Action brought on 7 August 2019 — Malacalza Investimenti v ECB

(Case T-552/19)

(2019/C 328/76)

Language of the case: Italian

Parties

Applicant: Malacalza Investimenti Srl (Genoa, Italy) (represented by: P. Ghiglione, E. De Giorgi and L. Amicarelli, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

— by way of a measure of inquiry, pursuant to Article 91(1)(c) of the Rules of Procedure of the General Court, order the production of the decision adopted by the ECB on 2 January 2019 in respect of Banca Carige S.p.A and of the other documents for which a confirmatory application has been made;

— annul the contested measure, as identified in the introductory part of the application; and

— order the ECB to pay the costs of the proceedings.

Pleas in law and main arguments

The present action concerns ECB Decision No LS/LdG/19/185 of 12 June 2019, sent by email on the same day by the ECB pursuant to Article 8 of Decision ECB/2004/3, concerning the refusal in full of the confirmatory application submitted by Malacalza Investimenti S.r.l. for access to the decision of 2 January 2019 by which the ECB appointed the temporary administrators of Banca Carige S.p.A and to a number of related documents.

In support of the action, the applicant relies on two pleas in law.

1. First plea in law, alleging that the measure refusing access to the ECB decision of 2 January 2019 is unlawful, in particular: — incorrect application of Article 4(1)(c) of Decision ECB/2004/3; absence of a general presumption of non-disclosure of ECB decisions in that they are not merely procedural but have binding effect; — the conditions for the application of Article 4(1)(c) of Decision ECB/2004/3 are not satisfied; information relating to Banca Carige S.p.A. has already been made public including in relation to compliance with the information obligations imposed by the sectoral regulatory framework; — infringement of the principles of proportionality and impartiality resulting from the failure to communicate a non-confidential version of the ECB decision of 2 January 2019; — infringement of the second paragraph of Article 296 TFEU on the ground of a failure to state reasons for the measure refusing access; and — infringement of the applicant’s rights of defence and right to judicial review.

2. Second plea in law, alleging that the refusal to give access to the documents covered by the confirmatory application, other than the ECB decision of 2 January 2019, is unlawful, in particular: — infringement and misapplication of Article 4(1)(c) in conjunction with the first indent of Article 4(2) of Decision ECB/2004/3 on the grounds of failure to satisfy the conditions for application, failure to state reasons and infringement of the rights of the defence; — incorrect application of Article 27 of Regulation (EU) No 1024/2013 (1), Article 53 et seq of Directive 2013/36/EU (2) and Article 32 of Regulation (EU) No 468/2014 (3) and, consequently, non-applicability of the exception relating to the possible confidentiality of the information in the other documents, other than the ECB decision of 2 January 2019.

(1) 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).

(2) 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).

(3) 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 (OJ 2014 L 141, p. 1).