Case C-571/23 P: Appeal brought on 14 September 2023 by Aldo D’Agostino against the order of the General Court (Fourth Chamber) delivered on 25 July 2023 in Case T-90/23, Aldo D’Agostino v European Central Bank (ECB)
Date: 2023-09-14
Institutions: Court of Justice
Subjects: damages, financial loss, indemnification, loss, operation of the Institutions, president of an institution, press release, price of securities








C_202300962EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/962


27.11.2023





Appeal brought on 14 September 2023 by Aldo D’Agostino against the order of the General Court (Fourth Chamber) delivered on 25 July 2023 in Case T-90/23, Aldo D’Agostino v European Central Bank (ECB)
(Case C-571/23 P)
(C/2023/962)
Language of the case: Italian

Parties


Appellant: Aldo D’Agostino (represented by: M. De Siena, avvocato)

Other party to the proceedings: European Central Bank

Form of order sought

The appellant claims that the order of the General Court of 25 July 2023 in Case T-90/23 dismissing the action brought by Mr Aldo D’Agostino against the European Central Bank should be set aside, and, consequently, that the form of order sought at first instance should be granted, and thus claims that the Court of Justice should:






I.


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






(I.a)


for having caused a collapse in the value of the securities SI FTSE.COPERP belonging to Mr Aldo D’Agostino, annexed to the action at first instance, with a depreciation in the amount of EUR 841 809,34, registering a loss of 99,47 % in the overall value of the capital invested, which is equal to EUR 846 198,90, 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;










(I.b)


for having caused, by that conduct, and as a result of the sharp drop in the Borsa di Milano index referred to above, a decrease in the value of the appellant’s assets;










(I.c)


for having caused material damage in the amount of EUR 841 809,34 in consequential damage and EUR 998 683,90 in loss of profit;










(I.d)


for having caused a total amount of material damage of EUR 1 840 493,24;










(I.e)


for having caused non-material damage in the form of psychological harm to the appellant and the appellant’s family, non-material damage in the form of damage to honour and reputation, and to personal and professional identity, quantified at EUR 1 000 000;








and therefore:






(II)


order the European Central Bank, represented by the President pro tempore, to pay compensation to the appellant, Mr Aldo D’Agostino, for the material damage made up of the consequential damage and the loss of earnings, for the non-material damage 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 appeal, by the payment of the following amounts:






(II.1)


EUR 1 840 493,24 for material damage;










(II.2)


EUR 1 000 000 for non-material damage;










(II.3)


therefore, the overall amount of EUR 2 840 493,24;










(II.4)


an amount for damage in the form of loss of chance, to be determined by the Court of Justice on the basis of an equitable assessment, and;










(II.5)


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














(III)


In the alternative, compensate the appellant by ordering the ECB, represented by the President pro tempore, to pay, in respect of the categories of damage listed above, different amounts to be determined during the proceedings as decided by the Court;










(IV)


Default interest should also be applied, to be calculated from 12 March 2020, the date of the event that gave rise to the damage, to the the date on which the compensation is actually paid;










(V)


Order the defendant to pay the costs.





Grounds of appeal and main arguments

In support of his appeal, the appellant claims, in the first place and as a preliminary point, that the General Court is silent as to whether, by the statement of 12 March 2020, the President of the ECB infringed the rules referred to in the application, merely stating that those rules are not intended to confer rights on individuals, resulting in an inadequate and incomplete reasoning.
In the second place, the appellant disputes the General Court’s statements, in paragraphs 15 to 28 of the order under appeal, according to which there was no non-contractual liability on the part of the ECB inasmuch as, in the case at hand, the ECB had not infringed any rule of law intended to confer rights on individuals. The appellant submits that the provisions relied on by him are institutional rules which define the powers of the various ECB bodies by conferring on them specific powers. They confer rights on individuals, in particular, the right to have the various bodies act in accordance with the institutional powers conferred on them by law, in accordance with the principle of legitimate expectations.
In the third place, in the alternative, the appellant submits that, should it be found that the rules infringed by the President of the ECB are not intended to confer rights on individuals, as stated by the General Court, the reasoning of that court cannot be accepted in so far as it is the result of a restrictive interpretation of Article 340 TFEU. That provision, like Article 2043 of the Codice civile (Italian Civil Code), does not in any way draw a distinction that favours rules that are designed to confer rights on individuals over other rules, by triggering a right to compensation on the part of the injured party exclusively where rules belonging to the first category have been infringed. Furthermore, the reasoning is at odds with the principles set out in the judgment of the General Court in Case T-868/16, in which it was held that non-contractual liability of the European Union may be said to exist in the presence of any unlawful conduct causing damage that is capable of establishing such liability.
In the fourth place, the appellant disputes the General Court’s statement in paragraph 32 of the order under appeal, according to which the appellant, in arguing that the President of the ECB had abused her powers, had failed to provide further details in respect of that argument in the application and had presented it solely as a consequence of the infringement of the provisions referred to in the application, not intended to confer rights on individuals. The appellant claims that abuse of power is ‘the use of power in a way that is not consistent with the legal provisions’ and arises where an EU institution departs from general principles such as fairness, good faith, or due care; in the appellant’s submission, it is clear that, by making the statement complained of, the President of the ECB failed to observe the principle of fairness and of due care.
In the fifth place, the appellant disputes the General Court’s statement according to which he had not adduced evidence of a causal link between the contested statement made by the President of the ECB and the drop in the stock exchange index, maintaining that such evidence can be inferred from the application and its annexes. He claims that the press coverage regarding the press conference given by the President of the ECB on 12 May 2020, the commentary of Italian and international media outlets and the statement of the President of the Italian Republic show that it was widely believed that the drop in the value of the stock exchange was exclusively caused by the contested statement of the President of the ECB. Moreover, the initiative on the part of the President of the ECB to apologise and correct the statement indicates her own recognition of the extremely damaging consequences on the markets. Such evidence was also adduced in the content, findings and the annexes to the sworn opinion of the consultant commissioned by the appellant.
In the sixth place, the appellant disputes the General Court’s statement in paragraph 33 of the order under appeal concerning the significantly limited probative value of the sworn expert opinion, on the ground that it had been drawn up by an consultant commissioned by the appellant. The appellant claims that the General Court failed to take account of the fact that this was sworn advice before the competent judicial body that heard the consultant making the following oath: ‘
            I swear to have truly and faithfully performed the tasks entrusted to me, for the sole purpose of aiding the court in the establishment of the truth
            ’.


ELI: http://data.europa.eu/eli/C/2023/962/oj
ISSN 1977-091X (electronic edition)