Case C-665/17 P: Appeal brought on 27 November 2017 by the European Commission against the order of the General Court (Second Chamber) delivered on 12 September 2017 in Case T-247/16: Trasta Komercbanka AS and Others v European Central Bank
Date: 2017-11-27
Institutions: Court of Justice
Subjects: banking supervision, business administration, credit institution, damages, liquidation, right of action, right to justice, shareholder, trade licence








C_2018042EN.01000601.xml










5.2.2018   


EN


Official Journal of the European Union


C 42/6





Appeal brought on 27 November 2017 by the European Commission against the order of the General Court (Second Chamber) delivered on 12 September 2017 in Case T-247/16: Trasta Komercbanka AS and Others v European Central Bank
(Case C-665/17 P)
(2018/C 042/10)
Language of the case: English

Parties


Appellant: European Commission (represented by: V. Di Bucci, A. Steiblytė, K.-Ph. Wojcik, Agents)

Other parties to the proceedings: Trasta Komercbanka AS, Ivan Fursin, Igors Buimisters, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV, Rikam Holding SA, European Central Bank

Form of order sought

The applicant claims that the Court should:






—


set aside the order of the General Court (Second Chamber) of 12 September 2017 in case T-247/16, Trasta Komercbanka AS, Mr Ivan Fursin, Mr Igors Buimisters, SIA C & R Invest, Figon Co Limited, G.C.K J Holding Netherlands B.V. and Rikam Holding S.A. — SPF against European Central Bank insofar as it dismisses the objection of inadmissibility as regards the application brought by the shareholders of Trasta Komercbanka AS;










—


dismiss the action brought by Mr Ivan Fursin, Mr Igors Buimisters, SIA C & R Invest, Figon Co Limited, G.C.K J Holding Netherlands B.V. and Rikam Holding S.A. — SPF as inadmissible;










—


order the applicants to pay the costs.





Pleas in law and main arguments

The General Court has erroneously considered that it was necessary to declare admissible an application for annulment brought by shareholders of a credit institution in liquidation against a decision to withdraw the authorisation of the credit institution in order to provide an effective remedy. In so doing, it has neglected the other remedies available to the credit institution, in the form of a timely application for annulment and of a request for interim measures, and to the shareholders, in the form of an action for damages against the European Central Bank before the European Courts and possibly in the form of other actions before national courts.
The appeal is based on the following two pleas:






1)


The applicant submits that the General Court has violated Article 263 TFEU in respect of the condition of legal interest. By holding that the direct shareholders were prevented from exercising their rights to determine the management and policy of the company in liquidation as they would have done if a company was still of going concern, the General Court has erroneously departed from the case-law according to which the shareholders have no legal interest separate from the one of their company. The General Court has further failed to consider that even shareholders of an active company, and certainly minority shareholders, have no right to force the management of the company to bring an action. It has also failed to distinguish between the effects of a decision by the banking supervisor to withdraw a banking authorisation and those of the later decision by a national court to institute liquidation proceedings. Finally, it has wrongly considered that the shareholders of a company in liquidation should be able to exercise their membership rights in the same way as shareholders of an active company.










2)


The applicant submits that the General Court has violated the fourth paragraph of Article 263 TFEU in respect of the conditions of individual and direct concern.




Concerning the first condition, the General Court firstly failed to consider that the possibility to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it. Secondly, it erroneously held that a decision to withdraw a banking authorisation concerns the shareholders of a credit institution, while it only concerns the credit institution itself. Thirdly, it erroneously considered that the decision by the European Central Bank affected the shareholders by reason of certain qualities peculiar to them or of a factual situation which differentiates them from any other persons, while that decision only concerned the credit institution and did not affect the rights of the shareholders. Finally, even assuming that the sole shareholder of a company may be individually concerned by a decision the [European Central Bank] addressed to that company, the General Court wrongly assimilated the situation of individual minority shareholders to the situation of the sole shareholder.
Concerning the second condition, the General Court firstly erred in law when holding that the shareholders were directly concerned by the withdrawal of the banking authorisation by failing to distinguish between the effects of that withdrawal and those of a decision by a national court to initiate liquidation proceedings. Secondly, it wrongly held that the decision of the European Central Bank directly concerned the shareholders because of the intensity of its effects. In so doing, the General Court failed to distinguish between the legal effect of the decision, which are confined to the credit institution, and its economic consequences, which may well extend to shareholders.