Appeal brought on 25 May 2021 by PNB Banka AS against the order of the General Court (Tenth Chamber) delivered on 12 March 2021 in Case T-50/20, PNB Banka v ECB

(Case C-326/21 P)

(2021/C 382/13)

Language of the case: English

Parties

Appellant: PNB Banka AS (represented by: O. Behrends, Rechtsanwalt)

Other party to the proceedings: European Central Bank (ECB)

Form of order sought

The appellant claims that the Court should:

— set aside the order under appeal;

— declare void pursuant to Article 264 TFEU the ECB’s decision of 19 November 2019 refusing to instruct the appellant’s insolvency administrator to grant the lawyer authorised by the appellant’s board of directors access to its premises, to the information that it holds and to its staff and resources;

— to the extent that the Court of Justice is not in a position to take a decision on the merits to refer the case back to the General Court for it to determine the action for annulment; and

— order the ECB to pay the appellant's costs and the costs of the appeal.

Pleas in law and main arguments

In support of the appeal, the appellant relies on twelve pleas in law.

First ground of appeal: the General Court incorrectly relied on case law concerning actions brought by non-addressees against EU acts with general effect which require transposition or entail national implementing acts and applies such case law to the present case which concerns a direct action against an individual EU act which can only be challenged by means of an action for annulment pursuant to Article 263 TFEU and which directly produces effects without any need for implementation.

Second ground of appeal: the order under appeal violates the principle that access to the Court of Justice in the context of Article 263 TFEU cannot depend on the Member States.

Third ground of appeal: the order under appeal is inconsistent with the exclusive jurisdiction of the Court of Justice of the European Union pursuant to Article 263 TFEU.

Fourth ground of appeal: the order under appeal is inconsistent with the principle that a remedy is not effective if for structural reasons it is theoretical and illusory.

Fifth ground of appeal: the order under appeal violates Article 51 of the Charter.

Sixth ground of appeal: the order under appeal is based on an erroneous teleological reduction of the ECB’s prudential supervisory competences.

Seventh ground of appeal: the General Court fails to take into consideration that the analysis pursuant to Article 47 of the Charter needs to be based on the manner in which the relevant European institution actually acts and may act and not merely on its ability to give formal binding orders to third parties.

Eighth ground of appeal: the order under appeal is based on an erroneous distinction between prudential supervisory law and insolvency law.

Ninth ground of appeal: the General Court erroneously assumed that the ECB lacks the requisite competence.

Tenth ground of appeal: the order under appeal is based on an erroneous assumption as to the effect of the license withdrawal on the competence of the ECB.

Eleventh ground of appeal: the General Court erroneously assumed that the ECB complied with the judgment of 5 November 2019, ECB and others / Trasta Komercbanka and others (C-663/17 P, C-665/17 P and C-669/17 P, EU:C:2019:923).

Twelfth ground of appeal: the General Court did not appropriately address the appellant’s pleas as to its rights to be heard, the requirement to provide a statement of reason and the nemo auditur principle.