Case T-90/23: Action brought on 20 February 2023 — D’Agostino v ECB
Date: 2023-02-20
Institutions: General Court
Subjects: Italy, abuse of power, civil code, damages, financial loss, indemnification, interest, price of securities, securities, single monetary policy








C_2023155EN.01006102.xml










2.5.2023   


EN


Official Journal of the European Union


C 155/61






Action brought on 20 February 2023 — D’Agostino v ECB
(Case T-90/23)
(2023/C 155/79)
Language of the case: Italian

Parties


Applicants: Aldo D’Agostino (Naples, Italy) (represented by: M. De Siena, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the General Court should:






—


find and declare that the European Central Bank (ECB), represented by the President Christine Lagarde, is non-contractually liable:






(a)


for having caused a EUR 841 809,34 collapse in the value of the securities owned by Aldo D’Agostino titled SI FTSE.COPERP amounting to a loss equal to 99,47 % of the entire value of the capital invested, namely EUR 846 198,90, in so far as, on 12 March 2020, Christine Lagarde, in her capacity as President of the ECB, used the infamous phrase ‘We are not here to close spreads, this is not the function or the mission of the ECB’ and thereby caused a significant reduction in the value of securities on stock exchanges around the world and a reduction of 16,92 % on the Milan Stock Exchange, namely in a percentage never before seen in the history of that institution; the phrase was used in a press conference broadcast globally, and confirmed that the ECB would no longer guarantee the value of securities issued by countries in difficulty and, therefore, signalled a massive change in the direction of the monetary policy that had been adopted by the ECB under the presidency of the previous President, whose mandate finished in November 2019;










(b)


for having caused a reduction in the value of the applicant’s assets through that conduct and as a result of the huge drop in the index of the Milan Stock Exchange;










(c)


for having caused financial loss of EUR 841 809,34 in the form of actual loss and of EUR 998 683,90 in the form of loss of profit;










(d)


for having caused financial loss amounting to EUR 1 840 493,24 in total;










(e)


for having caused non-financial loss in the form of the psychological suffering of the applicant and the applicant’s family and damage to honour, reputation and personal and professional identity quantifiable at EUR 1 000 000,00;










(f)


for having caused a loss of opportunity;






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order the ECB, in the person of the President for the time being, to provide to Aldo D’Agostino compensation for financial loss (comprising actual loss and loss of profit), the non-financial loss outlined above and a loss of opportunity, assessed according to the criteria set out in the relevant chapters and paragraphs of the application, by making payments in the following amounts:






—


EUR 1 840 493,24 for financial loss;










—


EUR 1 000 000,00 for non-material loss;










—


and, therefore, a total amount of EUR 2 840 493,24;










—


the amount which the Court assesses, according to its own unbiased assessment, in respect of the loss of opportunity;










—


the amount of default interest calculated from 12 March 2020, the date of the event that gave rise to the loss, to the date on which the compensation is actually paid;














—


in the alternative, compensate the applicant by ordering the ECB, in the person of the President for the time being, to pay compensation for the categories of loss listed above, in amounts different from those above, established in the course of proceedings, to the extent deemed fair, including by having recourse to an expert’s report commissioned by the Court, pursuant to Article 70 of the Rules of Procedure of the General Court of the European Union;










—


plus default interest to be calculated from 12 March 2020, date of the event that gave rise to the loss, to the date on which the compensation is actually paid;










—


order the defendant to pay the legal costs.













Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.






1.


First plea in law, alleging that the ECB is liable under the third paragraph of Article 340 TFEU and Article 2043 of the Codice civile (Italian Civil Code) for the financial and non-material loss suffered by the applicant.










2.


Second plea in law, which refers to principles established in the case-law of the European Union, in particular in the judgments of 28 October 2021, Vialto Consulting v Commission (C-650/19 P, EU:C:2021:879), of 9 February 2022, QI and Others v Commission and ECB (T-868/16, EU:T:2022:58) and of 21 January 2014, Klein v Commission (T-309/10, EU:T:2014:19).
The applicant sets out the conditions which must be satisfied for an EU institution to incur non-contractual liability vis-à-vis an EU citizen and alleges that those conditions are satisfied in the present case.










3.


Third plea in law, alleging an infringement of primary and secondary EU law and abuse of power by the President.
The applicant alleges that, on 12 March 2020, the ECB, acting through its President, infringed Article 127 TFEU under Chapter 2, which is headed ‘Monetary Policy’, Articles 3, 10, 11, 12, 13 and 38 of the Statute of the European System of Central Banks and of the European Central Bank, and Article 17.2 and 17.3 of the Rules of Procedure adopted by a decision of the ECB on 19 February 2004. . (1) The applicant claims, by referring to an annexed technical report, that the three conditions that must be satisfied for the ECB to incur liability, have been satisfied and that there is no other cause for the losses.










4.


The fourth plea in law quantifies, substantiates and documents the financial loss, non-material loss and loss of opportunity suffered by the applicant.






(1)  Decision 2004/257/EC of the European Central Bank of 19 February 2004 adopting the Rules of Procedure of the European Central Bank (ECB/2004/2) (OJ 2004 L 80, p. 33), as amended by Decision ECB/2014/1 of the European Central Bank of 22 January 2014 (OJ 2014 L 95, p. 56).