Case T-612/20: Action brought on 4 October 2020 — Malacalza Investimenti v ECB
Date: 2020-10-04
Institutions: General Court
Subjects: EU banking union, Italy, Liguria, bank, banking supervision, board of directors, company in difficulties, national law, principle of proportionality, right to justice








C_2020390EN.01004701.xml










16.11.2020   


EN


Official Journal of the European Union


C 390/47






Action brought on 4 October 2020 — Malacalza Investimenti v ECB
(Case T-612/20)
(2020/C 390/64)
Language of the case: Italian

Parties


Applicant: Malacalza Investimenti Srl (Genoa, Italy) (represented by: M. Condinanzi and L. Boggio, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:






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annul and declare null and void the contested decisions, after establishing that they are unlawful;










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order the defendant to pay the costs.





Pleas in law and main arguments

The present action has been brought against the Decision of the Governing Council of the European Central Bank of 1 January 2019, ECB-SSM-2019-ITCAR-11, addressed to the Board of Directors and supervisory board of Banca Carige S.p.A., adopted on the basis of a draft decision of the ECB’s Supervisory Board, pursuant to Article 26(8) of Council Regulation (EU) No 1024/2013, pursuant to Articles 69 octiesdecies, 70 and 98 of decreto legislativo n. 385 del 1o settembre 1993 (Legislative Decree No 385 of 1 September 1993; ‘TUB’), which transpose Article 29 of Directive 2014/59/EU of the European Parliament and of the Council, in conjunction with Article 9(2) of Regulation (EU) No 1024/2013, to dissolve the management and supervisory bodies of Banca Carige S.p.A., having its registered office in Genoa, and to replace them with three special administrators and with a supervisory committee composed of three members, respectively, as well as the subsequent decisions to extend the extraordinary administration.
In support of the action, the applicant relies on six pleas in law.






1.


First plea in law, alleging failure to observe the principle of proportionality, infringement of Articles 28 and 29 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190), and infringement of Article 69 octiesdecies et seq. of Legislative Decree No 385 (TUB).






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The applicant claims in this regard that the extraordinary administration measure appears to be manifestly excessive and disproportionate.














2.


Second plea in law, alleging breach of the obligation to state reasons (Article 296 TFEU and Article 33 of 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) (OJ 2014 L 141, p. 1)), and infringement of the right to an effective judicial remedy.






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The applicant claims in this regard that the choice of extraordinary administration is not supported by reasons with respect to the gradation of measures that may be taken.














3.


Third plea in law, alleging infringement of the last sentence of Article 29 of Directive 2014/59/EU and failure to observe the principle of sound public administration. In any event, failure to state reasons in that regard.






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The applicant claims in this regard that the appointment made, in so far as regards the nomination, in the context of the extraordinary and temporary administration, of two of the previous board members, as well as of the president and CEO of the former management board, appears to be at variance with the absence of conflicts of interests or potential conflicts of interests.














4.


Fourth plea in law, alleging infringement of Article 70 of the TUB, in so far as the dissolution of company bodies may be ordered in the cases expressly provided for in that provision.










5.


Fifth plea in law, alleging infringement of Article 29 of the Bank Recovery and Resolution Directive (BRRD) and Article 71 of the TUB.






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The applicant claims in this regard that there was a failure to state reasons or an inadequate statement of reasons as regards the existence of a conflict of interests.














6.


Sixth plea in law, alleging infringement of the rules concerning shareholders’ rights contained in Directive (EU) 1132/2017 and in the Italian Civil Code, including as regards implementation of the fundamental principles enshrined in the Charter of Fundamental Rights of the European Union (CFREU), in the European Convention of Human Rights (ECHR) and in the Italian Constitution with respect to the protection of property, the freedom of private economic enterprise and the self-determination of citizens in personal choices.






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The applicant claims in this regard that, as much as banking companies are subject to special rules which take into account the particular nature of the activity carried on by the company and the particular characteristics of the relevant market, EU laws, like national laws, confer on shareholders, as holders of legal rights enjoying protection, a number of rights which the contested measure affects so adversely that it amounts to a substantial and complete denial of those rights.