Appeal brought on 29 January 2019 by Credito Fondiario SpA against the order of the General Court (Eighth Chamber) made on 19 November 2018 in Case T-661/16, Credito Fondiario v SRB

(Case C-69/19 P)

(2019/C 103/19)

Language of the case: Italian

Parties

Appellant: Credito Fondiario SpA (represented by: F. Sciaudone, F. Iacovone, S. Frazzani and A. Neri, avvocati)

Other party to the proceedings: Single Resolution Board

Interveners: Italian Republic, European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the order under appeal and refer the case back to the General Court;

— order the SRB to pay the costs of the appeal proceedings and those of the proceedings in Case T-661/16;

— in the alternative, set aside the order under appeal in so far as it orders Credito Fondiario to pay the costs of the SRB, and make an equitable decision as to the costs of the proceedings at first instance.

Grounds of appeal and main arguments

The appellant claims that the order under appeal is vitiated by numerous errors of law that amount to both flaws in the judicial reasoning and procedural defects.

I. Incorrect legal characterisation of the facts. Failure to state reasons.

The General Court was wrong to characterise the facts of the case on the basis of the case-law which provides that, in the absence of publication or notification, the period for bringing an action starts to run from the point in time at which the person concerned acquires precise knowledge of the content and grounds of the decision, provided that he requested the full text thereof within a reasonable period.

In particular, the General Court erred in taking the view that the appellant had acquired knowledge of the two SRB decisions by means of the two notes from the Banca d’Italia of 3 May and 27 May 2016. In addition, the General Court was wrong to find that the appellant did not take steps within a reasonable period to obtain the two decisions of the SRB. The General Court failed to have due regard for the context of legal uncertainty. As a result, the General Court erred in finding that the action had been brought out of time in the light of the specific circumstances of the case.

II. Incorrect interpretation and application of the case-law on ‘reasonable period’

The General Court’s finding that the action had been brought out of time is also vitiated by misinterpretation (and consequent misapplication to the case in question) of the case-law on the reasonable duration of the period within which the interested party must take steps to obtain the decision to be contested.

III. Infringement of the appellant’s rights of defence. Infringement and misapplication of Article 126 of the Rules of Procedure of the General Court

Despite having ordered numerous measures of inquiry and measures of organisation of procedure, the General Court did not invite the parties to comment on the matter of whether the action had been brought in time. The General Court addressed the issue of the action being brought out of time for the first time in the order, when it used it as the basis for its decision to dismiss the action, without having placed the parties — in particular the appellant — in a position to make submissions and to be heard on that point.

In addition, the General Court adopted the order under Article 126 of its Rules of Procedure, even though it was clear, for a variety of reasons, that the ground of inadmissibility on which the order for dismissal was based was not manifest.

The General Court thus breached the appellant’s rights of defence.

IV. Incorrect assessment of the inadmissibility of the application made under Article 277 TFEU

The errors in the assessments by which the General Court established the inadmissibility of the application for annulment automatically render the order unlawful in so far as the General Court found the appellant’s application for a declaration of the unlawful nature of Regulation 2015/63 (1) to be inadmissible. The General Court found that the second request was necessarily ancillary to the principal request for annulment, and that, therefore, the manifest inadmissibility of the action for annulment automatically determined the manifest inadmissibility of the application for a declaration of the unlawful nature of Regulation 2015/63.

V. Incorrect assessment regarding the order as to costs. Infringement and misapplication of Articles 134 and 135 of the Rules of Procedure

In the alternative, the appellant challenges the order in so far as the General Court ordered it to pay the costs incurred by the SRB.

According to the appellant, equity required the General Court to apply Article 135 of the Rules of Procedure and to apportion the legal costs in accordance with Article 135(1) thereof, or, as appropriate, to order the SRB to pay at least part of the costs incurred by the appellant, in accordance with Article 135(2) of the Rules of Procedure.

(1) Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).