Case T-326/23: Action brought on 15 June 2023 — D’Agostino v ECB
Date: 2023-06-15
Institutions: General Court
Subjects: abuse of power, capital depreciation, damages, indemnification, investment, loss, operation of the Institutions, price of securities, securities








C_2023278EN.01002401.xml










7.8.2023   


EN


Official Journal of the European Union


C 278/24






Action brought on 15 June 2023 — D’Agostino v ECB
(Case T-326/23)
(2023/C 278/36)
Language of the case: Italian

Parties


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

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:






—


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






(a)


for having caused a collapse in the value of the securities SI FTSE.COPERP belonging to Mr Aldo D’Agostino, as documented and described in the application, with a depreciation in the amount of EUR 626 134,29, registering a loss of 90,84 % in the overall value of the capital invested in the amount of EUR 689 259,96, as the famous statement made by Ms Christine Lagarde, as President of the ECB, on 12 March 2020 that ‘we are not here to close spreads. This is not the function … of the ECB’ caused a significant fall in the value of securities in all markets worldwide, including a fall of 16,92 % at the Borsa di Milano, quantified in a percentage that has never been seen before in the history of that institution; by that sentence, spoken during a press conference to the entire world, she communicated that the ECB would no longer support the value of securities issued by distressed countries and, therefore, communicated a complete shift in the monetary policy adopted by the ECB while headed by the previous President, whose mandate ended in November 2019;










(b)


for having caused, by that conduct and therefore by having spread inaccurate information resulting in the sharp drop in the Borsa di Milano index referred to above, a decrease in the value of the applicant’s assets;










(c)


for having caused economic loss to the applicant in the amount of EUR 626 134,29 in consequential damage and EUR 813 464,61 in loss of earnings;










(d)


for therefore having caused economic loss to the applicant in the overall amount of EUR 1 439 598,90;










(e)


for having caused non-material damage in the form of psychological harm to the applicant and the applicant’s family, damage to honour and reputation, and to personal and professional identity, quantified at EUR 500 000;










(f)


for having caused damage in the form of loss of chance;




and therefore:






—


order the ECB, represented by the President pro tempore, to pay compensation to the applicant, Mr Aldo D’Agostino, for the material damage made up of the consequential damage and the loss of earnings, for the non-material damage set out above and for the damage resulting from loss of chance, assessed according to the criteria set out in the relevant sections and paragraphs of the present application, by the payment to the applicant of the following amounts:






—


EUR 1 439 598,90 for material damage;










—


EUR 500 000 for non-material damage; therefore, the overall amount of EUR 1 939 598,90, and an amount for damage in the form of loss of chance, to be determined by the Court on the basis of an equitable assessment, and










—


payment of statutory interest calculated from 12 March 2020, date of the event giving rise to damage, until effective compensation.


















—


In the alternative, compensate the applicant by ordering the ECB, represented by the President pro tempore, to pay Mr Aldo D’Agostino, in respect of the categories of damage listed above, different amounts to be determined during the proceedings as decided by the Court, also by way of an expert opinion to be made available to the Court under Article 70 of the Rules of Procedure of the General Court of the European Union.
Statutory interest should also be applied, calculated from 12 March 2020, date of the harmful event and until effective compensation;










—


order the defendant to pay the costs.





Pleas in law and main arguments

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






1.


First plea, alleging that the ECB is liable under the third paragraph of Article 340 TFEU and Article 2043 of the Italian Civil Code for the material and non-material damage suffered by the applicant and stating the amounts of the heads of damage suffered;










2.


Second plea, concerning the scope of the material and non-material damage and the loss of chance that the applicant asserts he has suffered and explaining the principles applied in order to determine them;










3.


Third plea, based on the principles set out in the case-law of the European Union, particularly in the judgments of 28 October 2021, Vialto Consulting v Commission, C-650/19 P, of 9 February 2022, QI and Others v Commission and ECB, T-868/16, and of 21 January 2014, Klein v Commission, T-309/10.
The plea sets out the conditions to be met for a European institution to be non-contractually liable in respect of a Union citizen and sets out the positive test for the existence of those conditions, also carried out by the technical consultant in the sworn expert opinion attached to the application, comparing the EU legislation governing the ECB, bodies and corresponding duties.
The plea emphasises the ECB’s infringements of EU primary and secondary law and infringements and abuse of powers by the President of the ECB.
By that plea, the applicant also claims infringement by the ECB, represented by its President, on 12 March 2020 of Article 127 TFEU in Chapter 2 thereof, entitled ‘Monetary Policy’, Articles 3, 10 to 13 and 38 of the Statute of the European System of Central Banks and of the European Central Bank and Article 17 points 17.2 and 17.3 of the Rules of Procedure adopted by decision of the ECB of 19 February 2004; (1)











4.


The fourth plea quantifies, gives reasons for and documents the material damage suffered by the applicant (consequential damage and loss of earnings);










5.


The fifth plea illustrates, gives reasons for and documents the psychological harm and damage to reputation and to personal and professional identity;










6.


The sixth plea illustrates, gives reasons for and proves, by presumption and by the calculation of probabilities, the damage in the form of loss of chance on which the claim for equitable settlement is based;










7.


Seventh plea, based on the principles set out in the case-law of the European Union regarding non-material damage caused by the European institutions in respect of Union citizens, particularly in the judgment of the General Court of 12 September 2007, Combescot v Commission, T-250/04.






(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).