shareholders
in the
bank
at the time when the contested (specific/individual) decisions
were taken. In addition, those
decisions
interfered with the exercise
of her participation and voting rights granted in that
capacity
by the bank’s
statutes (see point 53 et seq. above). They therefore concerned
Ms Corneli
not only in her
‘objective’
capacity as a
shareholder (in relation to
shareholders
in other
companies), as the appellants
claim, but as an owner of some of the share capital of the
bank,
who was clearly identifiable at that time. Furthermore, the specific purpose of that
measure was to suspend the participation and voting rights
of
the shareholders
in the
bank (and not
those of
shareholders
in other
companies) (see point 54 above) in order to
facilitate its
recovery.
68.      This assessment cannot be called into question by the argument put forward mainly by the ECB that around 35 000 shareholders in the bank should therefore be regarded as individually concerned and having legal standing to bring proceedings. As the General Court rightly held, the number of potential applicants concerned, depending on the type of the contested measure, is irrelevant if, at the time when it is adopted, they are clearly identifiable as members of a clearly defined group of persons and that measure (purposefully) interferes with their existing rights. (50) This holds a fortiori in the present case as the contested decisions are not measures of general application, but are specific/individual in nature (see points
64 and 66 above).
69.      The General Court therefore rightly held that the contested decisions were of individual concern to Ms Corneli within the meaning of the fourth paragraph of Article 263 TFEU. Consequently, there is no need to address the question whether the additional reasoning in respect of which the Commission raises complaints, in particular in paragraphs 73 to 75
of the judgment under appeal (in response to its submissions at first instance), is vitiated by an error of law.
2.      Continuation of the interest in bringing proceedings
70.      It must still be examined whether, in view of the termination of the temporary administration of the bank and the undeniable loss of her capacity as a shareholder, Ms Corneli is still able to claim, and has demonstrated, an interest (in bringing proceedings) with a view to the annulment of the contested decisions.
71.      The General Court did examine Ms Corneli’s own interest in bringing proceedings, which can be distinguished from that of the bank, and considered it to exist on the ground that the contested decisions affected the exercise of her rights as a shareholder. (51) That concerns in particular the rights to convene a general meeting in order to propose the bringing of an action or to add a point to that effect to its agenda. (52) This distinguishable interest in bringing proceedings for Ms Corneli is justified in her claim specifically on the ground of safeguarding the participation and voting rights connected with her status under company law as a shareholder. However, in this regard the General Court, in essence, merely reiterated the reasoning for direct concern in respect of Ms Corneli (see point 53 et seq.
above), without addressing the question whether, in view of the expiry of the period for the temporary administration of the bank provided for in the first extension decision, Ms Corneli continued to have such an interest in bringing proceedings until the date of delivery of the judgment under appeal. Nor did it require her to provide proof in this regard.
72.      The question whether an applicant has established his or her interest in bringing proceedings and the continuation of that interest is a question of law –which must be distinguished
from establishing legal standing to bring proceedings within the meaning of the fourth paragraph of Article 263 TFEU – which comes within the scope of the Court of Justice’s review in the context of an appeal. (53)
73.      According to settled case-law, an action for annulment brought by a natural or legal person is admissible only if that person has an interest in having the contested act annulled. The annulment must be capable of procuring an advantage for that person. That interest in bringing proceedings as an essential prerequisite for the admissibility of the action must continue until the final decision, failing which there will be no need to adjudicate. (54)
74.      It is settled case-law that the continued existence of an interest in bringing proceedings may be based on the fact that a judgment annulling the measure in question would support the preparation of an action for damages. (55) According to that case-law, the possibility of bringing an action for damages suffices to justify such an interest in bringing proceedings, in so far as that interest is not hypothetical. (56) It is immaterial in this regard whether the actions brought before the EU Courts or the national courts are likely to be well founded or have the same subject matter. Rather, the crucial factor is whether the annulment sought of the contested act has an effect on that other action, (57) that is to say, may be at least partially a preliminary issue in this regard.
75.      In response to the written and oral questions posed by the Court of Justice, Ms Corneli submitted that her interest in bringing proceedings, based on the loss of her shares and participation or voting rights as a shareholder in the bank, continued in particular with a view to future
actions for damages. She intends to bring such an action against the bodies and legal and natural persons involved in placing the bank under temporary administration, in its restructuring and in the sale of her shares; the annulment of the contested decisions by the EU Courts is a preliminary issue. In this regard, she rightly argued that the five-year period of limitation under Article 46 of the Statute of the Court of Justice for bringing an action for damages against, inter alia, the ECB pursuant to Article 268 in conjunction with the third paragraph of Article 340 TFEU has not yet expired. (58)
76.      The definitive loss of the shares and participation or voting rights
as such which has now occurred as a result of the restructuring of the bank can neither be attributed directly to the contested decisions, which merely place it under temporary administration, nor justify Ms Corneli’s interest in having them annulled. (59) Such an interest did exist, however, during the period of temporary administration when she was no longer able to exercise her participation or voting rights as a shareholder (see point 71 above).
77.      Ms Corneli
considers that – in addition to the definitive
loss
of her
shares and participation
or
voting rights – the interference with the latter
rights during the
period of temporary administration
also caused the damage suffered by her. In any event, such
causality
does not appear to be either hypothetical
or completely ruled out in the light of the measures
described by her and the
ECB
in response to the written questions posed by the
Court of Justice,
which were taken during the
period of temporary administration in
2019 and 2020 and ultimately led to the
recapitalisation of the
bank
by the FITD and the sale of
its
shares to BPER Banca (see point 25 above). Because of the discretion accorded to national
courts
in determining whether the
conditions
governing
liability
under the national
rules on damages
are satisfied, including
causality
between the unlawful
act and the damage incurred, it is not the task of the EU Courts to examine these questions closely in assessing the continuation of the
interest in bringing proceedings, let alone to rule out such causality
a priori (see
point 74 above). Rather, it is sufficient to state that the annulment
of
the contested decisions – which could possibly be confirmed by the
Court of Justice – on the basis of the
pleas of illegality raised by
Ms Corneli
may be a preliminary issue to subsequent
actions for damages.
78.      Ms Corneli therefore has a continuing interest in having the contested decisions annulled with a view to the preparation of an action for damages before the national courts or the EU Courts pursuant to the second paragraph of Article 263 in conjunction with the first paragraph of Article 264 TFEU.
3.      Interim conclusion
79.      In view of Ms Corneli’s continuing interest in bringing proceedings and legal standing to bring proceedings under the fourth paragraph of Article 263 TFEU, the General Court was therefore permitted to declare her action for annulment to be admissible.
80.      Consequently, the first ground of appeal raised by the ECB and by the Commission must be rejected as unfounded.
C.      Grounds of appeal concerning the substance of the action: infringement of the first subparagraph of Article 4(3) of Regulation No 1024/2013 in conjunction with Article 29 of Directive 2014/59 and Article 70(1) of the TUB?
1.      Order of examination
81.      The second ground of appeal raised by the ECB and the second to fifth grounds of appeal
raised by the Commission
relate, in essence,
to whether the General Court misunderstood the first subparagraph of Article 4(3)
of Regulation No 1024/2013
in conjunction with
Articles 28 and 29 of Directive 2014/59 and
Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB
in finding that
those provisions did not form a sufficient
legal basis
for placing the bank under
temporary administration and extending that measure in the contested decisions. In this regard, the General Court rejected the direct
application of the
provisions of the directive to the
bank
and an
interpretation of those
national
provisions
in compliance with the directive. (60)
82.      By the second ground of appeal raised by the ECB and the third and fourth grounds of appeal raised by the Commission, it is further alleged, in essence, that the General Court misunderstood Article 70(1) of the TUB and the fact that that provision can be interpreted in compliance with the directive, namely in accordance with Article 29 of Directive 2014/59. By the fourth and the fifth grounds of appeal, the Commission complains that this also resulted in the General Court infringing the second and third paragraphs of Article 288 TFEU and the first subparagraph of Article 4(3) of Regulation No 1024/2013, inter alia because it disregarded the ECB’s obligation under that provision to apply Article 29 of the directive directly. At the hearing, the ECB also argued, in response to the written and oral questions posed by the Court, that that provision of the
directive is directly and primarily applicable. It must therefore be complied with not only by national authorities but also by the ECB and the General Court. Both Ms Corneli and Italy made submissions on this point at the hearing.
83.      I will examine these complaints together below. In doing so, I
will also consider whether the General Court infringed
the second and third paragraphs of Article 288
TFEU
and
Article 84
of its
Rules of Procedure (second, fourth and fifth
grounds of appeal raised by the Commission).
84.      Since, under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013,
the ECB
is obliged to apply the relevant
EU law,
including
national law adopted to transpose
the law set out in directives, (61) I will begin by considering whether and to what extent this obligation to apply also holds for
the first sentence of Article 29(1)
of Directive 2014/59. It must be examined whether, in view of its normative structure and legal consequences, that
provision is directly applicable to the bank and its
shareholders (under 2) and must be complied with and applied not only by the national
authorities
but also
by the ECB and the General Court (under 3). The ECB
could have been empowered and possibly even
obliged, (62) by virtue of the
direct
applicability and primacy
of this provision of the directive,
to place the bank under temporary administration and to disregard the national
rules
in so far as they were contrary to that
provision. The General Court should not then have annulled the contested decisions
on grounds of a purported lack of
legal basis. In that case, it would no longer be relevant whether those
national
rules
can be interpreted in compliance with the directive.
85.      In the event that the direct
application of
the first sentence of Article 29(1)
of Directive 2014/59 is ruled out, I will then examine whether and to what extent the ECB
is obliged to interpret
national law
adopted to transpose the
directive in compliance with that directive (under 4). I
will subsequently address the question of how, in its
review
of the
ECB’s acts in this regard, the General Court needs to take into account the significance
of
national law and, above all, whether, within the
scope
of
the first subparagraph of Article 4(3)
of Regulation No 1024/2013,
it must treat
national law in the same way as
EU law (under 5). Lastly, I
will consider
the admissibility
of the related complaints
raised by the appellants
for the first time at the appeal stage (under 6).
86.      In the
judgment under appeal, the General Court rejected
both the direct
application of
provisions of the directive
to the detriment
of the individual and an
interpretation of
Article 70(1)
of the TUB
in compliance with the directive. (63) As
I will show below, there can be no objection to this approach, at least as regards the result to which it led.
2.      Direct applicability and primacy of the first sentence of Article 29(1) of Directive 2014/59?
(a)    Normative structure of the first sentence of Article 29(1) of Directive 2014/59
87.      According to settled case-law, in order to be regarded as having direct effect, a provision of a directive must appear, so far as its subject matter is concerned, to be unconditional and sufficiently precise. A provision is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States. A provision is regarded as sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms. (64) If those
conditions
are met, that provision may be relied upon before the national courts by individuals against the Member State where it has failed to implement the directive correctly. (65)
88.      The first sentence of Article 29(1)
of Directive 2014/59 requires Member States,
where replacement of the senior management or management body as referred to in
Article 28
of the
directive is deemed to be insufficient by the competent authority (here the ECB),
‘to remedy the situation’, to ensure that those authorities may appoint one or more temporary administrators to the institution. That
provision thus lays down a power for the
competent
authority to take such a measure by reference to the less
intrusive
measures
provided for in Article 28
of the
directive – which the ECB deems to be insufficient in the present case – such as the removal of the senior management or management body, in its entirety or with regard to individuals. These
measures all require inter alia that
there is a significant deterioration in the financial situation of the bank
concerned. As
is clear from the reference in Article 29
to
Article 28
of the directive, from the
combined
wording
of those provisions and
recital 40, (66) the criterion
of
significant deterioration
in the
financial situation is a uniform
condition
for the application of all
the remedial measures
with differing degrees of intervention which are laid down in both
provisions. Accordingly,
both the conditions
for the application of
the first sentence of Article 29(1)
in conjunction with
Article 28
of the directive and
the
legal consequences which it prescribes are
sufficiently precise
and unconditional.
89.      According to the settled case-law of the Court of Justice, the fact that the competent authorities enjoy a certain margin of appreciation or degree of discretion in assessing whether those conditions are met, on the one hand, and as regards the measures to be taken, on the other, and those measures must be proportionate under the second sentence of Article 29(1) of Directive 2014/59, cannot call into question the sufficiently precise and unconditional nature
of those provisions. According to that case-law, such a margin of appreciation or degree of discretion is neither a condition nor an additional requirement in respect of implementation or effects within the meaning of the principles referred to in point 87 above. (67)
90.      Rather, according to settled case-law, even though a directive leaves the Member States a degree of latitude when they adopt rules in order to implement it, a provision of that directive may be regarded as unconditional and precise where it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding its application. (68) According to that case-law, the unconditional nature of an obligation can therefore compensate for the requirement of precision. (69) That is the case here as regards the result to be achieved, namely placing the bank concerned under temporary administration in the case of a significant deterioration in its financial situation which cannot be remedied by less onerous measures for the purposes of Article 28 of the directive.
91.      On the basis of these criteria, the content
of
the first sentence of Article 29(1)
of Directive 2014/59 is therefore to be regarded
as sufficiently precise to be able, for example, to be applied by
a
national
supervisory authority and in subsequent legal proceedings by a national
court. It also follows, in principle,
that
those authorities must disapply any national legislation contrary to
that provision. (70) I will examine further below whether and to what extent this also applies to the ECB (point 106 et seq.). The arguments put forward by
Ms Corneli
in particular at the hearing, claiming
that the directive provides only for minimum harmonisation
in this regard and allows Member States broad
discretion in
its
implementation, must therefore be rejected.
92.      In paragraph 112
of the judgment under appeal, however, the General Court found that a directive cannot of itself impose obligations on an individual, with the result that direct
application (including
of Article 29(1)
of Directive 2014/59 and regardless of its
normative structure) to the detriment of the individual was
precluded.
93.      In my view, this
finding, about which the
Commission
in particular complains, is not vitiated by an error of law.
(b)    Direct applicability of Article 29(1) of Directive 2014/59 to the detriment of the bank and its shareholders?
94.      According to settled case-law, a directive cannot of itself impose obligations on individuals, but can only confer rights. Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from relying on the provisions of a directive against the Member State concerned. (71)
95.      Above all, a direct
application of
provisions of directives
is precluded where, through prohibitions and obligations to act or to refrain from acting laid down therein, it determines or aggravates the liability in criminal law of persons. (72) It would be incompatible with the principles
of
legal certainty and legality of penalties (nullum crimen, nulla poena sine lege) and
with the third paragraph of Article 288
TFEU, under which
directives
are addressed to the Member States and are binding on them alone, to require an individual to base his or her conduct solely on the provisions
of
a directive – in particular without regard to the national legislation adopted for its implementation – and to make himself or herself possibly subject to liability or punishment in the case of an infringement. (73) Nor is the direct
application of
provisions of directives which impose an obligation on one party (known as ‘horizontal effect’) possible, in principle, in civil
disputes
between
individuals. (74)
96.      The situation is different only for
administrative disputes which concern
‘triangular situations’. In this regard,
the Court has acknowledged, by way of exception, that a third party must tolerate certain State measures on the basis of
directly applicable
provisions of a directive on which an individual relies vis-à-vis the Member State. These include, for example, an environmental impact assessment which can result in the
revocation of a consent benefiting the third party (75) or
the
loss of some other (legal and financial) benefit to the third party. (76) This is merely an adverse repercussion of the implementation of such
provisions
on the legal position of third parties. It stems solely from the fact that the competent authority
must carry out an assessment pursuant to
directly applicable
provisions of a directive (77) or interpret and apply the legal basis
used in a certain way vis-à-vis all the persons concerned. (78)
97.      The present case
is also based on
an
administrative
dispute. However, there are no other grounds that would allow this
case-law
to be applied
or
even its
scope
to be extended.
98.      By contrast with the abovementioned
cases, this is not a triangular situation
which is merely detrimental to a third party. (79) Such a situation might exist if a creditor
or a customer of the
bank who considers his or her financial interests to be jeopardised on account of the
significant
deterioration
in the
financial
situation of the
bank relied on the first sentence of Article 29(1)
of Directive 2014/59 before the competent
authorities
or
courts
in order to cause those
authorities
to place the bank under
temporary administration.
99.      However, a
direct
application of
the first sentence of Article 29(1)
of Directive 2014/59 to the
bank and its
shareholders
would not result in a mere
adverse repercussion on the rights of third parties.
100. In contrast, the present
dispute
concerns the (bilateral) relationship
of
subordination, which is the classic situation in administrative law, whereby the bank
defends itself against an intervention measure directed against it by a public authority, namely being placed under temporary administration by the ECB. The competence to adopt this measure is among the powers of intervention which the
ECB
enjoys directly over banks within the single supervisory mechanism. In this respect, the ECB
to some extent replaces the
national
supervisory authorities, including on the basis of the obligation under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013 to apply national law
transposing Directive 2014/59
(for more detailed discussion, see
point 107 below). The measures taken by it
ultimately result in banks and their
shareholders
being made subject to certain
obligations to act, to refrain from acting or to tolerate certain acts.
101. It cannot be argued in this respect that shareholders like
Ms Corneli
are third parties in relation to the
bank who only have to bear (with her) the detrimental
consequences of the bank being placed under
temporary administration. This would not be consistent with the fact that there is a considerable overlap between the economic
interests
of the
bank and of its
shareholders. This is also an important reason
why a separate action brought by the
shareholders
against an ECB decision to withdraw a bank’s authorisation is inadmissible because those shareholders are not themselves directly
concerned (see
point 57 et seq. above). (80)
102. In so far as the ECB
is able to rely solely on a directly applicable
provision of a directive, such as
the first sentence of Article 29(1)
of Directive 2014/59 in this case, as the legal basis
for this intervention measure by a public authority, this would therefore result in unlawful
obligations
being imposed on individuals on the basis of
a
directive in accordance with the case-law mentioned in points
94 and 95. As is shown by the hierarchy of the measures in Articles 27 to 29 of Directive 2014/59 – which is envisaged for reasons of
proportionality – placing a bank under
temporary administration is a serious intervention measure
which interferes particularly heavily with the bank’s decision-making autonomy. As a result of the measure,
the exercise
of the
rights of its
management body and its
shareholders to (jointly) decide on banking operations is temporarily suspended and transferred to one or
more
temporary administrators
in the
interest
of the effective recovery
of the bank.
103. Consequently, the obligations of toleration on the
bank and its
shareholders which are associated with being placed under
temporary administration, as
the General Court rightly found, (81) would be the result of an unlawful
direct
application of this provision of the
directive to their detriment, unless those obligations can also be based
on the national transposing law, if appropriate in accordance with an interpretation in compliance with the directive.
104. The first sentence of Article 29(1)
of Directive 2014/59 is therefore directly applicable in accordance with the criteria recognised in case-law (see points
89 and 90 above). However, such
direct
application is not possible either to the detriment of the
bank
or to the detriment of its
shareholders. Accordingly, the General Court also cannot be criticised
for having infringed the second or third paragraphs of Article 288
TFEU
in this regard.
105. Should
the Court of Justice not agree with this analysis and take the view that, in principle, the first sentence of Article 29(1)
of Directive 2014/59 is
directly
applicable to the detriment of the
bank and its
shareholders, such as
Ms Corneli, I will examine
in the alternative
whether
not only a national authority
but
also the ECB was entitled or obliged to apply that provision of the directive
directly. That examination is also significant to the question, to be discussed subsequently, whether the ECB
is also an addressee of the obligation to interpret
national
law
in compliance with the directive (see point 115 et seq. below).
3.      In the alternative: direct application of the first sentence of Article 29(1) of Directive 2014/59 by the ECB?
(a)    The ECB as an addressee of directly applicable provisions of a directive
106. Under the third paragraph of Article 288 TFEU, directives are addressed to the Member States, which implement them in national law, exercising their discretion in the form and methods with a view to the result to be achieved. Accordingly, only in exceptional cases – under the conditions mentioned in point 94 above – has the case-law of the Court of Justice recognised the direct applicability of provisions of a directive to protect the rights of the individual and the associated obligation of the Member States’ authorities to comply with and implement those provisions.
107. In my view, however, it follows from the
ECB’s obligation under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013 to apply the relevant
EU law in its entirety, (82) and the national law adopted, to transpose
directives
that
that institution must, in principle, have regard to the direct
applicability and the associated
primacy (83) of
provisions of directives
in exactly the same way as the national
supervisory authorities (see point 91 above), even though it is not expressly referred to as an addressee
of such provisions in the third paragraph of Article 288
TFEU. Where, in the
exercise of its supervisory powers
over credit institutions
within the
single supervisory mechanism, the ECB replaces those
supervisory authorities (84) and is required even to apply the national law intended to transpose
directives, it should be treated
in the same way as them as an addressee of those rules. (85)
108. This also follows from the principles
of
maintaining uniformity
and the rule of law in the
EU legal order (Article 2
TEU), with which the ECB must comply as one of the EU institutions within the meaning of the second paragraph of
Article 13
TEU
in conjunction with
Article 132
TFEU. The objective of the obligation under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013
to apply the rules
is
‘ensuring high standards of supervision’. Only then is it possible to achieve the overarching aim of
‘unity and integrity of the internal market based on equal treatment of credit institutions’
while avoiding
regulatory arbitrage, as enshrined in the first paragraph of Article 1
of the regulation. (86) Accordingly, under
Article 6(1)
of the regulation,
the EIB is ‘responsible for the effective and consistent functioning of the SSM’.
109. As
the
present case
shows (for further details, see
point 115 et seq. below), a different, possibly even non-conforming transposition
of Directive 2014/59 in the Member States entails the risk of
excessive
fragmentation in the
implementation of the
relevant
supervisory rules
in the
internal market. This could adversely affect the uniform and effective exercise
of supervisory powers over
credit institutions
by the national
supervisory authorities and the ECB
within the
single supervisory mechanism. (87) In so far as the national transposing law is contrary to directly applicable
provisions of a directive, it must therefore, provided this is permissible to the detriment of individuals, (88) be disapplied by all supervisory authorities,
including
the
ECB,
in accordance with the principle
of the
primacy of
EU law
in order to safeguard those aims. (89)
(b)    Consequences of the direct applicability of the first sentence of Article 29(1) of Directive 2014/59 to the detriment of the bank and its shareholders
110. Should
the Court, contrary to my recommendation, recognise the direct
applicability
of
the first sentence of Article 29(1)
of Directive 2014/59 to the detriment of the
bank and its
shareholders
in this instance, the ECB
would therefore – in view of the
undisputed
significant
deterioration
in the
financial situation
of the
bank
within the meaning of
Article 28
of that
directive and the
insufficient
remedial measures taken up to that point – have been not only entitled, but even obliged, under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013, to place the bank under temporary administration
or to extend that measure
pursuant to that provision of the
directive
in conjunction with
Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB. In so far as
Article 70(1)
of the TUB
does not expressly refer to the condition
of
deterioration
in the
financial situation
of the
bank, but
to the qualified
condition
of expectation
of serious
financial losses – and this might not be in compliance with the first sentence of
Article 29(1)
of Directive 2014/59 (for further details, see
point 120 et seq. below) –,
that national provision
would be
inapplicable
by virtue of the
primacy
of that (directly applicable) provision of the
directive.
111. Under those circumstances, the General Court’s findings in paragraphs 91 to 114 of the judgment under appeal,
by
which
it criticises the
ECB
for adopting the contested decisions
on an insufficient legal basis,
would have to be regarded as being vitiated by an error of law. The ECB
would then have had to
rely on
Article 29
of Directive 2014/59 as a legal basis, apply that
provision of the directive
directly in conjunction with
Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB
and, by virtue of its
primacy, disregard the elements of the
national
provisions
that are incompatible with it. This was, in essence,
the approach taken by the ECB
in that it did not examine the qualified condition
of
expectation of serious
financial losses
for the
bank
provided for in Article 70(1)
of the TUB
and established only a deterioration
in its
financial
situation (see points
119 and 139 below).
112. The second ground of appeal raised by the ECB, as clarified by it
at the hearing, and the
fifth
ground of appeal raised by the Commission
would thus be well founded in this regard and would have to result in the judgment under appeal
being set aside.
113. As was explained in point 94 et seq. above,
however, I consider such a result to be inappropriate because it requires an unlawful
direct
application of
the first sentence of Article 29(1)
of Directive 2014/59 to the detriment of the bank and its shareholders. In case
the Court concurs with my analysis, I will also deal with the other
grounds of appeal.
114. In particular, should
the Court consider, as was proposed
in
points
94 to 104, that
the first sentence of Article 29(1)
of Directive 2014/59 may not be applied
directly to the detriment of the bank and its
shareholders, it must be examined, further, whether Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB
can and must be interpreted in accordance with that provision of the directive
and whether the General Court infringed
the third paragraph of Article 288
TFEU
by rejecting such interpretation in compliance with the directive (second
ground of appeal raised by the ECB
and fourth ground of appeal raised by the Commission). It must also be clarified in this regard whether and to what extent both
the ECB
and
the EU Courts
were and are required to take into account the interpretative practice
of the
national
courts mentioned by the appellants and Italy.
4.      Interpretation of Article 69octiesdecies(1)(b) and Article 70(1) of the TUB in compliance with the directive?
115. According to the recent case-law of the Court, ‘in order to ensure the effectiveness of all provisions of EU law, the primacy principle requires, inter alia, national courts to interpret, to the greatest extent possible, their national law in compliance with EU law’. (90)
116. In accordance with settled case-law, when applying national law, those courts are therefore required to interpret it, to the greatest extent possible, in the light of the text and the purpose of the provision of EU law applicable, taking into consideration the whole body of national law and applying the interpretative methods recognised by national law, with a view to ensuring that that provision is fully effective and to achieving an outcome consistent with the objective which it pursues. The obligation to interpret national law in a manner consonant with EU law has certain limits, however, and cannot, in particular, serve as a basis for an interpretation of national law contra legem. (91)
117. For the reasons set out in points
106 to 109 above, it is the task of not only the Member States’ authorities and courts but also in principle, on the basis of the requirement in the first subparagraph of Article 4(3) of Regulation No 1024/2013, the ECB – and,
subsequently, the General Court in
reviewing the lawfulness of its action – to interpret and apply the national law transposing Directive 2014/59
to the greatest extent possible
in compliance with the directive. (92)
118. In the first contested
decision, the ECB
merely relied on
Articles 69octiesdecies and 70 of the TUB
in conjunction with
Article 29
of Directive 2014/59 in order to place the bank under
temporary administration, without raising, let alone
examining, the question whether it is possible to
interpret those
national
provisions
in compliance with the directive. The General Court considered this to be an error of law, inter alia because, in its view, such an
interpretation is contrary to the clear
wording
of those
provisions, in particular of
Article 70
of the TUB. This is evident, in essence, from the following considerations.
119. As was stated
in point 88 above, the first sentence of Article 29(1)
of Directive 2014/59 is to be read
in conjunction with
Article 28 thereof. Placing a bank under
temporary administration
therefore likewise always requires that there is a significant deterioration in the financial situation of bank concerned. As the General Court stated in paragraph 88
et seq.
of the judgment under appeal, however, Article 69octiesdecies(1)(b)
of the TUB
alone expressly includes the condition
of
‘deterioration
in the situation of the bank’. By contrast,
Article 70(1)
of the TUB
refers to
infringements
or
irregularities
within the meaning of
Article 69octiesdecies(1)(b)
of the TUB, but does not specifically lay down that
condition. Instead,
Article 70(1)
of the TUB
contains a qualified
condition, under which
‘serious
financial losses’
must be expected. The General Court inferred from this
and
from the fact that the conditions
provided for in Article 70(1)
of the TUB
are exhaustively regulated that it is not possible to
interpret that provision in compliance with the directive. (93) Consequently, it essentially took the view that,
in the absence of proof that this qualified
condition was satisfied (94) and thus of a
sufficient
legal basis, the EIB was not authorised to place the bank under temporary administration
or to extend that measure in the contested decisions
solely
on the
ground
that
there was a significant deterioration in its financial situation.
120. The appellants and Italy, on the other hand, assert that Article 70(1) of the TUB, possibly in conjunction with Article 69octiesdecies(1)(b) of the TUB, can and even must be interpreted in accordance with the first sentence of Article 29(1) of Directive 2014/59. The General Court therefore erred in law in rejecting such an
interpretation.
121. It is therefore necessary to consider the precise
scope
of the obligation of the
ECB and the
General Court to interpret national law to the greatest extent possible
in compliance with the directive (see point 116 above). With regard to the complaints put forward by the appellants and Italy, it must be examined in particular whether and to what extent the General Court was required, to that end, to take into account the interpretative methods
recognised in national law and the related
case-law
of the
national
courts. (95)
122. This leads to a point which is fiercely disputed between the parties, namely whether
the national law to be applied by the ECB
under
the first subparagraph of Article 4(3)
of Regulation No 1024/2013,
in
its
implementation and subsequent
judicial review – like
EU law – is the object of a
‘question of law’
or, rather, constitutes a demonstrable
‘question of fact’. (96) The
General Court could be criticised for making
an error of law
only
if the possibility of interpreting
national
law
in compliance with the directive on the basis of the
interpretative methods
applicable at domestic level,
including
the
related
case-law, concerned a ‘question of law’ incorrectly assessed by it
or
it had at least obviously distorted that law in the
judgment under appeal. (97) This is also linked with the important preliminary question
of whether the
Court of Justice actually has jurisdiction under
the second subparagraph of Article 256(1)
TFEU to assess the
relevant
grounds of appeal. (98)
5.      National law for the purposes of the first subparagraph of Article 4(3) of Regulation No 1024/2013 as ‘law’ or ‘fact’?
123. The ECB, the Commission and Italy consider, in accordance with the contested decisions, that
in the light of the whole body of national law, the related interpretative methods and the case-law of the Italian courts, it is possible to interpret Article 70(1) of the TUB
in compliance with the directive. The ECB and the Commission
maintain in this regard, above all in the answers given by them at the hearing to a written question posed by the Court of Justice, that
national law, by virtue of the obligation to apply it under the first subparagraph of Article 4(3) of Regulation No 1024/2013, is to be treated in the same way as
EU law and compliance with it is subject to full review by the EU Courts, including by the Court of Justice in appeal proceedings under the second subparagraph of Article 256(1)
TFEU. The General Court, however, misunderstood this
legal
possibility of interpreting
Article 70(1)
of the TUB
in compliance with the directive.
124. This is disputed by Ms Corneli. She claims that the ECB
is required to interpret and apply national law
on the basis of the criteria recognised in the national legal order, even if it is contrary to EU law. This latter question might possibly be raised by way of infringement proceedings, but not in annulment or appeal proceedings, and must be treated as a question of fact. In any event,
Articles 28 and 29 of Directive 2014/59 have been correctly transposed in Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB.
125. The Court of Justice has previously found in two
judgments concerning the single
supervisory mechanism
that the application of
national
law
by (the
ECB
and) the General Court on the basis of
the first subparagraph of Article 4(3)
of Regulation No 1024/2013
in the context of an appeal
can be
examined
only to determine whether that
law was distorted in a way that is
obvious from the documents on its file. (99) Consequently, according to that
case-law – which in my view is correct – national law
cannot be treated in an
appeal in the same way as EU law
in its function as a standard of review.
126. Unlike
Advocate General Ćapeta and the
Commission, I do not consider that it is possible to treat the application of
national law
by the ECB, even
if
it is expressly prescribed by EU law, as a pure
question of law which would be substantially the same as
the question of
ensuring that ‘in the interpretation and application of the Treaties the law is observed’
within the meaning of
the second sentence of Article 19(1) TEU
or a ‘point of law’ in the second subparagraph of Article 256(1)
TFEU and the first paragraph of Article 58
of the
Statute
of the
Court of Justice. (100) To treat these
different
legislative sources
in exactly the same way would run counter to the
distribution of competences
between the Member States and the European Union in the Treaties
and the principle of conferral under
Article 5(2) TEU. This
distribution of competences
under the Treaties cannot
be altered by an obligation
under secondary legislation to
apply national
law, like that laid down in the first subparagraph of Article 4(3)
of Regulation No 1024/2013. Otherwise,
the consequence of this
provision would be that the national law
transposing
directives which guarantee the functioning of the
single
supervisory mechanism
would be fully
‘incorporated’ within the scope
of
EU law. (101) It would then have to be dealt with by the EU institutions and Courts
exclusively on the basis of the criteria applying to EU law. (102)
127. For these reasons relating to competence, the
principle of
iura novit curia
cannot apply to the EU Courts in relation to
national
law
in the same way as it does in relation to
EU law. The Court of Justice has
the ‘final word’ under
the second sentence of Article 19(1) TEU
in conjunction with
the second subparagraph of Article 256(1) and Article 267
TFEU
and
the first paragraph of Article 58 of its
Statute
only
in respect of the
interpretation and application of
EU law, the Treaties and secondary
law,
including
directives, while for
national
law (including that
adopted to transpose those
directives) it remains, in principle, with the Member States’
supreme or constitutional courts. (103) As
Ms Corneli
correctly
asserts, both infringement proceedings under
Article 258
TFEU (104) and
the
principle that
the Court of Justice does not have jurisdiction in preliminary ruling proceedings under
Article 267
TFEU
for the interpretation and application of
national
law (105) are a specific
expression of this
distribution of competences under the Treaties. This view is confirmed by the limits
on the
interpretation of
national
law
in compliance with directives recognised in the
Court’s case-law (see
points
115 and 116 above), which serve to safeguard the competence and the will of the Member State’s
legislatures.
128. In this regard I would also recall
my
detailed
views concerning the
application of national legislation and judicial review
in the field
of
EU law relating to trade marks, which also refers to national law. (106) In my view, no
principles
can apply here other
than those which the Court of Justice then specifically recognised for EU law relating to trade marks (107) and subsequently applied to the scope of
the first subparagraph of Article 4(3)
of Regulation No 1024/2013. (108) The Court of Justice
has also, however, taken into account the fact that national legal provisions cannot be treated in exactly the same way as
other
facts
in judicial proceedings
but, because of their hybrid character as legal facts, must be subject to special requirements of demonstration and proof. (109) It must also be borne in mind that a national provision
implementing
supervisory powers
within the
single supervisory mechanism is also, by virtue of the stipulation made in the first subparagraph of Article 4(3)
of Regulation No 1024/2013, a rule of law relating to the application of the Treaties for the purposes of
the second paragraph of Article 263
TFEU, the
application of which is, in principle, subject to
review
by the
EU Courts.
129. Lastly, this approach is similar to that taken by the
Court of Justice in its
case-law concerning the EU rules on State aid. According to that case-law, national law in the light of which it is to be assessed whether a Member State has granted prohibited aid for the purposes of Article 107(1) TFEU
must be appraised as a legal fact, in essence, in accordance with the applicable rules on demonstration and proof. (110)
130. It follows that the standard of review for national law before the EU Courts implies, in principle, that the party relying on national law must demonstrate and prove that that law should be interpreted and applied in the manner claimed by it in accordance with the national interpretative methods and the relevant case-law of the courts of the Member State in question. (111) The appellants’ argument that national law is equivalent to EU law within the
scope
of
the first subparagraph of Article 4(3)
of Regulation No 1024/2013 must therefore be rejected. The EU Courts are therefore
also not permitted in that
review, if necessary,
to raise and examine the relevant
national law
of their own motion. (112) This is even less so since a corresponding
prohibition on courts raising a point of their own motion
also applies, as a general rule, in
EU law. (113)
131. I will therefore examine below whether the appellants and Italy were permitted to demonstrate, or have demonstrated, in the appeal proceedings that, in accordance with the national interpretative methods and the relevant case-law, Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB may be interpreted in compliance with
Articles 28 and 29 of Directive 2014/59 and the judgment under appeal is therefore vitiated by an error of law in this regard. Because the interpretation and application of national law is, in essence, to be treated as a demonstrable question of fact, the complaints in this regard raised by the appellants at the appeal stage could
be inadmissible, as Ms Corneli also argues. Furthermore, the General Court could be criticised for erring in law in this regard only if it had infringed the rules on the presentation of evidence to this effect, in particular the distribution of the burden of proof and the standard of proof or – based on the standards recognised by the Court of Justice – had manifestly distorted the relevant facts or evidence in assessing the content and significance of the national provisions and their application. (114)
6.      Admissibility of the complaint concerning whether the interpretation of Article 69octiesdecies(1)(b) in conjunction with Article 70(1) of the TUB complies with the directive
132. The appellants, supported by Italy, made detailed submissions for the first time at the appeal stage regarding the interpretative methods under Italian law which, in their view, should be taken into account in respect of Article 69octiesdecies(1)(b) and Article 70(1)
of the TUB and on how the Italian courts have previously interpreted and applied those provisions, also having regard to Articles 28 and 29 of Directive 2014/59. (115) The relevant case-law of those courts originates from 2012, 2015, 2017 and 2021 and was therefore available at the time of the proceedings at first instance before the General Court. That case-law is
not, however, mentioned at all in the written pleadings of the
parties
at first instance. They also failed to put forward any
substantiated facts in this regard at the hearing
before the General Court in reply to its questions.
133. In its
response to
the fourth
plea
raised by
Ms Corneli
at first instance,
alleging an infringement
of
Article 70(1)
of the TUB, however, the ECB
could very probably have relied on such a submission in defence to prompt the General Court, above all, to deal with the question of the
interpretation and application of those
provisions
by the Italian
courts. In the absence of any such submission by the
ECB, the General Court neither assessed this question in the context of the
fourth
plea nor was it able to do so. As
was explained in point 130 above, the General Court was
neither empowered nor obliged to examine of its own motion the significance
of the
national
provisions
in the light of the
national
interpretative methods and case-law. It cannot therefore be criticised for having manifestly disregarded let alone distorted this.
134. First of all, it is not the task of the Court of Justice to assess facts and evidence
presented for the first time at the appeal stage, including the contested legal facts of the interpretation and application of the relevant national provisions, which were not or could not be part of the assessment by the
General Court. In addition, according to settled case-law, there is such a distortion of evidence only where, without recourse to new evidence, the assessment of the (already) existing evidence by the General Court is clearly incorrect. (116) Furthermore, a formal request by the appellants for the admission of new evidence would also have to be dismissed. Pursuant to the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, appeals lie on points of law only, to the exclusion of any assessment of the facts, with the result that new evidence is inadmissible at the appeal stage. (117)
135. Second, a distortion of the facts or the evidence must be obvious from the documents on the file, without there being any need to carry out a new assessment of the facts and evidence. Given the exceptional nature of a ground alleging that there has been a distortion of the clear sense of the facts or the evidence, Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 168(1)(d) of the Rules of Procedure provide that an appellant must indicate precisely the evidence the sense of which is alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. (118)
136. The Court of Justice has thus already clarified, with regard to an error of law
in applying
the first subparagraph of Article 4(3)
of Regulation No 1024/2013, which is alleged on appeal, that
it
has jurisdiction only to determine, first of all,
whether the General Court, on the basis of the documents and other evidence submitted to it, distorted the wording of the national provisions concerned or
of the national case-law relating to them, or of academic writings;
second, whether, as regards those particulars, it made findings that were manifestly inconsistent with their content;
and, third, whether, in examining all the particulars, it attributed to one of them, in order to establish the content of those provisions, a significance which is not appropriate in the light of the other particulars, where that is manifestly apparent from the documentation in the case file. (119)
137. A gross disregard for the case-law of the Italian courts in the judgment under appeal, which is claimed by the ECB in particular, is not apparent from the documentation in the case file at first instance, but at most from the complaints raised at the appeal stage. In the absence of any such submissions in the proceedings at first instance, it is also not evident that the General Court might have misunderstood the rules on evidence under EU law. This holds even if the General Court interpreted the national provisions as if they were provisions of EU law. (120)
138. Rather, the interpretation of
Article 70(1)
of the TUB given by the General Court (see point 119 above) seems sufficiently plausible, in the light of the
wording
of that provision, such that its refusal to interpret that
provision in compliance with the directive contra legem
can be regarded neither as a
manifest
distortion nor
as vitiated by an error of law for other reasons.
139. The qualified
condition
expressly laid down in Article 70(1)
of the TUB – by contrast with the
wording
of
Articles 28 and 29 of Directive 2014/59 – that a bank may also be placed under temporary administration, aside from in cases of
‘infringements or
irregularities’
within the meaning of
Article 69octiesdecies(1)(b)
of the TUB,
where
‘serious
financial losses [for the
bank] are expected’ (121) could certainly preclude its interpretation in compliance with the directive. First of all, it is not evident at first sight that the condition
of
‘deterioration
in the situation of the bank’ in Article 69octiesdecies(1)(b) of the TUB, which is not provided for in Article 70(1)
of the TUB, might be equivalent to the condition of
expectation of
serious financial losses. Second,
it is not readily apparent that, as the ECB and Italy
assert, the terms
‘infringements’ and ‘irregularities’ in Article 69octiesdecies(1)(b)
of the TUB, to which Article 70(1)
of the TUB
refers, always automatically imply a ‘deterioration
in the situation of the bank’. Such an
interpretation in compliance with the directive could be precluded in particular if, as the
General Court found (122) and Ms Corneli
asserts, it were correct that the qualified
condition of
expectation of
serious
financial losses is, according to the will of the
Italian
legislature, a specific
expression of the
principle
of
proportionality
and serves specifically to justify the more serious interference – compared with the primary, less onerous remedial measures – associated with placing a bank under
temporary administration.
In any event, in the contested decisions the ECB
did not expressly examine this qualified
condition
in order to justify placing the bank under
temporary administration. (123)
140. In the light of the
information
available
in the documents on the file, the General Court’s finding in the judgment under appeal that the ECB
did not rely on a sufficient
legal basis
is not therefore connected with a
manifestly
incorrect
interpretation of the
relevant
national
provisions. Nor is it evident that the General Court thereby infringed its obligation to interpret those provisions to the greatest extent possible
in compliance with the directive.
141. Consequently, the complaints put forward by the appellants and by Italy, in so far as they claim – in the context of the second to fifth grounds of appeal raised by the ECB and the third and fourth grounds of appeal raised by the Commission – an error of law in applying the interpretative methods under Italian law and a misunderstanding of the case-law of the Italian courts, must be rejected as inadmissible.
142. The Commission
cannot object – by
its
second
ground of appeal – that
Ms Corneli
challenged the interpretation of
Article 70(1)
of the TUB
given by the General Court in response to
its
fourth
plea
out of time, namely not until
the
reply
before the General Court, which was inadmissible under
Article 84(1)
of the Rules of Procedure
of the
General Court. This argument put forward by the
Commission
is based on a formalistic
comparison of the
wording
of two
paragraphs
of the application and the reply, respectively, which, in their introductions, each reproduce the content
of
Article 70
of the TUB. As Ms Corneli has argued, this content was described only imprecisely in the
application, without influencing the scope
of the
fourth
plea. Even
though
the infringement
of
Article 70(1)
of the TUB
was formulated in only vague terms
in that
plea and did not include the interpretation given in the
judgment under appeal in that form, it must also be borne in mind that
the first contested decision
was not communicated in full to Ms Corneli
until after the action had been brought. There was therefore no
new
plea
in law within the meaning of
Article 84(1)
of the Rules of Procedure
of the
General Court, but
at most a lawful
development
of the (fourth) plea
concerning
infringement
of
Article 70(1)
of the TUB, which had already been put forward in the
application. (124) The ECB
then made defence submissions without taking into account either the national
interpretative methods or the case-law
of the
Italian
courts.
143. The second ground of appeal raised by the Commission alleging that the General Court infringed Article 84(1) of its Rules of Procedure and the principle ne ultra petita must therefore be rejected as unfounded.
7.      Interim conclusion
144. Since, in my view, none of the grounds of appeal can be upheld, I
propose that both
appeals
be dismissed.
145. Because costs have not been applied for pursuant to
Article 138(1)
in conjunction with
Article 184(1)
of the Rules of Procedure, there is no need to decide on the costs of
Ms Corneli. As the appellants
have been unsuccessful, they must bear
their
own
costs
relating to the appeal proceedings
under
Article 138(1)
in conjunction with
Article 184(2)
of the Rules of Procedure. Italy, as intervener, must bear its own costs under
Article 140(1)
in conjunction with
Article 184(1)
of the Rules of Procedure.
146. Should
the Court of Justice, however, disagree with
my recommendation for a decision and consider the appeals
to be well founded, in particular because
the
fifth
ground of appeal raised by the Commission
is to be upheld (see points 81
to
112 above), the judgment under appeal would have to be set aside, the case would have to be referred back to the General Court for reconsideration and the costs would have to be reserved. As the General Court dealt with only the plea
of
infringement of
Article 70(1)
of the TUB
and the lack of
legal basis
and did not examine the other pleas which it summarised in paragraph 84
of the judgment under appeal, (125) the state of the proceedings
would not permit final judgment pursuant to
Article 61
of the
Statute
of the
Court of Justice. In my view, the Court of Justice does not have the necessary
information to rule definitively on those
pleas. This would also require, to some extent, an assessment of the facts and the evidence
which was not carried out by the General Court.
VI.    Conclusion
147. In the light of all the foregoing,
I propose that the Court should:
(1)      Dismiss the appeals in Joined Cases
C‑777/22 P and C‑789/22 P.
(2)      Order the European
Central Bank, the European
Commission and the Italian Republic
to bear their own costs.
1      Original language: German.
2      Judgment of 12 October 2022, Corneli v ECB (T‑502/19, EU:T:2022:627).
3      ECB-SSM-2019-ITCAR-11.
4      ECB-SSM-2019-ITCAR-13.
5      Judgment of 5 November 2019 (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923).
6      Judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 102 to 115).
7      Council Regulation of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).
8      Directive of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190).
9      See Witte, A., ‘The Application of National Banking Supervision Law by the ECB – Three Parallel Modes of Executing EU Law?’, Maastricht Journal of European and Comparative Law, 2014, Vol. 21, p. 89 (105 et seq.); Boucon, L., and Jaros, D., ‘The Application of National Law by the European Central Bank within the EU Banking Union’s Single Supervisory Mechanism: A New Mode of European Integration?’, European Journal of Legal Studies, 2018, Vol. 10, p. 155 (170 et seq.); Coman-Kund, F., and Amtenbrink, F., ‘On the Scope and Limits of the Application of National Law by the European Central Bank within the Single Supervisory Mechanism’, Banking & Finance Law Review, 2018, Vol. 33, p. 133 (147 et seq.); Di Bucci, V., ‘Quelques questions concernant le contrôle juridictionnel sur le mécanisme de surveillance unique’, in: Liber amicorum Antonio Tizzano – De la Cour CECA à la Cour de l’Union: le long parcours de la justice européenne, Giappichelli 2018, p. 316 et seq. (327 et seq.); Biondi, A., and Spano, A., ‘The ECB and the Application of National Law in the SSM: New Yet Old …’, European Business Law Review, 2020, Vol. 31, p. 1023 (1036 et seq.); Bobić, A., The Individual in the Economic and Monetary Union – A Study of Legal Accountability, Cambridge 2024, p. 165 et seq.
10      See
also in this regard Opinion
of
Advocate General Ćapeta in Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:296, point 26 et seq.).
11      GURI No 267 of
16 November 2016.
12      GURI No 176 of
31 July 2015.
13      See Decreto Legislativo (Legislative decree) No 385 of 1 September 1993 (GURI No 230 of 30 September 1993, Supplemento Ordinario No 92).
14      For details,
see paragraph 3
et seq. of the judgment under appeal.
15      This is a consortium of banks governed by private law which operates a deposit guarantee scheme; see judgment of
2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154, paragraph 7 et seq.).
16      Paragraph 33 et seq. of the judgment under appeal.
17      Paragraphs 88 to 100 of the judgment under appeal.
18      The General Court (in paragraph 107 of the judgment under appeal) appears to have in view specifically the qualified condition laid down in Article 70(1) of the TUB of the expectation of ‘serious financial losses’. This condition is mentioned, however, only when that provision is cited in paragraph 89 and in the third indent of paragraph 93 of the judgment under appeal, without being subsumed under it or it being explicitly alleged that the ECB failed to apply it.
19      Paragraphs 103 to 108 of the judgment under appeal.
20      By these cumbersome statements the General Court seems to mean that those directives and the national legislation adopted to transpose them form one single
legislative source.
21      Paragraphs 111 to 113 of the judgment under appeal.
22      See the summary in paragraph 84 of the judgment under appeal, which is based on a reorganisation of the five pleas formally raised in the application. In substance, the General Court declared the fourth plea, which alleged an infringement of Article 70 of the TUB
in particular, to be well founded.
23      Paragraphs 26 to 29 of the judgment under appeal.
24      First ground of appeal raised by the ECB in Case C‑777/22 P and first ground of appeal raised by the Commission in Case C‑789/22 P.
25      Second ground of appeal raised by the ECB in Case C‑777/22 P and second to fifth grounds of appeal raised by the Commission in Case C‑789/22 P.
26      See judgments of 23 April 2009, Sahlstedt and Others v Commission (C‑362/06 P, EU:C:2009:243, paragraph 22 and the case-law cited), and of 6 July 2023, Julien v Council
(C‑285/22 P, not published, EU:C:2023:551, paragraph 45 and the case-law cited). See also judgment of 20 June 2024, EUIPO v Indo European Foods (C‑801/21 P, EU:C:2024:528, paragraph 76 and the case-law cited).
27      See, to that effect, judgments of
30 June 2022, Danske Slagtermestre v Commission
(C‑99/21 P, EU:C:2022:510, paragraph 41 and the case-law cited), and of
5 November 2019, ECB and Others v Trasta Komercbanka and Others
(C‑663/17 P,
C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 103).
28      Paragraph 33 et seq. of the judgment under appeal.
29      For details, see paragraph 34 of the judgment under appeal.
30      See the second indent of paragraph 34 of the judgment under appeal.
31      See the third indent of paragraph 34 of the judgment under appeal.
32      See Article 18(9) and Article 26(7) of those statutes.
33      Paragraph 44 of the judgment under appeal.
34      See also paragraph 38 of the judgment under appeal.
35      Judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 110 and 111).
36      See, to that effect, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 109, 111 and 112); see also my Opinion in ECB and Others v Trasta Komercbanka and Others
(C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:323, point 119).
37      See, to that effect, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 113 to 115).
38      Paragraphs 47 to 53 of the judgment under appeal.
39      ECtHR, judgment of 7 July 2020, Albert and Others
v. Hungary (CE:ECHR:2020:0707JUD000529414).
40      See, to that effect, ECtHR, judgment of 7 July 2020, Albert and Others
v. Hungary (CE:ECHR:2020:0707JUD000529414, §§ 121 to 124, 132 and in particular 134).
41      ECtHR, judgment of 7 July 2020, Albert and Others v. Hungary (CE:ECHR:2020:0707JUD000529414), § 155, with reference to the judgments of 20 September 2011, Shesti Mai Engineering OOD and Others v. Bulgaria, No 17854/04 (CE:ECHR:2011:0920JUD001785404), and of
7 November 2002, Olczak v. Poland (CE:ECHR:2002:1107DEC003041796).
42      ECtHR, judgment of 7 July 2020, Albert and Others v. Hungary (CE:ECHR:2020:0707JUD000529414, §§ 154 and 155).
43      See, by analogy, judgment of
5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P,
C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 114).
44      Paragraphs 34 and 35 of the judgment under appeal.
45      Judgment of
6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 28 and 29 and the case-law cited). See also paragraph 74 of the judgment under appeal.
46      Paragraph 58 et seq. of the judgment under appeal.
47      See, to that effect, for example, judgment of 23 April 2009, Sahlstedt and Others v Commission (C‑362/06 P, EU:C:2009:243, paragraph 26), with reference to the judgment of 15 July 1963 (Plaumann v Commission, 25/62, EU:C:1963:17, at 107)).
48      See, to that effect, judgment of 23 April 2009, Sahlstedt and Others v Commission
(C‑362/06 P, EU:C:2009:243, paragraph 31 and the case-law cited).
49      Paragraphs 58 to 64 of the judgment under appeal.
50      Settled case-law; see, in particular, judgments of 28 June 2018, Andres (Insolvenz Heitkamp BauHolding) v Commission (C‑203/16 P, EU:C:2018:505, paragraph 44 et seq., with regard to the holders of a right,
acquired and certified by a tax assessment, to the application of a tax saving); of 27 February 2014, Stichting Woonpunt and Others v Commission (C‑132/12 P, EU:C:2014:100, paragraph 59), and of
13 March 2008, Commission v Infront WM (C‑125/06 P, EU:C:2008:159, paragraph 71).
51      Paragraph 77 et seq. of the judgment under appeal, under the heading ‘Legal interest in bringing proceedings’.
52      See, in particular, paragraphs 81 and 82 of the judgment under appeal.
53      See, to that effect, judgments of 13 July 2023, D & A Pharma v EMA (C‑136/22 P, EU:C:2023:572, paragraph 45); of 7 November 2018, BPC Lux 2 and Others v Commission (C‑544/17 P, EU:C:2018:880, paragraph 31); and of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 54 et seq., in particular paragraphs 62 and 68).
54      See, to that effect, the somewhat more cumbersome wording in the judgments of 13 July 2023, D & A Pharma v EMA
(C‑136/22 P, EU:C:2023:572, paragraphs 43 and 44 and the case-law cited), and of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraphs 55 to 58 and the case-law cited).
55      Judgments of 6 May 2021, Bayer CropScience and Bayer v Commission (C‑499/18 P, EU:C:2021:367, paragraph 40);
of
7 November 2018, BPC Lux 2 and Others v Commission (C‑544/17 P, EU:C:2018:880, paragraph 42); and of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraphs 69 and 70).
56      See judgments of 7 November 2018, BPC Lux 2 and Others v Commission (C‑544/17 P, EU:C:2018:880, paragraph 43), and of 17 September 2015, Mory and Others v Commission (C‑33/14 P, EU:C:2015:609, paragraph 79).
57      See, to that effect, judgment of 13 July 2023, D & A Pharma v EMA (C‑136/22 P, EU:C:2023:572, paragraphs 51 to 53 and the case-law cited).
58      See, with regard to a similar action for damages brought by minority shareholders in the bank, judgment of the General Court of 5 June 2024, Malacalza Investimenti and Malacalza v ECB (T‑134/21, EU:T:2024:362), in which an appeal is currently pending (Case C‑557/24 P).
59      See my Opinion in ECB and Others v Trasta Komercbanka and Others
(C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:323, point 104 et seq., in particular point 119).
60      Paragraphs 100 to 113 of the judgment under appeal.
61      See also Opinion of Advocate General Ćapeta in Anglo Austrian AAB v ECB
(C‑579/22 P, EU:C:2024:296, point 30).
62      With regard to this obligation of national authorities to apply a directly applicable provision of a directive, see judgment of 6 December 2005, ABNA and Others (C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 101 and the case-law cited).
63      See, in particular, paragraphs 112 and 113 of the judgment under appeal.
64      Judgment of 21 December 2023, Papier Mettler Italia (C‑86/22, EU:C:2023:1023, paragraph 76 and the case-law cited).
65      Judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraph 52 and the case-law cited).
66      This refers in general to the ‘deterioration of an institution’s financial and economic situation’.
67      See, inter alia, judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraph 53 and the case-law cited).
68      See, to that effect, judgments of 21 December 2023, Papier Mettler Italia (C‑86/22, EU:C:2023:1023, paragraph 77 and the case-law cited), and of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraph 53). See also my Opinion in Impact (C‑268/06, EU:C:2008:2, point 96).
69      See Kokott, J., ‘Zur unmittelbaren Wirkung des Unionsrechts’, Archiv des öffentlichen Rechts, 2023, Vol. 148, p. 496 et seq. (501).
70      See, by analogy, judgment of
21 December 2023, Papier Mettler Italia (C‑86/22, EU:C:2023:1023, paragraph 83). See also judgments of
9 September 2003, CIF (C‑198/01, EU:C:2003:430, paragraph 49);
of
29 April 1999, Ciola (C‑224/97, EU:C:1999:212, paragraph 30); and of
22 June 1989, Costanzo (103/88, EU:C:1989:256, paragraphs 31 and 32).
71      See judgments of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraphs 47 and 48); of
17 July 2008, Arcor and Others
(C‑152/07 to C‑154/07, EU:C:2008:426, paragraphs 35 and 36); and of
7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 57 and the case-law cited).
72      See judgment of 3 May 2005, Berlusconi and Others
(C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 73 to 77).
73      See also my Opinion in Berlusconi and Others
(C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 140 et seq.).
74      Settled case-law, see judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 42
et seq. and the case-law cited). See also judgment of 14 July 1994, Faccini Dori (C‑91/92, EU:C:1994:292, paragraph 20 et seq.).
75      See judgment of
7 January 2004, Wells (C‑201/02, EU:C:2004:12, paragraph 57 et seq.).
76      See judgments of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraphs 49, 50 and 53), and of
17 July 2008, Arcor and Others
(C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 38).
77      As with the environmental impact assessment in the
judgment of
7 January 2004, Wells
(C‑201/02, EU:C:2004:12, paragraph 57 et seq.).
78      With regard to the consideration of certain criteria for the calculation of contributions or costs influencing the level of tariffs in the telecommunications sector, judgments of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic (C‑508/14, EU:C:2015:657, paragraph 46 et seq.), and of
17 July 2008, Arcor and Others
(C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 35 et seq.). See also, with regard to VAT law,
judgment of
8 June 2006, Feuerbestattungsverein Halle (C‑430/04, EU:C:2006:374, paragraph 28
et seq.).
79      Di Bucci (footnote 9 above), p. 329, on the other hand, considers that in this context the case-law concerning the prohibition on directly applying provisions of a directive which impose obligations on the individual is not pertinent, in general, on account of the obligation to apply legislation in the first subparagraph of Article 4(3) of Regulation No 1024/2013.
80      Judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 102 to 115).
81      Paragraph 112 of the judgment under appeal.
82      See, inter alia, the clearer English
and
French
versions: ‘all relevant EU law’; ‘toutes les dispositions pertinentes du droit de l’Union’ (emphasis added).
83      Accordingly, recital 34 of
Regulation
No 1024/2013 states that
this obligation to apply ‘is without prejudice to the principle of the primacy of EU law’.
84      This not always the case, as is shown in particular by the fifth paragraph of Article 1 of
Regulation
No 1024/2013 (see also recitals 13 and 15): ‘This Regulation is without prejudice to the responsibilities and related powers of the competent authorities of the participating Member States to carry out supervisory tasks not conferred on the ECB by this Regulation’.
85      Similarly Coman-Kund and Amtenbrink (footnote 9 above), pp. 148 to 150, and Di Bucci (footnote 9 above), p. 328; for a different approach, Witte (footnote 9 above), p. 106.
86      See also, to that effect, recital 12 of
Regulation
No 1024/2013: ‘… a single supervisory mechanism should ensure that the Union’s policy relating to the prudential supervision of credit institutions is implemented in a coherent and effective manner, that the single rulebook for financial services is applied in the same manner to credit institutions in all Member States concerned, and that those credit institutions are subject to supervision of the highest quality, unfettered by other, non-prudential considerations’.
87      See also Biondi and Spano (footnote 9 above), p. 1040
et seq.
88      This would be conceivable for banks that are controlled by the State; see, with regard to the
‘vertical’
direct
applicability of provisions of directives,
judgment of
10 October 2017, Farrell (C‑413/15, EU:C:2017:745).
89      The ECB has always taken this view; see ECB, Feedback Statement – Responses to the public consultation on a draft Regulation and draft Guide of the European Central Bank, March 2016, p. 10, No 35. See also Boucon and Jaros (footnote 9 above), pp. 170 to 172 and 183; Coman-Kund and Amtenbrink (footnote 9 above), pp. 153 and 156.
90      Judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 70 and the case-law cited; for the first time judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 57; emphasis added). Still without reference to the principle of primacy, see the (in my view more correct) judgment of 8 November 2016, Ognyanov (C‑554/14, EU:C:2016:835, paragraph 59: ‘… This obligation to interpret national law in compliance with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they rule on the disputes before them’). With regard, specifically, to the obligation to interpret in compliance with a directive, see judgment of 11 April 2024, Agencia Estatal de la Administración Tributaria (Exclusion of claims governed by public law from discharge of debt) (C‑687/22, EU:C:2024:287, paragraph 32 and the case-law cited).
91      See, to that effect, judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraphs 71 and 72 and the case-law cited). See also judgment of 21 December 2023, Generalstaatsanwaltschaft Berlin (Conviction in absentia) (C‑398/22, EU:C:2023:1031, paragraph 48), and my Opinion in Heureka Group (Online price comparison services) (C‑605/21, EU:C:2023:695, points 79 to 82).
92      See also Coman-Kund and Amtenbrink (footnote 9 above), p. 158; Biondi and Spano (footnote 9 above), pp. 1042 to 1044; Di Bucci (footnote 9 above), p. 327.
93      This is evident from an overall examination of the
findings
made in paragraphs 94, 105 to 108, 112 and 113 of the judgment under appeal.
94      As has already been stated in footnote 18 above, this statement is only implicit in the judgment under appeal.
95      For a doubting view, see Di Bucci (footnote 9 above), p. 327.
96      For details, see Opinion
of
Advocate General Ćapeta in Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:296, point 26
et seq.).
97      See, to that effect, judgments of
12 September 2024, Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:731, paragraphs 75, 85, 86, 98 and 114), and of
15 September 2022, PNB Banka v ECB (C‑326/21 P, not published, EU:C:2022:693, paragraph 71).
98      See judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraphs 44 to 46).
99      See, to that effect, judgments of
12 September 2024, Anglo Austrian AAB v ECB
(C‑579/22 P, EU:C:2024:731, paragraphs 85 and 86), and of
15 September 2022, PNB Banka v ECB (C‑326/21 P, not published, EU:C:2022:693, paragraph 71).
100      Under that provision, an appeal may lie only on the ground of ‘the infringement of EU law by the General Court’.
101      Such partial ‘incorporation’
might possibly occur in legal disputes before the EU Courts based on an arbitration clause. Article 272
TFEU
enables national civil law
to become the subject of
judicial review
of a contract between the EU institutions and undertakings; see, for example,
judgment of
16 July 2020, ADR Center v Commission (C‑584/17 P, EU:C:2020:576, paragraphs 88 and 89), and my
Opinion in ADR Center v Commission (C‑584/17 P, EU:C:2019:941, point 121
et seq.).
102      See to that effect, however, Di Bucci (footnote 9 above), p. 330. The General Court also appears to take this view in paragraphs 111 and 112 of the judgment under appeal when it describes the EU law referred to in the first subparagraph of Article 4(3) of Regulation No 1024/2013, including directives and the national law transposing them, (implicitly) as flowing from a single legislative source (see above, point 31).
103      See, to that effect, judgment of 9 April 2024,
Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision)
(C‑582/21, EU:C:2024:282, paragraphs 31 and 49 et seq.). See also my Opinion in Edwin v OHIM (C‑263/09 P, EU:C:2011:30, points 49 et seq. and 56).
104      This is reflected particularly in the allocation of the burden of setting out and proving the facts
between the Commission and the Member State concerned and in the latter’s duties of cooperation in determining the actual significance and specific application of national law, which the Commission cannot carry out autonomously in the absence of its own investigative powers. See, in this regard, judgments of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water)
(C‑481/22, EU:C:2024:85, paragraph 72 et seq.); of 2 September 2021, Commission v Sweden (Waste water treatment plants) (C‑22/20, EU:C:2021:669, paragraph 143 et seq.); of 22 April 2021, Commission v Austria (Lease of a building not yet constructed) (C‑537/19, EU:C:2021:319, paragraph 55 et seq.);
of 17 December 2020, Commission v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029, paragraph 111 et seq., with regard to an administrative practice), and of 9 July 2015, Commission v Ireland
(C‑87/14, EU:C:2015:449, paragraph 23 and the case-law cited).
105      See, for example, judgments of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision)
(C‑582/21, EU:C:2024:282, paragraphs 31, 55 and 58); of 27 April 2023, Legea (C‑686/21, EU:C:2023:357, paragraph 24 and the case-law cited); of 20 October 2022, Ekofrukt (C‑362/21, EU:C:2022:815, paragraph 25); and of 7 July 2016, Genentech (C‑567/14, EU:C:2016:526, paragraph 22 and the case-law cited).
106      Opinions in Edwin v OHIM (C‑263/09 P, EU:C:2011:30, point 42 et seq.) and subsequently in EUIPO v Szajner (C‑598/14 P, EU:C:2016:915, point 44 et seq.).
107      Judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraph 44 et seq.); subsequently judgment of 27 March 2014, OHIM v National Lottery Commission (C‑530/12 P, EU:C:2014:186, paragraph 34 et seq.). See also judgment of 5 April 2017, EUIPO v Szajner (C‑598/14 P, EU:C:2017:265, paragraph 35 et seq.).
108      See
judgments of
12 September 2024, Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:731, paragraphs 85 and 86 and the case-law cited), and of
15 September 2022, PNB Banka v ECB (C‑326/21 P, not published, EU:C:2022:693, paragraph 71).
109      Judgment of 27 March 2014, OHIM v National Lottery Commission (C‑530/12 P, EU:C:2014:186, paragraph 37: ‘… it is not apparent …
that a rule of national law …
should be treated as a purely factual matter …’). See also Prek, M., and Lefèvre, S., ‘The EU Courts as “national” courts: National law in the EU judicial process’, Common Market Law Review, 2017, Vol. 54, No 2, p. 369 (394: ‘“hybrid” or sui generis approach’).
110      See
judgments of
10 September 2024, Commission v Ireland and Apple Sales International (C‑465/20 P, EU:C:2024:724, paragraphs 174 to 176);
of
14 December 2023, Commission v Amazon.com and Others (C‑457/21 P, EU:C:2023:985, paragraphs 19 to 22);
of
5 December 2023, Luxembourg and Others v Commission (C‑451/21 P and C‑454/21 P, EU:C:2023:948, paragraphs 76 to 79);
of
8 November 2022, Fiat Chrysler Finance Europe v Commission (C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 72
et seq., in particular paragraph 82);
of
21 December 2016, Commission v Hansestadt Lübeck (C‑524/14 P, EU:C:2016:971, paragraph 20 and the case-law cited);
of
3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217, paragraph 77
et seq.); and of
21 December 2011, A2A v Commission (C‑318/09 P, not published, EU:C:2011:856, paragraph 125).
111      This view is again shared by Advocate General Ćapeta in her Opinion in Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:296, point 47 et seq.), although she considers national law to be substantially the same as EU law in respect of the first subparagraph of Article 4(3) of Regulation No 1024/2013.
112      See, however, Opinion of Advocate General Ćapeta in Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:296, points 44 to 46). See also Opinion of Advocate General Pitruzzella in Crédit Mutuel Arkéa v ECB (C‑152/18 P and C‑153/18 P, EU:C:2019:505, point 120, with reference, inter alia, to the judgment of 13 December 2017, Crédit Mutuel Arkéa v ECB, T‑712/15, EU:T:2017:900, paragraph 132).
113      See, inter alia, judgment of
25 October 2017, Commission v Italy (C‑467/15 P, EU:C:2017:799, paragraph 15 and the case-law cited). The situation
could
be different as regards the
scope
of the rule
on which the contested measure
is based; see final judgment of the General Court of
12 June 2019, RV v Commission (T‑167/17, EU:T:2019:404, paragraphs 59 to 61), and Opinion
of Advocate General Pikamäe in EUIPO v Neoperl
(C‑93/23 P, EU:C:2024:751, point 72
et seq.).
114      See,
to that effect,
judgments of
12 September 2024, Anglo Austrian AAB v ECB (C‑579/22 P, EU:C:2024:731, paragraphs 86 and 114);
of
15 September 2022, PNB Banka v ECB (C‑326/21 P, not published, EU:C:2022:693, paragraph 71);
of
5 April 2017, EUIPO v Szajner (C‑598/14 P, EU:C:2017:265, paragraph 56); and of
5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraph 53). With regard, in general, to the limited power of review of the
Court of Justice in appeal proceedings, see, inter alia,
judgment of
18 June 2020, Dovgan v EUIPO (C‑142/19 P, not published, EU:C:2020:487, paragraph 44).
115      See, in particular, the references to the judgments of the
Tribunale Amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), No 1627 of 1 February 2017, No 11766 of
15 November 2021 and No 13520 of 27 December 2021, and of the Consiglio di Stato (Council of State, Italy) No 6583 of 20 December 2012 and No 835 of 19 February 2015. Even though, in my view, it is ultimately not relevant, I would add, for the sake of completeness, that those judgments actually seem to support the interpretation presented by the appellants and by Italy and thus the approach taken by the ECB in the contested decisions. Ms Corneli hardly addresses this case-law of the administrative courts, but essentially confines herself to a literal interpretation advocated by academic opinions and the general case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which gives precedence to this interpretative method in civil law.
116      See, to that effect, judgments of 11 January 2024, Foz v Council (C‑524/22 P, EU:C:2024:23, paragraph 38 and the case-law cited), and of 23 March 2023, PV v Commission (C‑640/20 P, EU:C:2023:232, paragraph 78 and the case-law cited); emphasis added.
117      See, to that effect, judgment of 19 June 2019, RF v Commission (C‑660/17 P, EU:C:2019:509, paragraph 30 and the case-law cited).
118      See, to that effect, judgments of 12 November 2020, Pethke v EUIPO (C‑382/19 P, not published, EU:C:2020:917, paragraph 62 and the case-law cited), and of 18 June 2020, Dovgan v EUIPO (C‑142/19 P, not published, EU:C:2020:487, paragraph 44 and the case-law cited).
119      See, to that effect, judgment of
12 September 2024, Anglo Austrian AAB v ECB
(C‑579/22 P, EU:C:2024:731, paragraph 86 and the case-law cited).
120      This cannot be ruled out in respect of the findings made in paragraph 88 et seq. of the judgment under appeal. With regard to the method of interpretation under EU law, see, inter alia, judgments of
12 January 2023, Österreichische Post (Information regarding the recipients of personal data) (C‑154/21, EU:C:2023:3, paragraph 29), and of 15 March 2022, Autorité des marchés financiers (C‑302/20, EU:C:2022:190, paragraph 63).
121      See also paragraph 92 of the judgment under appeal.
122      See paragraph 108 of the judgment under appeal.
123      Thus, the wording of the first contested decision refers, in essence, to the deterioration in the financial situation of the bank (sections
1.5, 2 and 3.1); however, in section
1.3 under the heading ‘Significant accumulation of losses’ (‘Significativo accumulo di perdite’), it deals with the accumulation of losses of EUR 1.6 billion between December 2014 and September 2018 (1.3.1) and the sizeable increase in borrowing costs due to write-down of loans (‘riduzioni del valore dei crediti’) of EUR 428 million in 2017 and EUR 219 million in 2018 (1.3.2). Lastly, in sections
2.6 (Assessment of proportionality) and 3.1 (Procedure), the aim of avoiding a further deterioration in the situation of the bank is discussed.
124      See, with regard to the settled case-law on this point, for example, judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (C‑56/18 P, EU:C:2020:192, paragraph 66 and the case-law cited).
125      See paragraph 114 of the judgment under appeal.