ABLV Bank AS and Others v European Central Bank.
Date: 2021-05-06
39


By contrast, it must be held that the objections to the General Court’s reasoning are unfounded. As the General Court correctly noted, it follows from the case-law that, under the fourth paragraph of Article 263 TFEU, a natural or legal person may challenge only measures the legal effects of which are binding on, and capable of affecting the interests of, that person by bringing about a distinct change in his or her legal position (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 54; and of 31 January 2019, International Management Group v Commission, C‑183/17 P and C‑184/17 P, EU:C:2019:78, paragraph 51). Thus, it is in principle those measures which definitively determine the position of an institution upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, that constitute acts open to challenge, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 48 and the case-law cited). Consequently, intermediate measures setting out an assessment by the institution and whose aim is to prepare the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment (see, to that effect, judgments of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 50, and of 15 March 2017, Stichting Woonpunt and Others v Commission, C‑415/15 P, EU:C:2017:216, paragraph 44).
40


In order to determine whether the acts at issue constitute preparatory measures, as the General Court held in the orders under appeal, or whether they are, as the appellants maintain, acts which are open to challenge, for the purposes of Article 263 TFEU, it is necessary to look to the actual substance of those acts (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 46 and the case-law cited) and to the intention of those who drafted them, in this case, the ECB (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
41


In that regard, the Court has stated that examining the substance of an act involves assessing its effects on the basis of objective criteria, such as the content of the act in question, taking into account, as appropriate, the context in which it was adopted and the powers of the EU institution, body, office or agency which adopted it (see, to that effect, judgments of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 55, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47), powers which should not be understood in the abstract but should be regarded as factors that inform the specific analysis of the content of that act, which is central and indispensable (see, to that effect, judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraphs 49, 51, 52 and 55).
42


In so far as the appellants make the intention which they ascribe to the ECB when it adopted the acts at issue one of the central elements of the first ground of appeal, it must also be stated that the Court has emphasised that, while it is clear from the case-law that it is possible to take into consideration a subjective criterion relating to the intention that led the EU institution, body, office or agency which drafted the contested act to adopt it, that subjective criterion can play only a complementary role as compared with the objective criteria referred to in the preceding paragraph and, therefore, cannot be given greater weight than those objective criteria, nor can it affect the assessment of the effects of the resulting contested act (judgment of 21 January 2021, Germany v Esso Raffinage, C‑471/18 P, EU:C:2021:48, paragraph 65).
46


Yet the presumption for which the appellants seek recognition is incompatible with the requirement that, in the case of any given act, its possibly binding nature must be determined in the light of its substance and the intention of those who drafted it, which accords with the case-law recalled in paragraphs 40 to 42 of the present judgment. In addition, that presumption renders Article 263 TFEU largely meaningless, since its application would lead the Courts of the European Union to proceed on the basis that every act of the institutions, bodies, offices or agencies of the European Union is in the nature of a decision, unless they have expressly indicated that that is not the case in relation to a particular act. Furthermore, by leaving it to those institutions, bodies, offices or agencies themselves to classify their acts as being or not being in the nature of a decision and by presupposing that, unless stated otherwise, those acts are binding and therefore constitute decisions, such a presumption would run counter to the case-law cited in paragraph 39 of the present judgment, according to which it is irrelevant whether or not an act is described by the EU institutions, bodies, offices and agencies as being a ‘decision’ (see, to that effect, judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 47 and the case-law cited).
47


While it is, moreover, true that any decision-making act of an EU institution, body, office or agency must comply with the general principles of EU law, which include the principle of proportionality (see, to that effect, judgment of 11 June 2009, Nijemeisland, C‑170/08, EU:C:2009:369, paragraph 41 and the case-law cited), and that, therefore, there are many legally binding acts which contain a proportionality analysis, the presence of such an analysis cannot, reasoning a contrario, be elevated to evidence that an act is binding. It is entirely conceivable that the authority concerned may analyse the proportionality of a measure during an administrative procedure comprising several stages without, however, the substance of an act that is supposed to be an intermediary act being modified as a result.