Appeal brought on 26 July 2022 by Finanziaria d’investimento Fininvest SpA (Fininvest) against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 11 May 2022 in Case T-913/16 Finanziaria d’investimento Fininvest SpA (Fininvest), Silvio Berlusconi v European Central Bank (ECB)

(Case C-512/22 P)

(2022/C 359/60)

Language of the case: Italian

Parties

Appellant: Finanziaria d’investimento Fininvest SpA (Fininvest) (represented by: M. Carpinelli, R. Vaccarella, A. Baldaccini and A. Saccucci, avvocati)

Other parties to the proceedings: European Central Bank, European Commission, Silvio Berlusconi

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment of the General Court of the European Union of 11 May 2022;

— consequently, annul the ECB’s decision of 25 October 2016;

— in the alternative, in the event that the Court of Justice finds that it cannot make a decision as matters stand, set aside the judgment of the General Court of the European Union of 11 May 2022 and refer the case back to a different chamber of the General Court;

— order the ECB to pay the costs, including those incurred at first instance;

— where necessary, take the appropriate measures of organisation and measures of inquiry in order to acquire the minutes of the hearing of 16 September 2021 and the sound recording of the hearing.

Grounds of appeal and main arguments

First ground. Error in law in the assessment of the effects of the control exercised by the applicants at first instance over Banca Mediolanum — Manifest error of assessment and distortion of the facts concerning the acquisition of the qualifying holding — Unlawful substitution of the grounds of the decision at issue — Infringement of the audi alteram partem principle — Error in law in the legal classification of the type of ‘acquisition’ of a qualifying holding under EU law and national law — Failure to apply national law — Infringement of the principle of sincere cooperation — Contradictory nature of the statement of reasons — Misuse of powers

The ground is divided into six parts concerning the following matters:

(a) the assessment of the joint control over Banca Mediolanum exercised, ‘before the merger in question’, by the applicants at first instance through a shareholders’ agreement entered into with Fin. Prog Italia: incorrect assessment of the consequences;

(b) the status of Silvio Berlusconi as a qualifying shareholder of Banca Mediolanum was incorrectly reconstructed from the sequence ‘measure of Banca d’Italia of 7 October 2014’ — ‘merger’ — ‘judgment of the Consiglio di Stato (Council of State, Italy) of 3 March 2016’; misrepresentation of the facts and clear errors in law;

(c) the substitution by the General Court of its own reasons for those of the author of the decision at issue; infringement of Articles 263 and 264 TFEU;

(d) the new concept under EU law of acquisition of a qualifying holding: failure to apply national law;

(e) the creation by the General Court of a category not provided for under the rules of EU law;

(f) the distinction between indirect qualifying holdings and direct qualifying holdings: infringement of Article 22 CRD IV and of Article 22 of Legislative Decree No 385/1993 (‘TUB’).

Second ground. Errors in law concerning the finding that Directive No 2013/36/EU is lawful (1) — Infringement of the general principle of non-retroactivity of measures and of the general principle of legal certainty — Manifestly contradictory nature of the statement of reasons

Third ground. Errors in law — Infringement of the principle of res judicata and of the general principle of legal certainty — Infringement of the right to effective judicial protection (reference to the ninth ground) — Failure to state reasons

Fourth ground. Errors in law concerning the application of the national rules on the implementation of Directive No 2013/36/EU — Infringement of the principle of legal certainty — Failure to take into consideration a decisive event which occurred during proceedings (rehabilitation) which meant that the person concerned automatically reacquired his or her status as having a good reputation within the meaning of the national implementing rules.

The ground is divided into four parts concerning the following matters:

(a) the incorrect implementation into national law of Article 23(1) of the CRD IV and, consequently, the unlawful nature of Ministerial Decree 144/1998;

(b) the failure to publish the list (of documents to be submitted for the purposes of authorisation) provided for in Article 23(4) of the CRD IV;

(c) the non-enforceable nature of the 2008 Guidelines;

(d) the rehabilitation measure obtained by Silvio Berlusconi: failure to take into consideration a decisive event which occurred during proceedings which meant that he automatically reacquired his status as having a good reputation within the meaning of the national implementing rules.

Fifth ground. Error in law in the interpretation of Article 23 of Directive No 2013/36/EU in relation to the significance of the requirement to have regard to the possible influence of the proposed acquirer in the event of the loss of his or her status as having a good reputation under national law

Sixth ground. Errors in law as to the significance of the principle of proportionality in the application of Directive No 2013/36/EU in relation to the alleged automatic decision-making under a provision of national implementing law — Prohibition on automatic decision-making — Failure to state reasons or inadequate statement of reasons

Seventh ground. Errors in law in the interpretation and application of Article 22(2) of Regulation (EU) No 1024/2013 (2) and of Article 32(1) and (5) of Regulation (EU) No 468/2014 (3) — Infringement of the relevant applicable provisions of national law — Infringement of Articles 41 and 47 of the Charter — Manifestly illogical and contradictory nature of the statement of reasons

Eighth ground. Unlawful nature of the brief period (three days) provided for in Article 31(3) of Regulation EU No 468/2014 for the submission of comments — Infringement of Article 41 of the Charter and of the corresponding general principles of law derived from the constitutional traditions shared by the Member States — Contradictory and illogical nature of the statement of reasons — Failure of the time period to observe the criteria of reasonableness and proportionality and failure to exercise jurisdiction by the General Court in that regard

Ninth ground. Errors in law in the application of Article 84 of the Rules of Procedure of the General Court in relation to new pleas in law introduced after delivery of the judgment of the Court of Justice of 19 December 2018 — Manifest error of assessment concerning the existence of a ‘new matter of law’, failure to state reasons and manifestly illogical nature of the statement of reasons — Infringement of the principle of effective judicial protection and of Article 47 of the Charter — Failure to state reasons for its failure to examine new pleas in law of its own motion

Tenth ground. Manifest error of assessment as regards the admissibility of the plea in law concerning the document from social services confirming that probation had been concluded — Manifestly illogical nature of the statement of reasons — Infringement of national law — Infringement of Article 84 of the Rules of Procedure of the General Court — Infringement of the principle of effective judicial protection and of Article 47 of the Charter — Failure to state reasons for its failure to examine the plea in law of its own motion

Eleventh ground. Infringement of Article 85(3) of the Rules of Procedure of the General Court concerning the inadmissibility of new evidence — Manifest error of assessment concerning the significance, for the purposes of the decision, of the judgment of the Court of Justice of 19 December 2018 and of the judgment of the Sezioni Unite della Corte di Cassazione (Combined Chamber of the Court of Cassation, Italy) No 10355/2021 — Failure to examine a document that is decisive for the purposes of the admissibility of new pleas in law — Infringement of the rights of the defence and of Article 47 of the Charter in particular

(1) 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).

(2) 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).

(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 (SSM Framework Regulation) (ECB/2014/17) (OJ 2014 L 141, p. 1).