Iccrea Banca SpA Istituto Centrale del Credito Cooperativo v Banca d'Italia.
Date: 2019-12-03
27


It should be recalled that, according to the Court’s settled case-law, in the context of the cooperation between the Court of Justice and the national courts, the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Court’s Rules of Procedure (judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 21 and the case-law cited).
28


Accordingly, it is, in particular, essential, as stated in Article 94(a) of the Rules of Procedure, that the order for reference contains a summary of the relevant findings of fact made by the referring court or, or at least, an account of the facts on which the questions are based (see, to that effect, judgment of 19 April 2018, Consorzio Italian Management and Catania Multiservizi, C‑152/17, EU:C:2018:264, paragraph 22 and the case-law cited).
30


As regards the arguments of the Italian government seeking to demonstrate that the information thus set out is not such as to establish that Iccrea Banca satisfies the conditions for the exclusion of certain liabilities, laid down in Article 5(1) of Delegated Regulation 2015/63, it is clear that the assessment of those arguments is inextricably linked to the answer to be given to the request for a preliminary ruling and that those arguments again cannot therefore entail the inadmissibility of that request (see, by analogy, judgment of 17 January 2019, KPMG Baltics, C‑639/17, EU:C:2019:31, paragraph 11).
32


In accordance with the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, provided that the questions referred concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 26 and the case-law cited).
37


As regards, first, the aspects of the request for a preliminary ruling intended to enable the referring court to give a ruling on the intervention of the Bank of Italy in the stage of the procedure preceding the adoption of the decisions of the Board on the calculation of the ex ante contributions to the SRF, it must be recalled that Article 263 TFEU confers upon the Court of Justice of the European Union exclusive jurisdiction to review the legality of acts adopted by the EU bodies, offices or agencies, one of which is the Single Resolution Board (see, to that effect, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 42).
38


Any involvement of the national authorities in the course of the procedure leading to the adoption of such acts cannot affect their classification as EU acts, where the acts of the national authorities constitute a stage of a procedure in which an EU body, office or agency exercises, alone, the final decision-making power without being bound by the preparatory acts or the proposals of the national authorities (see, to that effect, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 43).
39


In such a situation, where EU law prescribes that an EU body, office or agency is to have an exclusive decision-making power, it falls to the EU Courts, by virtue of their exclusive jurisdiction to review the legality of EU acts on the basis of Article 263 TFEU, to rule on the legality of the final decision adopted by the EU body, office or agency concerned and to examine, in order to ensure effective judicial protection of the persons concerned, any defects vitiating the preparatory acts or the proposals of the national authorities that would be such as to affect the validity of that final decision (see, to that effect, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 44).
40


It follows, moreover, from reading Article 263 TFEU in the light of the principle of sincere cooperation between the European Union and the Member States enshrined in Article 4(3) TEU that acts adopted by national authorities in a procedure such as that referred to in the preceding paragraphs of the present judgment cannot be subject to review by the courts of the Member States (see, to that effect, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 47).
41


In that regard, the Court has held that, where the EU legislature opts for an administrative procedure under which the national authorities adopt acts that are preparatory to a final decision of an EU institution which produces legal effects and is capable of adversely affecting a person, it seeks to establish between the EU institution and the national authorities a specific cooperation mechanism which is based on the exclusive decision-making power of the EU institution (judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 48).
42


In order for such a decision-making process to be effective, there must necessarily be a single judicial review, which is conducted, by the EU Courts alone, only once the decision of the EU institution bringing the administrative procedure to an end has been adopted, a decision which is, alone, capable of producing binding legal effects such as to affect the applicant’s interests by bringing about a distinct change in his legal position (judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 49).
48


Consequently, the EU Courts alone have jurisdiction to determine, when reviewing the legality of a decision of the Board setting the amount of the individual ex ante contribution to the SRF of an institution, whether an act adopted by a national resolution authority that is preparatory of such a decision is vitiated by defects capable of affecting that decision of the Board, and no national court can review that national act (see, by analogy, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 57).
52


In that regard, it must be recalled that, given the need for a single judicial review of such decisions of the Board, both the type of national legal procedure employed in order to subject preparatory acts adopted by the national authorities to review by a court of a Member State and the nature of the heads of claim or pleas in law put forward for that purpose have no bearing on the exclusive nature of the jurisdiction vested in the EU Courts (see, to that effect, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 51).
53


If a national court were to issue an order obliging a national resolution authority to behave in a particular way when intervening prior to the adoption of a decision of the Board on the calculation of the ex ante contributions to the SRF, that would undermine that concept of a single judicial review while creating a risk that findings, in one and the same procedure, of that national court might diverge from those of the EU Courts which might, subsequently, be called upon to assess, as an ancillary matter, the legality of that intervention when examining an action for annulment, under Article 263 TFEU, brought against that decision of the Board (see, to that effect, judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraph 50).
60


The national resolution authorities, and the national courts called upon to review the actions of those authorities, cannot properly take decisions which conflict with decisions of the Board on the calculation of the ex ante contributions to the SRF and which, in practice, deprive the latter decisions of their effects, by impeding the raising of those contributions (see, by analogy, judgments of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 52; of 20 November 2008, Heuschen & Schrouff Oriëntal Foods Trading, C‑375/07, EU:C:2008:645, paragraph 66, and of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 50 and 51).
61


However, where the outcome of proceedings pending before a national court depends on the validity of a decision of the Board, that court may, as a general rule, refer to the Court a question for a preliminary ruling on the validity of that decision (see, by analogy, judgments of 14 December 2000, Masterfoods and HB, C‑344/98, EU:C:2000:689, paragraph 57, and of 20 November 2008, Heuschen & Schrouff Oriëntal Foods Trading, C‑375/07, EU:C:2008:645, paragraph 68).
63


It must be recalled that, in any event, the possibility for a person to rely, in an action brought before a national court, on the invalidity of provisions contained in a measure of the European Union, which constitutes the basis of a national decision taken concerning him, presupposes either that that person has also brought, pursuant to the fourth paragraph of Article 263 TFEU, an action for annulment of that EU measure within the prescribed time limits, or that that person has not done so, as a result of not having an undoubted right to bring such an action (judgment of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582, paragraph 17 and the case-law cited).
64


In that context, the admissibility of an action brought by a natural or legal person against an act which is not addressed to that person, in accordance with the fourth paragraph of Article 263 TFEU, is subject, inter alia, to the condition that that act is of direct and individual concern to that person (see, to that effect, judgment of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 32 and the case-law cited).
66


It must, in the first place, be recalled that, in accordance with the Court’s settled case-law, the condition that the decision forming the subject matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the fulfilment of two cumulative criteria, namely that the contested measure must, first, directly affect the legal situation of the individual and, secondly, leave no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42, and of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 103).
68


In the second place, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by virtue of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thus distinguishes them individually just as in the case of the person to whom the decision is addressed (judgment of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582, paragraph 31 and the case-law cited).
72


As regards the decision of the Board of 20 May 2016, since Iccrea Banca has not brought an action for the annulment of that decision before the General Court, it cannot claim, before a national court, that that decision is invalid (see, to that effect, judgment of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582, paragraph 43).