62021TJ0134
JUDGMENT OF THE GENERAL COURT (Tenth Chamber)
5 June 2024 (
*1
)
(Non-contractual liability – Economic and monetary policy – Prudential supervision of credit institutions – Decisions taken by the European Central Bank (ECB) concerning Banca Carige – Articles 4 and 16 of Regulation (EU) No 1024/2013 – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Legitimate expectations – Conflict of interests – Proportionality – Equal treatment – Right to property – Plea of illegality)
In Case T‑134/21,
Malacalza Investimenti Srl, established in Genoa (Italy),
Vittorio Malacalza, residing in Genoa,
represented by L. Boggio, S. Carbone and A. D’Angelo, lawyers,
applicants,
v
European Central Bank (ECB), represented by R. Bax and A. Pizzolla, acting as Agents,
defendant,
supported by
European Commission, represented by D. Triantafyllou, P. Messina and A. Steiblytė, acting as Agents,
intervener,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia, President, M. Jaeger, L. Madise, P. Nihoul (Rapporteur) and S. Verschuur, Judges,
Registrar: P. Nuñez Ruiz, Administrator,
having regard to the written part of the procedure,
further to the hearing on 26 September 2023,
gives the following
Judgment
1
By their action under Article 268 TFEU, the applicants, Malacalza Investimenti Srl and Mr Vittorio Malacalza, seek compensation in respect of the harm which they claim to have suffered as a result of the unlawful conduct of the European Central Bank (ECB) in the exercise of its supervisory function of Banca Carige (‘the bank’) between 2014 and 2019.
Background to the dispute
2
The bank is a major 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 pursuant to Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).
3
The applicants are shareholders of the bank. When the present action was brought, Malacalza Investimenti held 15288774 ordinary shares, representing approximately 2.016% of the bank’s capital, and Mr Malacalza held 121017 ordinary shares, representing approximately 0.011% of the bank’s capital.
4
Mr Malacalza was also a member and vice-president of the bank’s board of directors from 31 March 2016 to 3 August 2018.
5
On 23 April 2015, in order to remedy the capital shortfall that had been identified by the full assessment carried out by the ECB in 2014, the extraordinary meeting of the bank’s shareholders approved a capital increase of EUR 850 million.
6
By decision of 9 December 2016, the ECB adopted an early intervention measure which consisted of requesting that the bank submit, by 28 February 2017, a strategic plan and an operational plan to reduce the issue of non-performing loans, with a clear indication of the measures to be taken and the schedule to be followed in order to achieve that objective (‘the early intervention measure’).
7
In order to meet the objectives set out in the early intervention measure, in September 2017 the bank’s board of directors approved a recapitalisation plan which included, inter alia, a capital increase of EUR 560 million to be implemented by the end of 2017.
8
Following the approval of the prospectus by the Commissione nazionale per le società e la borsa (National Companies and Stock Exchange Commission, Italy), the capital increase was finally completed on 21 December 2017, for an amount of EUR 544 million.
9
On 28 December 2017, the ECB notified the bank of its decision establishing the prudential requirements for 2018.
10
Subsequently, the bank tried unsuccessfully to increase its own funds in order to meet the applicable requirements. Thus, an attempt to issue capital instruments failed three times in 2018 (in March, May and June) owing to a lack of interest on the part of investors.
11
Those failures exacerbated tensions within the bank’s board of directors over how to remedy non-compliance with own funds requirements and implement the 2017 recapitalisation plan referred to in paragraph 7 above. Those disagreements led to a number of resignations, including that of Mr Malacalza, which made it necessary to appoint a new board of directors. Thus, at the extraordinary general meeting of 20 September 2018, the bank’s shareholders appointed new directors and appointed Mr Modiano to the post of chair and Mr Innocenzi to that of managing director.
12
In view of the bank’s failures in its attempt to place its capital instruments on the market, by decision of 14 September 2018 (‘the own funds decision’) the ECB refused to approve the capital conservation plan drawn up by the bank and asked it to submit and obtain approval from its board of directors, by 30 November 2018 at the latest, of a new plan to restore and ensure sustainable compliance with the financial requirements by 31 December 2018 at the latest.
13
In order to respond to that request, the bank’s board of directors adopted, on 12 November 2018, a capital strengthening plan involving two stages, namely, first, the issue of Class 2 subordinated bonds and, second, an increase in capital subject to shareholder approval.
14
The first step was carried out with a bond subscription in the amount of EUR 318.2 million by the Fondo interbancario di tutela dei depositi (Voluntary Intervention Fund of the Interbank Deposit Protection Fund, Italy) (‘the FITD’) and EUR 1.8 million by Banco di Desio e della Brianza.
15
As part of the second stage, an extraordinary general meeting was convened on 22 December 2018 to approve a capital increase by exchange of subordinated bonds for newly issued shares, the objective being to strengthen Tier 1 capital.
16
However, the latter proposal was not accepted following the opposition expressed at that meeting by shareholders holding 70% of the capital. Before taking their decision, the shareholders in question wished to receive communication of, first, the business plan and, second, the balance sheet relating to the business activities carried out by the bank in 2018.
17
Following those events:
–
on 23 December 2018, the bank stated by press release that following the rejection of the proposal made by its board of directors, the vice-chair and another member of that board had resigned with immediate effect;
–
on 2 January 2019, in another press release, the bank announced the resignation, with effect from that date, of five other members of the board of directors including the chairman, Mr Modiano, and the managing director, Mr Innocenzi;
–
those resignations led to the disqualification of that board of directors pursuant to Article 18(12) of the bank’s statutes and Article 2386 of the Italian Civil Code.
18
In accordance with the bank’s statutes, the four members of the board of directors who had not resigned remained in office to ensure its day-to-day management.
19
On 1 January 2019, the ECB decided to place the bank under temporary administration (‘the decision to place the bank under temporary administration’) pursuant to the provisions of decreto legislativo n. 385 – Testo unico delle leggi in materia bancaria e creditizia (Legislative Decree No 385 consolidating the laws on banking and credit) of 1 September 1993 (GURI No 230 of 30 September 1993, and Ordinary Supplement to GURI No 92; ‘the Consolidated Law on Banking’), transposing Article 29 of 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 (OJ 2014 L 173, p. 190), with the following effects:
–
dissolution of the bank’s board of directors and replacement of former members by three temporary administrators, including Mr Modiano and Mr Innocenzi;
–
dissolution of the bank’s supervisory committee and replacement of the former members by three other persons;
–
assignment to the new bodies of a task consisting of taking the necessary steps to ensure that the bank once again complies with asset requirements on a sustainable basis.
20
On 2 January 2019, the adoption of the decision to place the bank under temporary administration was announced by means of a press release, and the trading of securities issued or guaranteed by the bank was suspended by the Italian National Companies and Stock Exchange Commission during the period of application of that decision or until the restoration, in particular as a result of the competent authorities’ new initiatives in the field of prudential supervision, of a comprehensive disclosure framework for securities issued or guaranteed by the bank.
21
Following a reassessment of the conditions on the basis of which the decision to place the bank under temporary administration had been taken, that measure was extended three times – on 29 March, 30 September and 20 December 2019 – in order to stabilise the bank’s situation and to allow for conclusion of the operation to strengthen the capital base.
22
On 9 August 2019, the bank, Cassa Centrale Banca – Credito Cooperativo Italiano, the FITD and the FITD’s voluntary intervention fund signed a framework agreement defining the characteristics of a business plan which provided, in particular, for a capital increase of EUR 700 million and the issue of new Class 2 subordinated bonds.
23
By letter of 18 September 2019, the ECB considered, on the basis of Article 56 of the Consolidated Law on Banking, that the proposed capital increase was not contrary to the sound and prudent management of the bank.
24
Thus, on 20 September 2019, an extraordinary general meeting of the bank’s shareholders was convened to approve the capital increase of EUR 700 million. The proposed capital increase was approved at the shareholders’ meeting. Malacalza Investimenti did not attend the meeting.
25
On 31 January 2020, after the implementation of the capital increase, at the bank’s ordinary general meeting of shareholders, a new board of directors and a new supervisory board were elected. Following those elections, the temporary administrators and the supervisory committee transferred, on the same date, the administration of the bank to the newly elected bodies, thus putting an end to the temporary administration of that credit institution, which had lasted approximately 13 months in total.
Forms of order sought
26
The applicants claim that the Court should:
–
order the ECB to pay, by way of compensation for the harm suffered:
–
Malacalza Investimenti, the sum of EUR 870525670 or any other greater or lesser amount which is deemed fair, to be determined, if necessary, ex aequo et bono,
–
Mr Malacalza, the sum of EUR 9546022 or any other greater or lesser amount which is deemed fair, to be determined, if necessary, ex aequo et bono,
–
to each of the applicants, the costs and fees incurred for the purposes of the present proceedings;
–
to declare, in so far as necessary, the invalidity of the measures alleged to be unlawful;
–
order the ECB, by way of measures of inquiry:
–
to produce several inspection reports, draft decisions and decisions,
–
to produce, among the prudential supervisory documents, several minutes of meetings of the bank’s board of directors;
–
order, by way of a measure of inquiry:
–
the preparation of an expert’s report on:
–
the finding, in respect of the financial years 2015 to 2019, of data relating to the situation of other Italian banks and of the European Union, as regards in particular the relevant items in the profit and loss accounts and asset positions, exposure levels and provisioning for non-performing loans, liquidity situations, own funds requirements and the Supervisory Review and Evaluation Process (SREP) imposed on each of those banks by the ECB and by the competent national central banks, any possible withdrawal of non-performing loans and the comparison between those data and the bank’s corresponding data, in respect of the same financial years 2015 to 2019,
–
the assessment of the equal or lack of equal treatment of the bank and the various banks by the supervisory authorities at EU and national level,
–
the assessment of the amount of the losses suffered by the applicants.
27
The ECB, supported by the European Commission, contends that the Court should:
–
declare the application unfounded;
–
dismiss the requests for measures of inquiry;
–
order the applicants to pay all the costs.
Law
The claim for damages
28
In their action, the applicants claim that the European Union has incurred non-contractual liability on the basis of eight instances of unlawful conduct:
–
the first, on account of the sufficiently serious breach by the ECB of Italian law when it failed to intervene to rectify misleading statements made about the soundness of the bank by its directors;
–
the second, on account of the sufficiently serious breach by the ECB of EU rules in its relations with the bank’s board of directors;
–
the third, on account of the sufficiently serious breach by the ECB of Italian law as regards the approval, on 18 September 2019, of an increase in capital contrary to the pre-emption rights provided for in the bank’s statutes;
–
the fourth, on account of the sufficiently serious breach by the ECB of Italian law in relation to the appointment of temporary administrators who had a conflict of interest;
–
the fifth, on account of the sufficiently serious breach by the ECB, when adopting the early intervention measure, of various rules and principles;
–
the sixth, on account of the sufficiently serious breach by the ECB, in the own funds decision, of the principle of proportionality as a result of the imposition on the bank of a period of time that was too short to allow it to comply with the own funds requirements imposed on it;
–
the seventh, on account of the sufficiently serious breach by the ECB of the principle of the protection of legitimate expectations as a result of the assurances given to shareholders as to the situation of the bank;
–
the eighth, on account of the sufficiently serious breach by the ECB of the shareholders’ right to property as a result of the significant reduction in the value of their shareholdings in the bank.
29
As a preliminary point, it should be recalled that the European Union is a union based on the rule of law in which its institutions, bodies, offices and agencies are subject to review of the conformity of their acts, inter alia, with the Treaty and the general principles of law (judgment of 23 April 1986, Les Verts v Parliament, 294/83, EU:C:1986:166, paragraph 23; see also judgment of 26 June 2012, Poland v Commission, C‑336/09 P, EU:C:2012:386, paragraph 36 and the case-law cited).
30
Thus, individuals who consider themselves affected by acts adopted by the ECB in the context of its tasks relating to the prudential supervision of credit institutions may call into question the validity of those acts under Articles 263, 267 or 277 TFEU, where the conditions laid down for the application of those provisions are satisfied.
31
In addition, individuals who consider that the ECB has failed to address to them an act other than a recommendation or an opinion may call into question the failure of that institution to act, in accordance with the arrangements laid down in Article 265 TFEU.
32
Furthermore, individuals may claim that the European Union has incurred non-contractual liability, and claim compensation under the third paragraph of Article 340 TFEU where they consider that they have suffered harm as a result of the ECB’s conduct in the context of its prudential supervision tasks.
The conditions under which the European Union may incur non-contractual liability in the context of the prudential supervision of credit institutions by the ECB
33
In that regard, it should be borne in mind that according to settled case-law, it follows from Article 76 and Article 84(1) of the Rules of Procedure of the General Court that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita (see judgment of 17 September 2020, Alfamicro v Commission, C‑623/19 P, not published, EU:C:2020:734, paragraph 40 and the case-law cited).
34
In order for the European Union to incur non-contractual liability, individuals must establish that three conditions are satisfied cumulatively: the unlawfulness of the conduct attributable to the institution or its servants in the performance of their duties, the fact of damage and the existence of a causal link between the alleged conduct and the damage complained of (judgment of 20 September 2016, Ledra Advertising and Others v Commissionand ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 64; see also judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 65 and the case-law cited).
35
In the present case, the Court considers it appropriate to examine whether the first of those conditions is satisfied. That is the case, according to the case-law, where the contested conduct involves a rule of law intended to confer rights on individuals and where the breach alleged against the institution is sufficiently serious (judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 42; of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 67; and of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 69).
– The first requirement, concerning the nature of the rules which may give rise to the non-contractual liability of the European Union
36
As regards the first requirement, the case-law makes it clear that a rule of law is intended to confer rights on individuals where it creates an advantage for individuals which could be defined as a vested right, is designed for the protection of their interests or entails the grant of rights to individuals, the content of those rights being sufficiently identifiable (see judgments of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph 140 and the case-law cited, and of 9 February 2022, QI and Others v Commission and ECB, T‑868/16, EU:T:2022:58, paragraph 90 and the case-law cited).
37
In order for the European Union to incur liability, the protection offered by the rule invoked must be effective vis-à-vis the person who invokes it. A rule cannot be taken into account if it does not confer any right on the person who invoked it, even if it confers a right on other natural or legal persons (judgment of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph 77; see also judgment of 9 February 2022, QI and Others v Commission and ECB, T‑868/16, EU:T:2022:58, paragraph 90 and the case-law cited).
– The second requirement, concerning the type of infringement required for the European Union to incur non-contractual liability
38
As regards the second requirement, the test held to be decisive for determining whether a breach is sufficiently serious is whether the institution concerned gravely and manifestly disregarded the limits on its discretion (judgments of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 43; of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 67; and of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 69).
39
Thus, a determining factor in deciding whether there has been a sufficiently serious infringement is the extent of the discretion available to the institution (judgment of 12 July 2005, Commission v CEVA and Pfizer, C‑198/03 P, EU:C:2005:445, paragraphs 65 and 66).
40
For that purpose, it is for the Courts of the European Union to take account of the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable or intentional (judgment of 3 March 2010, Artegodan v Commission, T‑429/05, EU:T:2010:60, paragraph 62).
41
In those circumstances, mere errors of assessment cannot of themselves be sufficient to define an infringement as manifest and grave (see, to that effect, judgment of 9 September 2008, MyTravel v Commission, T‑212/03, EU:T:2008:315, paragraph 85).
42
In the present case, it should be observed that the conduct complained of was adopted by the ECB in the exercise of the prudential supervision tasks conferred on it in order to enable it to ensure the safety and soundness of credit institutions.
43
In order for the ECB to be able to perform those tasks, Article 4 of Regulation No 1024/2013 confers on the ECB the power to carry out transactions such as authorising and withdrawing banking licences, monitoring the application of existing regulatory prudential requirements and internal risk assessment systems, the possibility of imposing additional own funds requirements and the possibility of imposing appropriate governance rules.
44
When carrying out those operations, the ECB, as stated in recital 17 of Regulation No 1024/2013, is to assess the risk profile of the banks concerned and determine, for each, the events likely to affect it, taking into account the diversity of institutions, their size and their business models.
45
Such analyses involve making assessments which, on account of their complex nature, justify granting the ECB, according to the case-law, a broad discretion (see, to that effect, judgments of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 86; of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 55; and of 13 December 2017, Crédit mutuel Arkéa v ECB, T‑712/15, EU:T:2017:900, paragraph 181).
46
In conclusion, it follows from the case-law examined above that, in the present case, if the applicants wish to establish the non-contractual liability of the ECB, they must prove to the requisite legal standard that the ECB seriously and manifestly disregarded, beyond the discretion conferred on it, a rule of EU law conferring rights on individuals.
47
In order to determine whether such an infringement has been committed, the Courts of the European Union must take into account, in the light of the information put forward by the applicants, the broad discretion conferred on the ECB in the exercise of its prudential supervision tasks.
– The ECB’s request, with the support of the Commission, to refer to the general principles common to the laws of the Member States to define the rules on non-contractual liability applicable to the European Union in the field of prudential supervision
48
The ECB, supported by the Commission, asked the Court to define, on the basis of the national law in force in the Member States, the rules on non-contractual liability to which the European Union should be subject in the field of prudential supervision.
49
In the first place, the ECB suggested applying at EU level the case-law established in the judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606), in which the Court of Justice held that national legislation excluding the non-contractual liability of national prudential supervisory authorities where they acted within the framework of rules adopted in the public interest was compatible with EU law.
50
In that regard, it should be noted that the judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606), cannot be applied directly to the present dispute since it concerns national authorities, whereas a case concerning the non-contractual liability of an EU institution has been brought before the General Court, even though, under Article 4 of Regulation No 1024/2013, that institution may be required to carry out in the circumstances defined therein the tasks conferred on the national authorities in the context of the prudential supervision of credit institutions.
51
However, it should be observed that, in the judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606), the Court of Justice established a relationship between, on the one hand, the purpose of the rule allegedly breached and, on the other hand, the possibility – or on the contrary the impossibility – for individuals to seek to establish the non-contractual liability of the supervisory authorities. In that judgment, the Court held that provided that the functions of the national supervisory authority were fulfilled in the public interest, EU law did not preclude national law, in that case German law, from excluding the liability of the supervisory authority (judgment of 12 October 2004, Paul and Others, C‑222/02, EU:C:2004:606, paragraph 32).
52
Similarly, the non-contractual liability of the institutions has been relied upon at EU level in situations involving a rule creating rights for the applicants (see paragraphs 36 and 37 above) and has been excluded in situations not involving the creation of such rights, in particular situations where the rules relied on pursued an objective of public interest or were institutional in nature, in particular by conferring or allocating powers between the institutions (see, to that effect, judgments of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 81; of 11 July 2007, Fédération des industries condimentaires de France and Others v Commission, T‑90/03, not published, EU:T:2007:208, paragraph 61; of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraphs 136 to 141; and of 9 February 2022, QI and Others v Commission and ECB, T‑868/16, EU:T:2022:58, paragraphs 93 to 99).
53
In the second place, the ECB argued, with the support of the Commission, that, according to the analyses that it carried out, the majority of the Member States limit the liability of supervisory authorities to cases of intentional fault or serious misconduct. In its view, that approach should be followed at EU level in accordance with the general principles common to the laws of the Member States referred to in the third paragraph of Article 340 TFEU. Such an approach is necessary in order to preserve the ECB’s actions by allowing it to act in the public interest without being paralysed by the fear of being called into question even in the event of slight fault or mere unlawfulness.
54
In that regard, it should be noted that in the judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79), the Court of Justice held, with regard to the liability of Member States for breach of EU law, that the obligation to make reparation for loss or damage caused to individuals cannot depend upon a condition based on any concept of ‘fault going beyond that of a sufficiently serious breach of [EU] law’. The imposition of such a supplementary condition would be tantamount to calling into question the right to reparation founded on the EU legal order (judgment of 5 March 1996, Brasserie du pêcheurandFactortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 79).
55
To the same effect, in the judgment of 25 March 2021, Balgarska Narodna Banka (C‑501/18, EU:C:2021:249), the Court stated that EU law precluded national legislation which made the right of individuals to obtain compensation subject to the additional condition, going beyond a sufficiently serious breach of EU law based on the intentional nature of the conduct, such as that resulting from Article 79(8) of the Law on credit institutions (see judgment of 25 March 2021, Balgarska Narodna Banka, C‑501/18, EU:C:2021:249, paragraph 121 and the case-law cited).
56
The principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law (see judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 124 and the case-law cited).
57
It follows that EU law precludes the non-contractual liability of a Member State and, on the basis of the principle of equivalence, that of an EU institution from being made subject to conditions which, like those relating to the existence of intentional fault or serious misconduct, go beyond the sufficiently serious infringement of EU law.
58
It is in the light of those principles that the eight instances of unlawful conduct raised by the applicants must be examined.
The first instance of unlawful conduct, in that the ECB infringed Italian law in a sufficiently serious manner by failing to intervene to rectify misleading statements made by the bank’s directors concerning its soundness
59
As regards the first instance of unlawful conduct alleged against the ECB, the applicants claim that, by failing to rectify the allegedly misleading statements made by the bank’s directors concerning its soundness, the ECB infringed, in a sufficiently serious manner, three provisions of Italian banking legislation, namely Article 53(1)(da), Article 53a(1)(d) and Article 67(1)(e) of the Consolidated Law on Banking.
60
The ECB, with the support of the Commission, disputes the applicants’ arguments.
61
In that regard, it should be recalled that omissions by the institutions may give rise to liability on the part of the European Union where they infringe a legal obligation to act under a provision of EU law (judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 58, and of 26 February 2016, Šumelj and Others v Commission, T‑546/13, T‑108/14 and T‑109/14, EU:T:2016:107, paragraph 42).
62
It should also be recalled that, in accordance with the case-law, in order for the European Union to incur non-contractual liability, the provision concerned must be intended to confer on the applicants a right which they consider has been breached and the breach alleged to have occurred must be sufficiently serious (see paragraph 35 above).
63
In the present case, the provisions allegedly infringed in a sufficiently serious manner apply to the ECB in the present dispute under Article 9 of Regulation No 1024/2013, pursuant to which that institution is to act as the competent authority in place of the national authority where, as in the present case, the institutions to be supervised fall within its remit under Article 4 of Regulation No 1024/2013.
64
In order to give a ruling, those provisions must be examined in accordance with the objective that they pursue.
65
In the first place, Article 53(1)(da) and Article 67(1)(e) of the Consolidated Law on Banking identify information to be published by the ECB on credit institutions and, where appropriate, the parent company of those institutions, in such a way as to ensure transparency of the markets and thus their proper functioning and the stability of the financial system as a whole.
66
Article 53(1)(da) of the Consolidated Law on Banking entrusts the supervisory authority with the task of publishing information on credit institutions, in particular information on capital adequacy, risk limitation, shareholdings that may be held, governance and administrative or accounting organisation.
67
Furthermore, Article 67(1)(e) of the Consolidated Law on Banking provides that, for the exercise of consolidated supervision, the supervisory authority is to issue to the parent company, by means of general measures, information concerning the banking group as a whole or its components, on capital adequacy, risk limitation in its various configurations, shareholdings, corporate governance, administrative and accounting organisation, internal controls and remuneration and incentive schemes.
68
It follows from their wording that those provisions impose on the ECB a general obligation to publish categories of information in the public interest, namely to ensure the proper functioning and the stability of markets. However, they do not in themselves impose on the ECB, directly or indirectly, any obligation to react in a specific way when statements are made, by certain stakeholders, concerning the soundness of certain institutions, that are construed as misleading by other stakeholders. Consequently, no right of any kind can be inferred from those provisions, for investors, to have the ECB intervene in each Member State whenever comments are made there about the institutions subject to its supervision which might be judged by investors to be wholly or partly unfounded.
69
Admittedly, those statements could have been made in the present case by the bank’s directors. On account of their duties, a form of credibility could have been attributed by the markets to those statements. Thus, the value of the shares making up the bank’s capital could have been affected by those statements, which could have caused harm to the applicants.
70
However, it should be recalled that the existence of alleged financial damage is not sufficient in itself to give rise to non-contractual liability on the part of the European Union. In order for that liability to be established, unlawful conduct must be established by the applicants. To that end, the latter must demonstrate, according to the case-law, that a rule conferring rights on individuals has been breached in a sufficiently serious manner. However, the applicants have failed to establish the existence of such a rule, let alone the existence of such a breach.
71
In the present case, it appears that if they considered that they had suffered harm as a result of such statements, it was for the applicants themselves to react by rectifying the statements and, where appropriate, by bringing those responsible before the courts having jurisdiction.
72
In the second place, Article 53a(1)(d) of the Consolidated Law on Banking provides that, where the situation so requires, the supervisory authority may adopt specific measures in respect of one or more banks or the banking system as a whole.
73
According to that provision, those measures may include the restriction of the activities or territorial structure of the bank; the prohibition, for the latter, on carrying out certain transactions, even of a corporate nature, and distributing profits or other items of capital, and, in the case of financial instruments which may be included in the capital for supervisory purposes, a prohibition on paying out interest; the setting of limits on the total amount of the variable part of the remuneration in the bank where that is necessary to maintain a sound capital base and, for banks receiving State support in the form of extraordinary interventions, the setting of limits on the total remuneration of company directors.
74
In the light of its wording, it is apparent that, as such, Article 53a(1)(d) of the Consolidated Law on Banking is irrelevant when determining whether an obligation has been imposed on the ECB in order to compel it to correct statements attributed to certain stakeholders and deemed incorrect by others concerning the financial stability of the bank. No such obligation is imposed in that regard on the ECB, directly or indirectly. Without unduly extending its scope, that provision cannot be interpreted in such a way as to add an obligation, to be borne by the ECB, which, since it was not included in the text of the legislation, has not been enshrined by the EU legislature.
75
It follows that the applicants’ arguments concerning the first instance of unlawful conduct alleged against the ECB must be rejected.
The second instance of unlawful conduct, in that the ECB breached, in a sufficiently serious manner, EU rules in its relations with the bank’s board of directors
76
As regards the second instance of unlawful conduct alleged against the ECB, the applicants claim that it infringed, in a sufficiently serious manner, Articles 4 and 16 of Regulation No 1024/2013:
–
by conferring with Mr Modiano and Mr Innocenzi with a view to their resigning on 2 January 2019, causing the bank’s board of directors to be disqualified and thus paving the way for that institution to be placed under temporary administration;
–
by seeking to limit the powers of the bank’s board of directors to a simple ratification of the decisions taken by the managing director at the meeting of 16 February 2018 and during successive exchanges between Mr Malacalza, Ms Nouy (Chair of the ECB’s Supervisory Board) and Mr Quintana (member of the ECB’s Directorate-General for Micro-Prudential Supervision);
–
by concealing from the board of directors for several months the extent of the difficulty faced by the bank in terms of capital, by informing it only, on 21 June 2018, of the content of a letter which the ECB had nonetheless sent on 4 June 2018 to the managing director.
77
The ECB, supported by the Commission, disputes those arguments.
78
In order to give a ruling, the two provisions relied on by the applicants must be examined in turn.
79
In the first place, Article 4 of Regulation No 1024/2013 provides that the ECB is to be exclusively competent to carry out, for the purposes of prudential supervision over credit institutions established in the Member States, the tasks of, inter alia, authorising credit institutions, assessing notifications of acquisitions and disposals of qualifying holdings in credit institutions and ensuring compliance with the acts that impose prudential requirements on credit institutions in the areas of own funds requirements, large exposure limits, liquidity and governance, including the fit and proper requirements for the persons responsible for the management of credit institutions.
80
In that regard, it should be noted that the conduct alleged against the ECB bears no relation to Article 4 of Regulation No 1024/2013. That provision confers powers on the ECB in prudential matters and provides, more specifically, that the ECB is to be ‘exclusively competent’ to exercise a number of those powers, thus allocating between that institution and the national authorities the tasks that may be envisaged in that type of area.
81
Accordingly, that provision, in so far as it assigns powers to the institutions and allocates those powers amongst those institutions, seeks to implement the general objective of organising a regulatory system relating to an area of activity in the public interest without granting, in itself, rights to individuals which could form the basis of an action before the General Court.
82
In the second place, Article 16(1) and (2) of Regulation No 1024/2013 empowers the ECB, for the purposes of carrying out the tasks conferred on it, to require credit institutions to take various measures at an early stage where those institutions do not comply with the prudential requirements or are at risk of failing to comply with them, or where other weaknesses prevent those institutions from ensuring sound management or satisfactory risk coverage.
83
The measures referred to in that provision may consist, inter alia, in requiring the strengthening of own funds, restricting or limiting the business of the credit institution, requesting the divestment of activities posing excessive risks to the soundness of the institution or removing members of the management body of institutions who do not comply with the obligations imposed on them.
84
Again, such a provision, in so far as it confines itself to granting authorisation, does not, in itself, contain rules intended to confer rights on individuals, but structures the operation of the system of banking supervision in the public interest and is not, on that basis, capable of giving rise to non-contractual liability on the part of the European Union.
85
In those circumstances, it must be held that since they are not intended to confer rights on individuals, Article 4 and Article 16(1) and (2) of Regulation No 1024/2013 cannot form the basis of a claim of unlawful conduct alleged against the ECB in the context of the prudential supervision which it carried out on the bank such as to give rise to liability on the part of the European Union in respect of that conduct.
86
The applicants’ argument concerning the second instance of unlawful conduct alleged against the ECB must therefore be rejected.
The third instance of unlawful conduct, in that the ECB infringed, in a sufficiently serious manner, Italian law by approving, on 18 September 2019, an increase in capital contrary to the pre-emption rights provided for in the bank’s statutes
87
As regards the third instance of unlawful conduct alleged against the ECB, the applicants claim that it infringed, in a sufficiently serious manner, Article 56 of the Consolidated Law on Banking by approving, on 18 September 2019, a capital increase contrary to the pre-emption rights granted to shareholders by the bank’s statutes.
88
The ECB, supported by the Commission, disputes those arguments.
89
The terms of Article 56 of the Consolidated Law on Banking are as follows:
‘1.   The Bank of Italy shall ensure that amendments to the statutes of banks do not conflict with sound and prudent management.
‘2.   The procedure for registration in the companies’ register may be initiated only if the verification provided for in paragraph 1 is established.’
90
In the present case, Article 56 of the Consolidated Law on Banking applies to the ECB by virtue of Article 9 of Regulation No 1024/2013, according to which that institution is to act as the competent authority in place of the national authority where, as in the present case, the institutions to be supervised fall within its remit under Article 4 of that regulation.
91
It is apparent from Article 56 of the Consolidated Law on Banking that in carrying out the tasks entrusted to it, the supervisory authority is to ascertain whether the amendments made to the statutes of credit institutions are compatible with the constraints arising from sound and prudent management before those amendments can be entered in the companies register.
92
That verification should not relate to the compatibility of the proposed amendment to the statutes with the shareholders’ pre-emption rights, but to the compatibility of that amendment with the requirement of sound and prudent management laid down in Article 56 of the Consolidated Law on Banking.
93
Consequently, the requirement of sound and prudent management shows that, contrary to what the applicants claim, the objective to be taken into account in the context of the assessment carried out by the supervisory authority on the basis of Article 56 of the Consolidated Law on Banking is the stability of the credit institution and, more broadly, of the financial system as a whole.
94
In those circumstances, it must be held that Article 56 of the Consolidated Law on Banking does not in itself confer rights on individuals within the meaning of paragraphs 36 and 37 above. Accordingly, the argument concerning the third instance of unlawful conduct alleged against the ECB must be rejected.
The fourth instance of unlawful conduct, in that the ECB infringed, in a sufficiently serious manner, Italian law by appointing temporary administrators who had a conflict of interest
95
As regards the fourth instance of unlawful conduct alleged against the ECB, the applicants submit that the ECB infringed, in a sufficiently serious manner, Article 71(6) of the Consolidated Law on Banking by appointing, as temporary administrators, the former chair of the board of directors, Mr Modiano, and the former managing director of the bank, Mr Innocenzi. Once the latter became temporary administrators, it would have become difficult for them to bring a company action against the administrative and supervisory bodies (or some of their members) that had been dissolved in the meantime. Thus, those two persons were protected, by reason of their appointment as temporary administrators, from an action for damages which could have been brought against them for the decisions taken when they were, respectively, chairman of the board of directors and managing director of the bank.
96
The ECB, supported by the Commission, disputes that reasoning.
97
As a preliminary point, it should be noted that the decision to place the applicant under temporary administration was annulled by the General Court in the judgment of 12 October 2022, Corneli v ECB (T‑502/19, under appeal, EU:T:2022:627), a circumstance which should not prevent it from being examined in the present proceedings.
98
First, the annulment did not occur on the basis of a conflict of interests, contrary to what the applicants claim in the present case, but on the ground that an error was made in determining the legal basis used by the ECB to adopt that decision (judgment of 12 October 2022, Corneli v ECB, T‑502/19, under appeal, EU:T:2022:627, paragraphs 113 and 114).
99
Second, an action for damages, by reason of its nature, constitutes an autonomous form of action which performs a particular function within the system of actions laid down by the Treaties and is subject to conditions on its use dictated by its specific purpose (judgment of 28 April 1971, Lütticke v Commission, 4/69, EU:C:1971:40, paragraph 6, and order of 21 June 1993, Van Parijs and Others v Council and Commission, C‑257/93, EU:C:1993:249, paragraph 14).
100
Thus, it is accepted that the General Court may examine separately, for the purposes of an action for damages, the legality of an act which is the subject of an action for annulment. However, whereas an action for annulment seeks a declaration that a legally binding measure is unlawful, an action for damages seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to an EU institution or body (see, to that effect, judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraphs 61 and 62).
101
That clarification having been made, it follows from Article 71(6) of the Consolidated Law on Banking that in order to be able to perform their duties, temporary administrators must have a number of characteristics, one of which being that they must be free from conflicts of interest. Such a requirement implies, on the part of the ECB, that when appointing temporary administrators it must verify that there are no conflicts of interest among the persons concerned. In the absence of such verification, the persons concerned cannot perform their duties even if they have been appointed, when they do not comply with that requirement.
102
The requirement to be free from conflict of interest falls, in general, within the scope of the principle of impartiality, which, according to the case-law, is intended to protect, first, the public interest and, second, the interest of individuals who might be adversely affected as a result of the presence of that conflict of interest (see, by analogy, judgments of 6 April 2006, Camós Grau v Commission, T‑309/03, EU:T:2006:110, paragraph 102, and of 6 June 2019, Dalli v Commission, T‑399/17, not published, EU:T:2019:384, paragraph 100).
103
Thus, according to the case-law, the principle of impartiality creates, in relation to individuals who may be affected, a subjective right which, if it is breached in a sufficiently serious manner, is capable of incurring non-contractual liability of the European Union for any damage caused by an institution in the performance of the tasks entrusted to it.
104
In those circumstances, it must be held that Article 71(6) of the Consolidated Law on Banking is intended to confer rights on individuals within the meaning of paragraphs 36 and 37 above.
105
As regards ascertaining whether the ECB committed a sufficiently serious infringement of Article 71(6) of the Consolidated Law on Banking, it should be noted that, in order to justify the adoption of the decision to place the bank under temporary administration, that institution did not state that that decision was justified by the existence of ‘serious irregularities’ committed ‘in the administration’ of the bank, within the meaning of Article 69octiesdecies(1)(b) of the Consolidated Law on Banking, read in conjunction with Article 70 thereof.
106
In that regard, it should be recalled that under Article 69octiesdecies(1)(b) and Article 70 of the Consolidated Law on Banking, the supervisory authority may place an institution under temporary administration in the event of serious infringements of laws or regulations, of serious irregularities in the management of the credit institution, where the deterioration in the situation of the bank or banking group is particularly significant, when serious losses of assets are foreseeable, or where temporary administration is requested by reasoned application from the administrative bodies or by the extraordinary general meeting of the credit institution.
107
In the present case, if irregularities had been committed in the management of the bank, it would have been necessary to ensure, in order to protect the shareholders, that proceedings could be brought against those responsible. Only an action for damages against the former members of the administrative bodies would have been capable of allowing compensation to be paid by those persons for the damage suffered by the shareholders. In such a situation, it might have been inappropriate to appoint as temporary administrators persons who had previously performed administrative functions within the bank. Indeed, such an appointment, as the applicants maintain, would have made the prospect of such an action unrealistic, since the temporary administrators had no interest in calling into question their own liability.
108
However, the situation was different in the present case since, in the words used there, the decision to place the bank under temporary administration was - in the words of the decision itself - not based on ‘serious irregularities’ allegedly committed by the former administrative bodies of the bank, but on the ‘significant deterioration in the situation of the bank’ within the meaning of Articles 69octiesdecies and 70 of the Consolidated Law on Banking.
109
Furthermore, the financial difficulties affecting the bank preceded the appointment, respectively, of Mr Modiano as chair of the bank’s board of directors, and of Mr Innocenzi as managing director, as is apparent from the account of the facts set out above (paragraphs 5 to 10 above).
110
Moreover, it should be borne in mind that in the performance of its prudential tasks, the ECB enjoys a wide discretion and the Court cannot substitute its own assessment for that made by the institution (see paragraph 45 above).
111
The ECB was entitled to take the view, in the exercise of that power, without exceeding the limits thereof, that it was appropriate to entrust the management of the temporary administration to persons familiar with the credit institution covered by the measure at issue, since such familiarity would enable them to react more quickly in a crisis context in the face of the successive difficulties that arose.
112
On that basis, it may be considered that the ECB exercised its discretion in a reasonable manner by appointing, as part of the temporary administration, Mr Modiano and Mr Innocenzi, who were sufficiently well acquainted with the bank’s affairs as to be able to act expeditiously when faced with the crisis situation experienced by the bank.
113
It is true, as the applicants state, that the company action for damages against the members of the dissolved administrative and supervisory bodies is brought, for the duration of the temporary administration, by the temporary administrators in accordance with Article 72(5) of the Consolidated Law on Banking.
114
However, the meeting of the shareholders and the shareholders who, individually or jointly, hold one fifth of the share capital or the different amount provided for in a credit institution’s statutes may, as soon as the ordinary administration of a credit institution resumes, bring an action for damages against the members of the administrative and supervisory bodies for a period of five years after those members have ceased to hold office, in accordance with Articles 2393 and 2393a of the Italian Civil Code.
115
Thus, as soon as the ordinary management of the bank was resumed, the shareholders’ meeting and the shareholders who individually or jointly held one fifth of the share capital or the different amount provided for in the bank’s statutes, had the possibility of bringing an action for damages against Mr Modiano and Mr Innocenzi, in their capacity as former members of the board of directors, within a period of five years from the date on which they ceased to perform their duties.
116
A fortiori, in those circumstances, it must be held that by appointing Mr Modiano and Mr Innocenzi as temporary administrators, the ECB remained within reasonable bounds in exercising its discretion.
117
Thus, since no sufficiently serious breach has been established, the line of argument concerning the fourth instance of unlawful conduct alleged against the ECB must be rejected.
The fifth instance of unlawful conduct, in that, when adopting early intervention measures, the ECB committed a sufficiently serious breach of various rules and principles
118
As regards the fifth instance of unlawful conduct alleged against the ECB, the applicants raise six complaints against the adoption of the early intervention measure, which are disputed by the ECB, with the support of the Commission.
– The first complaint, concerning the adoption of the early intervention measure on the basis of a mere risk of infringement of the regulatory framework
119
By the first complaint, the applicants claim that the ECB infringed, in a sufficiently serious manner, Article 69octiesdecies(1)(a) of the Consolidated Law on Banking by adopting the early intervention measure where there was a mere risk of breach of the applicable regulatory framework, whereas evidence of a foreseeable breach had to be adduced, in their view, pursuant to that provision.
120
In that regard, it should be noted that, under Article 69octiesdecies(1)(a) of the Consolidated Law on Banking, the Banca d’Italia (Bank of Italy) may adopt the early intervention measures referred to therein where, as a result of a rapid deterioration in the situation of the bank concerned or of its group, it finds there to be or foresees, inter alia, an infringement of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1) and of Title II of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349).
121
In the present case, Article 69octiesdecies(1)(a) of the Consolidated Law on Banking applies to the ECB by virtue of Article 9 of Regulation No 1024/2013, according to which that institution is to act as the competent authority in place of the national authority where, as in the present case, the institutions to be supervised fall within its remit under Article 4 of Regulation No 1024/2013.
122
It follows that, in so far as Article 69octiesdecies(1)(a) of the Consolidated Law on Banking merely gives the supervisory authority the power to adopt an early intervention measure where, at the end of its assessment, the conditions which it lays down are satisfied, it does not in itself confer on individuals rights the observance of which they may request that the Courts of the European Union ensure.
123
That conclusion cannot be called into question by the applicants’ argument that the rights and interests which they have as shareholders were affected since they were deprived of any possible involvement in the management of the bank following the adoption, by the ECB, of the early intervention measure.
124
In that regard, it must be held that any effect produced by an intervention on the part of the ECB on the interests of the shareholders of a credit institution cannot be taken into account in order to establish the non-contractual liability of that institution if the rule on which that intervention is based is not intended specifically to create or protect a right conferred on them in a sufficiently defined manner.
125
As stated in paragraph 122 above, Article 69octiesdecies(1)(a) of the Consolidated Law on Banking is not intended to create rights for individuals, even if they are shareholders.
126
It was in order to protect the stability of the financial system and, therefore, to implement an objective of public interest that the early intervention measure was adopted on the basis of Article 69octiesdecies(1)(a) of the Consolidated Law on Banking.
127
Thus, the reason given by the ECB for adopting the early intervention measure was the risk of infringement of the requirements established by the applicable regulatory framework. To that extent, the risk taken into account was specifically and concretely substantiated in the light of the criteria laid down in Article 69octiesdecies(1)(a) of the Consolidated Law on Banking, which refers to the existence of a rapid deterioration in the situation of the supervised entity as one of the indications of a possible breach by that entity of the own funds requirements.
128
In that connection, the ECB stated in the early intervention measure that:
–
in June 2016, the bank’s Common Equity Tier 1 ratio (CET 1) and Tier 2 capital ratio (TCR) were 12.29% and 14.37%, respectively. However, the expected development of those two ratios in 2017 would lead to values below those of the previous year, namely 10.35% for the CET 1 and 12.19% for the TCR in breach of the overall own funds requirement of 12.50% (see point 1.1.1 of the early intervention measure);
–
capital ratios were likely to decrease even beyond the values set out above with even more significant asset losses given the ongoing and insufficient performance in terms of the bank’s profitability in recent years, the high credit risk stemming from the level of non-performing loans, which endangered the ability of the supervised entity to generate profits, as well as uncertainties related to the cost-saving measures provided for in the strategic plan adopted by the bank (see points 1.1.2 and 1.1.3 of the early intervention measure).
129
In those circumstances, it must be held that in pursuit of an objective of public interest, Article 69octiesdecies(1)(a) of the Consolidated Law on Banking is not intended to confer rights on individuals, and that it was indeed in order to achieve that objective that it was implemented in the present case with the adoption of the early intervention measure, with the consequence that the first complaint must be rejected.
– The second complaint, concerning the obligation laid down in the early intervention measure to dispose of the allegedly non-performing loans on less advantageous terms
130
By the second complaint, the applicants submit that the ECB infringed, in a sufficiently serious manner, Article 69noviesdecies of the Consolidated Law on Banking by imposing on the bank, in the early intervention measure, the obligation to dispose of the allegedly non-performing loans on less advantageous terms. According to the applicants, that provision does not permit the imposition of that type of obligation, but only provides for the possibility of implementing a recovery plan or preparing a plan to negotiate a restructuring of the debt with the creditors.
131
Under Article 69noviesdecies of the Consolidated Law on Banking, the Bank of Italy may request, where the conditions laid down in Article 69octiesdecies(1)(a) of that law are met, that a credit institution or the parent company of a banking group implement even in part the restructuring plan adopted, to prepare a plan to negotiate debt restructuring with all or some of the creditors or, where appropriate, to change their corporate form.
132
In exercising that power, the Bank of Italy may require that the recovery plan be updated where the conditions which led to the adoption of the early intervention measure differ from those envisaged in the plan. In addition, it may set a deadline for the implementation of the plan and the elimination of the causes that led to the adoption of the early intervention measure.
133
In the present case, Article 69noviesdecies of the Consolidated Law on Banking applies to the ECB by virtue of Article 9 of Regulation No 1024/2013, under which that institution is to act as the competent authority in place of the national authority where, as in the present case, the institutions to be supervised fall within its remit under Article 4 of Regulation No 1024/2013.
134
It must be held that, in so far as Article 69noviesdecies of the Consolidated Law on Banking merely gives the supervisory authority the power to request that credit institutions prepare or implement a plan to negotiate a debt restructuring where the conditions laid down therein are met, it does not in itself confer rights on individuals.
135
Thus, in the present case, it is in order to achieve an objective of public interest that the ECB requested, in the early intervention measure, that the bank submit, by 28 February 2017, a strategic plan and an operational plan which had, at least, to:
–
state the measures that the bank intended to take to reduce the level of non-performing loans;
–
include quantitative objectives for the reduction of non-performing loans;
–
set out a schedule for the implementation of those measures;
–
take into account the minimum targets set by the ECB when selecting the measures to be taken to reduce non-performing loans, in other words, a maximum of EUR 5.5 billion in non-performing loans as at 31 December 2017, EUR 4.6 billion as at 31 December 2018 and EUR 3.7 billion as at 31 December 2019; and
–
be approved by the bank’s management body.
136
Thus, contrary to what the applicants maintain, the early intervention measure did not require that the bank give up non-performing loans, let alone do so at defined prices during a given period. In accordance with Article 69noviesdecies of the Consolidated Law on Banking, in the early intervention measure the ECB merely asked the bank to submit a strategic plan and an operational plan to reduce the proportion of non-performing loans on its balance sheet. However, those plans had to be prepared and approved by the bank. It was required, in particular, to identify and implement the appropriate measures by stating, for example, which non-performing loans were to be disposed of, under what terms, to whom and at what price.
137
Moreover, Article 69noviesdecies of the Consolidated Law on Banking does not preclude the early intervention measure from indicating minimum targets and setting deadlines for the reduction of non-performing loans. Indeed, that provision expressly confers on the ECB the power to set a time limit for the implementation of the plan and the elimination of the causes that gave rise to the early intervention.
138
In those circumstances, it must be held that Article 69noviesdecies of the Consolidated Law on Banking pursues an objective of public interest without being intended to confer rights on individuals and that it is indeed in order to achieve that objective that it was implemented in the present case by the ECB when it adopted the early intervention measure at issue in the second complaint.
139
The second complaint must therefore be rejected.
– The third complaint, concerning compliance, within a given period, with the requirements imposed in respect of own funds
140
By the third complaint, the applicants claim that the ECB infringed, in a sufficiently serious manner, Article 16(1)(b) of Regulation No 1024/2013, since, in the early intervention measure, it considered that the breach by the bank of the own funds requirements could have materialised within a time frame of more than 12 months after the adoption of that measure.
141
According to the applicants, Article 16(1)(b) of Regulation No 1024/2013 limits the ECB’s power to adopt a measure in respect of a credit institution solely to cases in which the risk of breach by that institution of the applicable regulatory framework occurs, at the latest, in the 12 months following the ECB’s intervention.
142
In that regard, it should be recalled that, as stated in paragraph 82 et seq. above, Article 16 of Regulation No 1024/2013 confers powers on the ECB in the field of prudential supervision by pursuing an objective of public interest without conferring rights on individuals.
143
The third complaint must therefore be rejected.
– The fourth complaint, concerning breach of the principle of equal treatment
144
By the fourth complaint, the applicants claim that the ECB breached, in a sufficiently serious manner, the principle of equal treatment, by imposing on the bank, in the context of the early intervention measure, more stringent measures than those adopted in respect of other credit institutions which were, however, in a similar situation.
145
In that regard, it should be recalled that the principle of equal treatment is enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and requires that comparable situations must not be treated differently or different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 41 and the case-law cited).
146
On that basis, the principle of equal treatment is capable, according to the case-law, of conferring rights on individuals (see, to that effect, judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 87, and of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 110).
147
In those circumstances, it is necessary to ascertain whether, by adopting the early intervention measure, the ECB gravely and manifestly disregarded the principle of equal treatment, beyond the broad discretion conferred on it.
148
In that regard, it should be noted that, in the exercise of its supervisory tasks, the ECB is to carry out technical assessments taking into account a wide range of variables, including levels of capital and liquidity, business models, governance, risks, systemic impact and macroeconomic scenarios. Thus, the prudential supervision of credit institutions is not confined to a quantitative and mechanical comparison of isolated and extrapolated figures, but requires an overall prudential assessment of the credit institution’s situation which goes hand in hand with a broad discretion.
149
In the intervention measure, in order to demonstrate the occurrence of a rapid deterioration in the bank, the ECB did not confine itself to finding that there had been a breach of the asset requirements linked to the level of non-performing loans, but also referred to several factors which, in its view, demonstrated the fragility of that institution: the credit risk (page 2, point 1.1.1), the low profitability (page 2, point 1.1.1), the losses incurred in previous years (page 3, point 1.12(i)), modest results in the generation of operating income (page 3, point 1.1.2(i)), very high cost/revenue ratio (page 4, point 1.1.2(i)), uncertainties regarding cost-saving measures (page 4, point 1.1.2(iii)) and the weakness of the liquidity situation (page 7, point 2.4).
150
According to the case-law, since it maintains that the principle of equal treatment has been breached, it is for the applicant to precisely identify the comparable situations which it considers to have been treated differently or the different situations which it considers to have been treated identically (see, to that effect, judgment of 13 July 2018, K. Chrysostomides & Co. and Others v Council and Others, T‑680/13, EU:T:2018:486, paragraph 442 and the case-law cited).
151
Thus, the applicants should have established, in the present case, whether that was their intention, in the light of the parameters set out in paragraph 149 above, that other Italian credit institutions in a comparable situation had been treated differently.
152
It is true that, in their written pleadings, the applicants have produced a report comparing the number of non-performing loans held by the bank with those held by other Italian credit institutions. However, they did not link that particular situation with the decisions taken by the ECB in such a way as to establish the existence of a genuine difference in treatment between the bank and other Italian credit institutions.
153
The fourth complaint must therefore be rejected.
– The fifth complaint, concerning breach of the principle of proportionality
154
By the fifth complaint, the applicants claim that the ECB breached, in a sufficiently serious manner, the principle of proportionality by imposing on the bank an obligation that automatically causes an immediate write-down of the bank’s loans and gives rise to considerable losses for the bank, even though less radical measures were conceivable.
155
In that regard, it should be noted that, as a general principle of law, the principle of proportionality is enshrined in Article 5(4) TEU and is capable, according to the case-law, of conferring rights on individuals (judgments of 6 December 2001, Emesa Sugar v Council, T‑43/98, EU:T:2001:279, paragraph 64, and of 29 November 2016, T & L Sugars and Sidul Açúcares v Commission, T‑279/11, not published, EU:T:2016:683, paragraph 58).
156
Thus, the European Union may incur non-contractual liability where individuals establish that the ECB caused them harm by adopting conduct contrary to the principle of proportionality, if they demonstrate that that principle was seriously and manifestly breached by the institution.
157
According to the case-law, the principle of proportionality requires that acts of the EU institutions be such as to enable the legitimate objectives pursued by the legislation at issue to be attained without exceeding the limits of what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 8 July 2020, VQ v ECB, T‑203/18, EU:T:2020:313, paragraph 61; see also judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 142 and the case-law cited).
158
When hearing a request for review of compliance with the principle of proportionality, the court having jurisdiction must respect the discretion conferred on the EU institutions (judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 68).
159
In that regard, it should be recalled that, as has been stated in paragraph 45 above, the ECB enjoys a broad discretion in the exercise of its prudential supervision tasks.
160
According to the wording used to justify the adoption of the early intervention measure, the ECB analysed the proportionality of the obligation which it intended to adopt with regard to loans forming part of the bank’s assets, but which did not have the performance characteristics it considered necessary for compliance with the own funds requirements of EU legislation.
161
At the beginning of its analysis, the ECB assessed as likely the risk of a breach, by the bank, of the asset requirements related to the holding of non-performing loans (point 1.1.1 of the early intervention measure).
162
It then noted the inadequacy of the strategic plan submitted by the bank on 14 June 2016 in order to comply with the objectives it had set in terms of reducing cost/revenue ratio and reducing non-performing loans (point 1.1.5 of the early intervention measure).
163
Furthermore, it noted that the bank had suffered a serious deterioration in its financial situation with a significant increase in credit risk over the period 2013-2016 and a significant weakness in terms of available liquidity (points 2.3 and 2.4 of the early intervention measure).
164
On that basis, the ECB concluded that the measure requiring the bank to submit a strategic plan and an operational plan for reducing non-performing loans was:
–
proportionate to the bank’s situation;
–
appropriate to improve the prudential situation of the supervised entity, since the high level of non-performing loans was one of the main risk factors to which the bank was exposed;
–
essential in order to attain the objective sought, namely the recovery of the bank’s assets and liabilities, since no other measure can be implemented in order to achieve the desired result (point 1.1.5 of the early intervention measure).
165
On the basis of that analysis, the ECB was entitled to take the view, in view of the risk faced by the bank, that it was appropriate and necessary to adopt the early intervention measure without there being alternatives to put a satisfactory end to the difficulties which the bank was experiencing at that time.
166
In the light of the foregoing considerations, it must be held that the applicants have failed to identify factors to the effect that, by adopting the early intervention measure, the ECB seriously and manifestly breached the principle of proportionality.
167
The fifth complaint must therefore be rejected and, with it, the line of argument concerning the fifth instance of unlawful conduct alleged against the ECB in its entirety.
– The sixth complaint, concerning the plea of illegality raised by the applicants in respect of the early intervention measure
168
The applicants ask the Court to decide as an incidental question, on the basis of Article 277 TFEU, that the early intervention measure is inapplicable because it is unlawful on the grounds set out in paragraphs 119 to 167 above.
169
In that regard, it should be recalled that, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an EU institution, body, office or agency is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act, notwithstanding the expiry of the period laid down in the sixth paragraph of Article 263 TFEU.
170
According to the case-law, a plea of illegality applies only to acts of general application, failing which it will be inadmissible (judgment of 26 October 1993, Reinarz v Commission, T‑6/92 and T‑52/92, EU:T:1993:89, paragraph 56).
171
An act is of general application within the meaning of Article 277 TFEU if it relates to objectively determined situations and produces legal effects with respect to categories of persons envisaged in the abstract (judgments of 28 February 2018, Paulini v ECB, T‑764/16, not published, EU:T:2018:101, paragraph 32, and of 5 May 2021, Pharmaceutical Works Polpharma v EMA, T‑611/18, EU:T:2021:241, paragraph 90).
172
That is not the case here, since the early intervention measure was addressed specifically by the ECB to the bank, requiring it, in view of the financial difficulties to which it was exposed, to present a strategic plan and an operational plan to reduce the issuing of non-performing loans.
173
It follows that the early intervention measure does not constitute an act of general application within the meaning of the case-law cited in paragraph 171 above.
174
The plea of illegality must therefore be rejected as inadmissible.
The sixth instance of unlawful conduct, in that, in the own funds decision, the ECB imposed a period of time on the bank which was too short to enable it to comply with the own funds requirements imposed on it
175
As regards the sixth instance of unlawful conduct alleged against the ECB, the applicants claim that, in the own funds decision, the ECB imposed a period of time on the bank that was too short to enable it to comply with the own funds requirements imposed on it. More specifically, according to the applicants, it was unreasonable to ask the bank to comply with those requirements by 31 December 2018, that is to say, only 19 working days after the date set by the ECB for the submission and approval by the bank’s board of directors of a capital conservation plan.
176
The ECB, supported by the Commission, disputes that reasoning.
177
In that regard, it should be recalled that the ECB’s assessment of the measures to be taken to put an end to a problematic situation forms part of the assessment to be carried out under the principle of proportionality. That complaint was examined as regards the fifth instance of unlawful conduct alleged against the ECB, in connection with the early intervention measure (fifth complaint). Here, it is relied upon, in so far as concerns the sixth instance of unlawful conduct alleged against the ECB, with regard to the own funds decision, which is also called into question on the basis of the alleged breach of the principle of proportionality.
178
As stated in paragraphs 155 and 156 above, according to the case-law, the principle of proportionality is capable of conferring rights on individuals. That principle gives individuals the possibility that the European Union may incur non-contractual liability where they establish that the ECB caused them harm by adopting conduct contrary to the principle of proportionality, if they demonstrate that that principle was seriously and manifestly breached by the institution.
179
In the present case, it is necessary to ascertain whether, in adopting the own funds decision, the ECB complied with the principle of proportionality.
180
In that regard, it must be held that the ECB assessed the proportionality of the own funds decision in a precise manner in the body of that decision.
181
First of all, it noted that in 2018 the bank had failed three times (in March, May and June) in its attempt to issue capital on the equity market and that those failures had led to a number of resignations on the board of directors, including that of Mr Malacalza, which had made it necessary to appoint a new board of directors. Thus, according to the ECB, the bank presented risk and uncertainty regarding its financial soundness and governance (paragraph 1.1 of the own funds decision).
182
Next, the ECB argued that the capital conservation plan submitted by the bank on 22 June 2018 did not allow the overall own funds requirement to be met within an appropriate period, since the feasibility, timing and effectiveness of the proposed measures depended heavily on market conditions and investor interest, which, at the time, were not favourable to the bank (paragraph 2.1.1 of the own funds decision).
183
Lastly, the ECB took the view that even assuming the measures envisaged by the bank in the capital conservation plan of 22 June 2018 were implemented, they would not have provided a credible basis for ensuring compliance with the own funds requirements in a sustainable way (paragraph 2.1.2 of the own funds decision).
184
On the basis of that analysis, the ECB was entitled to consider, in view of the real risk that the bank would not be able to restore its capital immediately, that it was appropriate and necessary to ask it to submit and have approved by its board of directors, by 30 November 2018 at the latest, a new plan aimed at restoring and ensuring lasting compliance with the asset requirements by 31 December 2018 at the latest. According to the ECB, that decision was the only one capable of achieving the objective pursued, namely the recovery of the bank’s assets and liabilities (paragraph 2.1.2 of the own funds decision).
185
In the light of the foregoing considerations, it must be held that the applicants have failed to identify factors to the effect that, by adopting the own funds decision, the ECB breached the principle of proportionality in a sufficiently serious manner.
186
The line of argument concerning the sixth instance of unlawful conduct alleged against the ECB must therefore be rejected.
The seventh instance of unlawful conduct, in that the ECB breached, in a sufficiently serious manner, the principle of the protection of legitimate expectations as a result of the assurances given to shareholders as to the bank’s situation
187
As regards the seventh instance of unlawful conduct, the applicants put forward three complaints relating to the alleged sufficiently serious breach by the ECB of the principle of the protection of legitimate expectations.
188
The three complaints are disputed by the ECB with the support of the Commission.
189
As a preliminary point, it should be recalled that, according to the case-law, the principle of the protection of legitimate expectations is a general principle of EU law intended to confer rights on individuals (judgments of 19 May 1992, Mulder and Others v Council and Commission, C‑104/89 and C‑37/90, EU:C:1992:217, paragraph 15, and of 6 December 2001, Emesa Sugar v Council, T‑43/98, EU:T:2001:279, paragraph 64).
190
According to the case-law, the possibility of relying on the principle of the protection of legitimate expectations is subject to three cumulative conditions. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Second, those assurances must be such as to give rise to a legitimate expectation in the mind of the person to whom they are addressed. Third, assurances given must comply with the applicable rules (judgments of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 75, and of 24 January 2017, Nausicaa Anadyomène and Banque d’escompte v ECB, T‑749/15, not published, EU:T:2017:21, paragraph 81).
191
The case-law also makes it clear that the principle of the protection of legitimate expectations may be relied on by any economic operator on whose part an authority has created reasonable expectations. However, where a prudent and circumspect economic operator could have foreseen the adoption of a measure likely to affect his, her or its interests, he, she or it cannot plead that principle if the measure is adopted. Moreover, economic operators cannot justifiably claim a legitimate expectation that an existing situation which may be altered by the national authorities in the exercise of their discretionary power will be maintained (see judgment of 22 September 2022, Admiral Gaming Network and Others, C‑475/20 to C‑482/20, EU:C:2022:714, paragraph 62 and the case-law cited).
192
It is in that context that the three complaints raised by the applicants must be assessed.
– The first complaint, concerning the ECB’s failure to intervene in respect of misleading statements made by directors of the bank
193
By the first complaint, the applicants claim that the ECB breached, in a sufficiently serious manner, the principle of the protection of legitimate expectations by failing to intervene in order to correct misleading statements made by directors concerning the financial soundness of the bank.
194
In that regard, it should be recalled that that conduct attributed to the ECB was also criticised in the context of the arguments concerning the first instance of unlawful conduct alleged, in which the applicants argued unsuccessfully that that institution should have intervened, under Italian law, in order to correct the misleading statements made by directors of the bank (paragraph 59 et seq. above).
195
As regards the seventh instance of unlawful conduct alleged against the ECB, the same conduct is called into question in the light of the principle of the protection of legitimate expectations, since the applicants claim that the failure to intervene for the purposes of a correction from the ECB gave rise to a legitimate expectation on their part as to the financial soundness of the bank.
196
Without disputing the possibility that the applicants might have hoped that the bank’s situation would improve, it should be noted, first, that the ECB’s failure to intervene to correct allegedly misleading statements cannot be regarded as the provision by the ECB of assurances as to the conduct which it intended to adopt vis-à-vis the bank and, second and in any event, as regards its form, that such a failure clearly does not satisfy the requirement that assurances must be precise, unconditional and consistent in order to give rise to legitimate expectations, as recalled in paragraph 190 above.
197
The first complaint must therefore be rejected.
– The second complaint, concerning the positive assessments made by the ECB in relation to the capital increases made by the bank before 2019
198
By the second complaint, the applicants claim that the ECB breached, in a sufficiently serious manner, the principle of the protection of legitimate expectations by making positive assessments of the capital increases made by the bank before 2019.
199
In that regard, it should be noted that, in their written pleadings, the applicants refer in a generic manner to the capital increases made by the bank in 2015, 2016, 2017 and 2018, without identifying precisely which were specifically concerned by the complaint.
200
Moreover, the applicants have failed to provide any information to show that positive assessments had been made by the ECB concerning the capital increases made by the bank before 2019 and that those assessments satisfied the requirements referred to in paragraph 190 above in order to be able legitimately to give rise to a specific expectation on their part as to the conduct which the ECB would adopt.
201
It is necessary, for a complaint to be admissible, that the basic legal and factual particulars relied on be stated, at least in summary form, coherently and intelligibly in the documents submitted by the applicant. Such information is essential to enable the defendant to prepare its defence and the Court to rule on the arguments raised (see, to that effect, judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission, T‑250/12, EU:T:2015:749, paragraph 101 and the case-law cited).
202
The second complaint must therefore be rejected as inadmissible.
– The third complaint, concerning the assurances given by the ECB as to the soundness of the bank
203
By the third complaint, the applicants claim that the ECB breached, in a sufficiently serious manner, the principle of the protection of legitimate expectations by giving the bank’s shareholders assurances as to the bank’s soundness that would have led them to make significant investments.
204
In that regard, it should be noted that the applicants have not provided any evidence in support of their claim that would make it possible to identify the assurances given by the ECB as to the bank’s financial soundness, or the circumstances in which those assurances were given.
205
In accordance with the case-law cited in paragraph 201 above, it is necessary, in order for a complaint to be admissible, that the basic legal and factual particulars relied on be stated, at least in summary form, coherently and intelligibly in the documents submitted by the applicant.
206
In those circumstances, the third complaint must therefore be rejected as inadmissible.
207
Since all the complaints have been rejected, the line of argument concerning the seventh instance of unlawful conduct must be rejected in its entirety.
The eighth instance of unlawful conduct, in that the ECB breached, in a sufficiently serious manner, the shareholders’ right to property by causing, by its acts and omissions, a significant reduction in the value of their shareholdings in the bank
208
As regards the eighth instance of unlawful conduct alleged against the ECB, the applicants claim that it breached their right to property by causing, by its acts and omissions, a significant reduction in the value of their shareholdings in the bank.
209
The ECB, supported by the Commission, disputes that line of argument.
210
In that connection, it should be recalled that, pursuant to Article 17(1) of the Charter, everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.
211
The case-law considers that the right to property, as laid down in Article 17(1) of the Charter, constitutes a rule of law conferring rights on individuals (see, to that effect, judgments of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 66, and of 23 May 2019, Steinhoff and Others v ECB, T‑107/17, EU:T:2019:353, paragraph 96).
212
Thus, it is necessary to examine whether the applicants’ right to property was gravely and manifestly breached by the ECB.
213
In that regard, it must be borne in mind that, according to the case-law cited in paragraph 201 above, in order for an action to be admissible it is necessary that the basic legal and factual particulars relied on be stated, at least in summary form, coherently and intelligibly in the written pleadings submitted by the applicants.
214
In the present case, the applicants have stated that the value of their shareholdings had fallen and attributed that development to the decisions adopted by the bank following the measures taken by the ECB, without, however, establishing that those measures had caused that result and without having submitted an analysis to show that that result had not been caused, directly or indirectly, in whole or in part, by other facts or other circumstances.
215
In those circumstances, the argument concerning the eighth instance of unlawful conduct alleged against the ECB must be rejected as inadmissible.
216
In the light of the foregoing considerations, it must be concluded that none of the unlawful conduct alleged against the ECB relied on by the applicants is capable of giving rise to non-contractual liability on the part of the European Union within the meaning of the third paragraph of Article 340 TFEU.
217
On that ground, the action must be dismissed without it being necessary either to assess whether the other conditions compliance with which is required by the case-law in order for an EU institution to incur liability, namely the fact of damage and the existence of a causal link between the conduct alleged and the damage pleaded, or to rule on the measures of inquiry requested by the applicants.
Costs
218
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
219
Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the ECB and the Commission.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Malacalza Investimenti Srl and Mr Vittorio Malacalza to pay the costs.
Porchia
Jaeger
Madise
Nihoul
Verschuur
Delivered in open court in Luxembourg on 5 June 2024.
[Signatures]
(
*1
)	Language of the case: Italian.