62023TJ0366_RES
Case T‑366/23
YH
v
European Central Bank
Judgment of the General Court (Fourth Chamber, Extended Composition) of 19 November 2025
(Economic and monetary policy – Prudential supervision of credit institutions – Directive 2013/36/EU – Regulation (EU) No 1024/2013 – Specific supervisory tasks assigned to the ECB – Assessment of acquisitions of qualifying holdings – Opposition to the acquisition of a qualifying holding – Right to be heard – Concept of ‘qualifying holding’ – Reputation and professional competence of the proposed acquirer – Rights protected by the Charter – Proportionality)
Actions for annulment – Jurisdiction of the EU judicature – Review of the legality of a decision of the European Central Bank (ECB) on the acquisition of a qualifying holding in a credit institution – Scope – Review of the preparatory acts or proposals of the national authorities – Included
(Art. 263 TFEU; Council Regulation No 1024/2013, Arts 4(1)(c), 6(2) and 15(3))
(see paragraphs 36-38)
Fundamental rights – Charter of Fundamental Rights – Right to good administration – Right to be heard – Scope – Decision of the European Central Bank (ECB) on the acquisition of a qualifying holding in a credit institution – Proposed acquirer’s right of reply and right to comment
(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Regulation No 1024/2013, Art. 22(1), first subpara.; European Central Bank Regulation No 468/2014, Art. 31)
(see paragraphs 146-149)
Economic and monetary policy – Economic policy – Supervision of the EU financial sector – Single supervisory mechanism – Prudential supervision of credit institutions – Specific tasks conferred on the European Central Bank (ECB) – Procedure for assessing acquisitions of qualifying holdings – Criterion requiring that the proposed acquirer of those holdings must be of good repute – Concept – Assessment of the reputation and integrity of a member of the proposed acquirer’s family – Included
(European Parliament and Council Directive 2013/36, Arts 23(1)(a) and (b) and 91(1))
(see paragraphs 248, 253, 254, 282, 287-289, 296, 297)
Fundamental rights – Charter of Fundamental Rights of the European Union – Right to property – Scope – Supervision of the European Union’s financial system – Decision of the European Central Bank (ECB) on the acquisition of a qualifying holding in a credit institution – Objective of ensuring the stability of the financial system and the sound and prudent management of the credit institution – Whether permissible
(Charter of Fundamental Rights of the European Union, Arts 17(1) and 52(1))
(see paragraphs 350-355)
Résumé
In this judgment, the General Court dismisses YH’s action against a decision of the European Central Bank (ECB) opposing the acquisition of a qualifying holding in a credit institution (‘the contested decision’). On this occasion, the Court provides clarifications as regards the ECB’s monitoring of the acquisition of qualifying holdings, the possibility for the ECB to supplement the statement of reasons for a decision after it has been notified, and the assessment of the reputation of a proposed acquirer in the light of the integrity and reputation of a member of his or her family.
M.M. Warburg & Co (AG & Co.) KGaA (‘the Target’) is a ‘less significant’ credit institution, supervised directly by the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority, Germany; ‘BaFin’) and owned by the family of the applicant’s husband.
The company 1. Max Warburg Beteiligungsgesellschaft mbH (‘MWB 1’) holds 40.24% of the capital in the financial holding company of the MMWarburg & CO prudential group, MMWarburg & CO Gruppe GmbH (‘Warburg Gruppe’). Warburg Gruppe in turn holds 100% of the capital in the Target, which itself held, at the time of the contested decision, 100% and 60% of the capital, respectively, of two other target companies, which are also credit institutions.
The applicant’s husband wished to organise the transfer of his holding in the capital of the Target to his children. As a first step, he transferred 87.5% of the capital of MWB 1 to the company Familie Max Warburg Vermögensverwaltung KG (‘FMWV’), for the benefit of his children, thus retaining 12.5% of the capital of MWB 1, with a golden share conferring on him 51% of the voting rights in that company. In addition, FMWV and the applicant’s husband undertook to exercise their voting rights in a uniform manner (‘the pooling agreement’). As a second step, the applicant was to receive her husband’s golden share, thereby acquiring 0.01% of the capital of MWB 1 and 51% of the voting rights therein (‘the proposed acquisition’), and become a party to the pooling agreement in respect of MWB 1.
On 3 April 2023, the applicant and her counsel met representatives of the ECB to discuss the issues raised by the proposed acquisition. On 4 April 2023, BaFin proposed to the ECB that the proposed acquisition not be opposed. On 12 April 2023, the ECB sent the applicant a draft decision opposing the proposed acquisition on the ground that she did not fulfil the legal requirements for acquiring a qualifying holding in a credit institution. On 21 April 2023, the applicant submitted her comments on the draft decision.
By email of 5 May 2023, the ECB sent the applicant the contested decision, which confirmed the substance of its draft decision, stating its reasons for considering that the applicant did not fulfil the legal criteria for acquiring, through MWB 1, a qualifying holding in the Target of 100% of the voting rights and 100% of the capital. It took the view, first, that the applicant did not meet the requirement of good repute, finding (i) that she was under the influence of her husband, whom the ECB regarded as of bad repute, and (ii) that she did not have adequate professional competence. Second, the ECB found that the applicant was not sufficiently financially sound to provide the Target with the necessary own funds. Third, the ECB found, in particular, that the proposed acquisition did not permit effective prudential supervision of the Target.
On 8 May 2023, after several reminders sent by the ECB seeking confirmation from the applicant’s counsel that the contested decision had been received, her counsel replied, disputing the validity of the notification of that decision. By email of 12 May 2023, the applicant again challenged the validity of the notification of the contested decision and requested that she be sent the separate assessment note addressing her comments on the draft decision (‘the separate assessment note’), referred to in the contested decision. She received that note on 15 May 2023.
Findings of the Court
As a preliminary point, as regards the applicant’s claim, in her plea in law alleging infringement of the rules of the procedure for assessing qualifying holdings, that the period prescribed for carrying out that assessment had expired, with the result that the proposed acquisition is deemed to be approved, the Court points out that, in any event, each party to the procedure must comply with the rules applicable to it. Thus, while the notification of the proposed acquisition was subject to the conditions laid down in German law, in accordance with the Kreditwesengesetz, (
1
) the notification of a prudential supervisory decision by the ECB, for its part, had to comply with the legal framework of Framework Regulation No 468/2014. (
2
) Having regard to the legal and factual context of the present case, in so far as the applicant sent the information requested by email to an address which was not intended for that purpose, while announcing that she was sending it in physical format and carrying out that action, BaFin did not err in law when it took the view that the notification in writing was complete on the day on which the information sent in physical form by the applicant was received, namely 3 February 2023. Accordingly, the Court rejects that complaint and proceeds to examine the contested decision.
In the first place, as regards the alleged insufficiency of the statement of reasons for the contested decision, the Court states, first, that the facts relating to the proposed acquisition by the applicant of a qualifying holding in the Target, in view of the Warburg Gruppe’s shareholders acting in concert, are set out in the contested decision. It also notes that the criteria justifying the ECB’s opposition to the proposed acquisition are clearly examined in that decision, both as regards the applicant’s reputation and solvency, and as regards the Target’s compliance with prudential requirements. In addition, the contested decision was adopted in a context which was known to the applicant, in that she herself notified the data relating to the proposed acquisition and was consulted prior to the adoption of that decision. Therefore, the Court takes the view that the contested decision specifies the relevant facts and points of law on which it is based, without it being necessary to have recourse to the separate assessment note or to the ECB’s subsequent explanations, and that an adequate statement of reasons was thus provided.
Second, as regards the claim that the separate assessment note could not be taken into account in the review of the legality of the contested decision, the Court observes that that note was communicated to the applicant 10 days after notification of the contested decision and that it was expressly referred to in that decision. It takes the view that, in the light of the case-law, that note may be regarded as forming part of the context of the contested decision and be taken into account in assessing the statement of reasons for that decision. Moreover, although the late sending of the separate assessment note, 10 days after notification of the contested decision, is the result of an internal clerical error within the ECB, the fact remains that the contested decision expressly refers to that note, which set out the reasons available at the time of the adoption of the contested decision. Thus, the applicant was informed of its existence as soon as the contested decision was notified and could therefore request that it be sent to her as soon as she received that decision. Five working days after receiving the contested decision, the applicant requested the note. The ECB sent it to her the next working day.
The Court therefore finds that the separate assessment note being sent by the ECB to the applicant at a later date did not deprive the latter of the opportunity to acquaint herself with it, and that the applicant has not demonstrated, or even alleged, that the late communication of the separate assessment note adversely affected her rights.
In the second place, as regards the interpretation of the concept of a ‘qualifying holding’, the Court recalls that Regulation No 575/2013, to which the CRD IV Directive (
3
) refers, defines a qualifying holding as a direct or indirect holding in an undertaking which represents 10% or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of that undertaking. It states that the concept of ‘acquisition of a qualifying holding’ in a credit institution is an autonomous concept of EU law.
In this respect, the Court states that it is apparent from Regulation No 1024/2013 (
4
) that an assessment of the suitability of any new owner prior to the purchase of a qualified holding in a credit institution is an indispensable tool for ensuring the continuous suitability and financial soundness of owners of those institutions. Furthermore, on account of the ECB’s broad discretion in the exercise of its prudential supervisory tasks, which include monitoring the acquisition of qualifying holdings, the Court is to verify that the contested decision is not based on materially incorrect facts and is not vitiated by a manifest error of assessment.
In the present case, the ECB states, in the contested decision, that Warburg Gruppe’s shareholders are acting in concert and that together they indirectly hold 100% of the shares in the capital of the Target and of the voting rights in it. It adds that, as a result of the pooling agreement, it is also presumed that there is acting in concert at the level of MWB 1. The ECB deduces from this that the applicant will acquire 100% of the shares and voting rights in the Target, which she will be able to control indirectly. More specifically, in the separate assessment note examining the criteria set out in the Joint Guidelines, (
5
) the ECB concludes that, in view of that acting in concert, the voting rights must be attributed to the proposed acquirer in full. In that regard, account is taken of the agreement concluded between the shareholders of Warburg Gruppe, the relationships within the Target group, the sources of financing of Warburg Gruppe’s shareholders and the past voting patterns of those shareholders.
As regards the shareholders’ agreement concluded at Warburg Gruppe level, the Court finds, first of all, that the analysis in the separate assessment note is not obsolete, since Warburg Gruppe’s new articles of association provide, like the shareholders’ agreement referred to, that the transfer of shares to persons outside the shareholder families requires the prior consent of the ‘company’ by means of a decision of the general meeting. Similarly, the Joint Guidelines do not exclude this type of agreement from its scope. Next, as regards two other members of the applicant’s husband’s family holding shares in Warburg Gruppe, the Court notes that the applicant does not deny the facts relied on by the ECB, nor does she submit any evidence that would call into question the ECB’s assessment of those family relationships. In addition, as regards the relationships between the companies of the same group, it finds that the applicant does not call into question the facts set out by the ECB, since that foundation’s shareholding in Warburg Gruppe is not among the factors taken into account by the ECB. As regards the consideration of a single source of financing, although the applicant claims that, where the Joint Guidelines provide that the use of the same source of financing may constitute an indication of acting in concert, what is meant is external sources of financing, and not internal sources such as the dividends distributed by the Target, the Court notes that the Joint Guidelines (
6
) state that ‘the use by different persons of the same source of finance for the acquisition or increase of holdings in the target undertaking’ is an indicator of acting in concert, and make no distinction between ‘external’ and ‘internal’ sources. Lastly, as regards past voting patterns, the Court observes that the applicant has neither produced evidence contradicting the ECB’s position nor justified why she was unable to produce such evidence.
Consequently, the Court holds that the ECB did not commit a manifest error of assessment but found, on the basis of relevant evidence, that there was acting in concert between MWB 1 and the other shareholders of Warburg Gruppe. Accordingly, the Court rejects the applicant’s challenge to the acquisition of a qualifying holding in terms of voting rights, adding that voting rights and capital rights are referred to in the alternative by the CRD IV Directive (
7
) and Regulation No 575/2013 (
8
) in order to establish the acquisition of a qualifying holding.
In the third and last place, as regards the reputation of a proposed acquirer and the integrity and reputation of a person who has a close family relationship with that proposed acquirer, the Court recalls that the Joint Guidelines emphasise that the competent authority may take into consideration the integrity and reputation of any person linked to the proposed acquirer, meaning any person who has, or appears to have, a close family or business relationship with the proposed acquirer. Moreover, it is apparent from the case-law that the CRD IV Directive does not preclude the proposed acquirer’s lack of good repute from resulting from the latter’s relations with a third party. (
9
)
In the present case, the Court points out, first of all, that the ECB stated in the contested decision that qualifying holding procedures served to ensure the sound management of institutions and overall financial stability, and that the assessment of the reputation of the proposed acquirer is an ex ante assessment and necessarily requires a prediction of the future conduct of the proposed acquirer. Facts must indicate an abstract risk, that is to say, the likelihood of an intended breach.
Next, it finds that the ECB stated, in the contested decision, first, that it had very serious doubts about the reputation of the applicant’s husband, in the light of the reassessment to which he had been subject by BaFin in 2019, second, that the applicant appeared to be financially dependent on her husband, third, that the applicant had no banking experience and, fourth, that the applicant had openly admitted also to seeking the advice of her husband, with whom she would be part of a pooling agreement. Therefore, the ECB infers from this that there are serious concerns that the applicant’s husband will exert material influence over the Target, through the applicant, following the proposed acquisition.
Lastly, the Court notes that, on the basis of the Joint Guidelines and the case-law, the ECB may take into consideration, when assessing the reputation of a proposed acquirer, the integrity and reputation of a person who has a close family relationship with that proposed acquirer, such as, here, the applicant’s husband.
(
1
)	Kreditwesengesetz (Law on credit institutions – KWG) of 9 September 1998 (BGBl. 1998 I, p. 2776), as amended by the Law of 22 February 2023 (BGBl. 2023 I Nr. 51).
(
2
)	Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1).
(
3
)	Point 33 of Article 3(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338, ‘the CRD IV Directive’).
(
4
)	Recital 22 of Council Regulation (EU) No 1024/2013 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).
(
5
)	Paragraph 4.6 of the Joint Guidelines of the European Banking Authority (EBA), the European Insurance and Occupational Pensions Authority (EIOPA) and the European Securities and Markets Authority (ESMA) on the prudential assessment of acquisitions and increases of qualifying holdings in the financial sector, published on 20 December 2016 (JC/GL/2016/01; ‘the Joint Guidelines’).
(
6
)	Paragraph 4.6(b)(4) of the Joint Guidelines.
(
7
)	Article 22(1) of the CRD IV Directive.
(
8
)	Point 36 of Article 4(1) of Regulation No 575/2013.
(
9
)	Judgment of 10 July 2024, PH and Others v ECB (T‑323/22, EU:T:2024:460, paragraphs 325 and 326).