Case C-789/22 P: Appeal brought on 22 December 2022 by the European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 12 October 2022 in Case T-502/19 Francesca v ECB
Date: 2022-12-22
Institutions: Court of Justice
Subjects: EU banking union, European Central Bank, Italy, bank, banking supervision, law of banking, national law, powers of the institutions (EU)








C_2023063EN.01002701.xml










20.2.2023   


EN


Official Journal of the European Union


C 63/27






Appeal brought on 22 December 2022 by the European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 12 October 2022 in Case T-502/19 Francesca v ECB

(Case C-789/22 P)
(2023/C 63/34)
Language of the case: Italian

Parties


Appellant: European Commission (represented by: V. Di Bucci, D. Triantafyllou, A. Nijenhuis, acting as Agents)

Other parties to the proceedings: Francesca Corneli, European Central Bank

Form of order sought

The appellant claims that the Court should:






1.


set aside the judgment of the General Court (Fourth Chamber, Extended Composition), delivered on 12 October 2022 and of which the Commission was notified on the same day, in Case T-502/19, Francesca Corneli v European Central Bank;










2.


dismiss the action at first instance as inadmissible and unfounded, and order the applicant to pay the costs at both instances;










3.


in the alternative, set aside the judgment of the General Court and refer the case back to the General Court.





Grounds of appeal and main arguments

In support of its appeal, the Commission raises five grounds.
By its first ground of appeal, the Commission submits that the General Court infringed Article 263 TFEU — finding incorrectly that the decisions at issue at first instance are of direct and individual concern to the applicant at first instance, and that she had a separate interest in bringing an action for the annulment of those decisions — and distorted the facts.
By the second ground of appeal, the Commission claims that, in examining a plea alleging infringement of Article 70(1) of Legislative Decree of 1 September 1993 No 385 consolidating the laws on banking and credit (‘the Consolidated Law on Banking’), the General Court infringed Article 84 of the Rules of Procedure of the General Court. That plea was not raised in the action at first instance and it was not possible to infer it out of time from the reply, as it was not based on matters of law and fact which came to light during the course of the procedure. If so, the General Court breached the rule that a court is to confine itself to the matters raised before it and the prohibition on raising of its own motion a plea for annulment pertaining to the substantial legality of the decision at issue.
By the third ground of appeal, the Commission submits that the General Court infringed Article 4(3) of Council Regulation (EU) No 1024/2013 (1) and Article 70(1) of the Consolidated Law on Banking, incorrectly interpreting in relation to the conventional principles of interpretation of Italian law the conditions set out in the latter provision for the dissolution of managing or supervisory bodies of banks. It claims that the General Court erred in its textual interpretation of Article 70, failing to take account of the need to carry out a systemic, historic and teleological interpretation in accordance with the Constitution of the Italian Republic and, in addition, failed to consider national case-law.
By the fourth ground of appeal, the Commission argues that the General Court infringed the third paragraph of Article 288 TFEU, incorrectly holding that Article 70(1) of the Consolidated Law on Banking cannot be interpreted in a way that complies with Article 29 of Directive 2014/1059/EU. (2) More specifically, the General Court failed to fulfil its duty as a court to do whatever lies within its jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it.
By the fifth ground of appeal, the Commission claims that the General Court infringed Article 4(3) of Regulation (EU) No 1024/2013 and the second and third paragraphs of Article 288 TFEU by prohibiting the European Central Bank from basing its own action on the directly applicable provisions of the directives and requiring it to apply national transposing legislation which is contrary to those directives.


(1)  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).

(2)  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).