1 By its appeal, Anglo Austrian AAB AG, in liquidation, seeks to have set aside the judgment of the General Court of the European Union of 22 June 2022, Anglo Austrian AAB and Belegging-Maatschappij Far-East v ECB (T‑797/19, EU:T:2022:389; ‘the judgment under appeal’), by which the General Court dismissed its action, brought jointly with Belegging-Maatschappij ‘Far-East’ BV (‘the shareholder’), seeking the annulment of Decision ECB-SSM-2019-AT 8 WHD-2019 0009 of the European Central Bank (ECB) of 14 November 2019, by which the ECB, acting on a proposal from the Finanzmarktaufsichtsbehörde (Financial Markets Supervisory Authority, Austria) (‘the FMA’), withdrew the appellant’s authorisation to have access to the activities of a credit institution (‘the decision at issue’).
2 Article 18 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338; ‘the CRD IV Directive’), headed ‘Withdrawal of authorisation’, provides as follows: ‘The competent authorities may only withdraw the authorisation granted to a credit institution where such a credit institution: … (f) commits one of the breaches referred to in Article 67(1).’
3 Article 67(1) of that directive, headed ‘Other provisions’, provides, in paragraph 1: ‘This Article shall apply at least in any of the following circumstances: … (d) an institution fails to have in place governance arrangements required by the competent authorities in accordance with the national provisions transposing Article 74; … (o) an institution is found liable for a serious breach of the national provisions adopted pursuant to Directive 2005/60/EC [of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15)]; …’
4 Article 74 of that directive, headed ‘Internal governance and recovery and resolution plans’, states, in paragraph 1: ‘Institutions shall have robust governance arrangements, which include a clear organisational structure with well-defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks they are or might be exposed to, adequate internal control mechanisms, including sound administration and accounting procedures, and remuneration policies and practices that are consistent with and promote sound and effective risk management.’
5 Recitals 28, 29 and 34 of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63; ‘the Basic SSM Regulation’) provide as follows: ‘(28) Supervisory tasks not conferred on the ECB should remain with the national authorities. Those tasks should include the power to receive notifications from credit institutions in relation to the right of establishment and the free provision of services, to supervise bodies which are not covered by the definition of credit institutions under Union law but which are supervised as credit institutions under national law, to supervise credit institutions from third countries establishing a branch or providing cross-border services in the Union, to supervise payments services, to carry out day-to-day verifications of credit institutions, to carry out the function of competent authorities over credit institutions in relation to markets in financial instruments, the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and consumer protection. (29) The ECB should cooperate, as appropriate, fully with the national authorities which are competent to ensure a high level of consumer protection and the fight against money laundering. … (34) For the carrying out of its tasks and the exercise of its supervisory powers, the ECB should apply the material rules relating to the prudential supervision of credit institutions. Those rules are composed of the relevant Union law, in particular directly applicable Regulations or Directives, such as those on capital requirements for credit institutions and on financial conglomerates. Where the material rules relating to the prudential supervision of credit institutions are laid down in Directives, the ECB should apply the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and in areas where, on the date of entry into force of this Regulation, those Regulations explicitly grant options for Member States, the ECB should also apply the national legislation exercising such options. Such options should be construed as excluding options available only to competent or designated authorities. This is without prejudice to the principle of the primacy of Union law. It follows that the ECB should, when adopting guidelines or recommendations or when taking decisions, base itself on, and act in accordance with, the relevant binding Union law.’
6 Article 4 of that regulation, headed ‘Tasks conferred on the ECB’, provides: ‘1. Within the framework of Article 6, the ECB shall, in accordance with paragraph 3 of this Article, be exclusively competent to carry out, for prudential supervisory purposes, the following tasks in relation to all credit institutions established in the participating Member States: (a) to authorise credit institutions and to withdraw authorisations of credit institutions subject to Article 14; … 3. For the purpose of carrying out the tasks conferred on it by this Regulation, and with the objective of ensuring high standards of supervision, the ECB shall apply all relevant Union law, and where this Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the ECB shall apply also the national legislation exercising those options. …’
7 Article 9 of the Basic SSM Regulation, headed ‘Supervisory and investigatory powers’, provides, in paragraph 1: ‘For the exclusive purpose of carrying out the tasks conferred on it by Articles 4(1), 4(2) and 5(2), the ECB shall be considered, as appropriate, the competent authority or the designated authority in the participating Member States as established by the relevant Union law. For the same exclusive purpose, the ECB shall have all the powers and obligations set out in this Regulation. It shall also have all the powers and obligations, which competent and designated authorities shall have under the relevant Union law, unless otherwise provided for by this Regulation. In particular, the ECB shall have the powers listed in Sections 1 and 2 of this Chapter. To the extent necessary to carry out the tasks conferred on it by this Regulation, the ECB may require, by way of instructions, those national authorities to make use of their powers, under and in accordance with the conditions set out in national law, where this Regulation does not confer such powers on the ECB. Those national authorities shall fully inform the ECB about the exercise of those powers.’
8 Article 14 of that regulation, headed ‘Authorisation’, provides, in paragraphs 5 and 6: ‘5. Subject to paragraph 6, the ECB may withdraw the authorisation in the cases set out in relevant Union law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such national competent authority. These consultations shall in particular ensure that before taking decisions regarding withdrawal, the ECB allows sufficient time for the national authorities to decide on the necessary remedial actions, including possible resolution measures, and takes these into account. Where the national competent authority which has proposed the authorisation in accordance with paragraph 1 considers that the authorisation must be withdrawn in accordance with the relevant national law, it shall submit a proposal to the ECB to that end. In that case, the ECB shall take a decision on the proposed withdrawal taking full account of the justification for withdrawal put forward by the national competent authority. 6. As long as national authorities remain competent to resolve credit institutions, in cases where they consider that the withdrawal of the authorisation would prejudice the adequate implementation of or actions necessary for resolution or to maintain financial stability, they shall duly notify their objection to the ECB explaining in detail the prejudice that a withdrawal would cause. In those cases, the ECB shall abstain from proceeding to the withdrawal for a period mutually agreed with the national authorities. The ECB may extend that period if it is of the opinion that sufficient progress has been made. If, however, the ECB determines in a reasoned decision that proper actions necessary to maintain financial stability have not been implemented by the national authorities, the withdrawal of the authorisations shall apply immediately.’
9 Article 80 of Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1), headed ‘[National competent authorities’ (“NCAs”)] proposal to withdraw an authorisation’, provides: ‘1. If the relevant NCA considers that a credit institution’s authorisation should be withdrawn in whole or in part in accordance with relevant Union or national law, including a withdrawal at the credit institution’s request, it shall submit to the ECB a draft decision proposing the withdrawal of the authorisation (hereinafter a “draft withdrawal decision”), together with any relevant supporting documents. 2. The NCA shall coordinate with the national authority competent for the resolution of credit institutions (hereinafter the “national resolution authority”) with regard to any draft withdrawal decision that is relevant to the national resolution authority.’
10 Article 83 of that regulation, headed ‘ECB decision on the withdrawal of an authorisation’, states: ‘1. The ECB shall take a decision on the withdrawal of an authorisation without undue delay. In doing so it may accept or reject the relevant draft withdrawal decision. 2. In taking its decision, the ECB shall take into account all of the following: (a) its assessment of the circumstances justifying withdrawal; (b) where applicable, the NCA’s draft withdrawal decision; (c) consultation with the relevant NCA and, where the NCA is not the national resolution authority, the national resolution authority (together with the NCA, the “national authorities”); (d) any comments provided by the credit institution pursuant to Articles 81(2) and 82(3). 3. The ECB shall also take a decision in the cases described in Article 84 if the relevant national resolution authority does not object to the withdrawal of the authorisation, or the ECB determines that proper actions necessary to maintain financial stability have not been implemented by the national authorities.’
11 Paragraph 39(2) and (2b) of the Bundesgesetz über das Bankwesen (Bankwesengesetz) (Federal Law on the banking sector, BGBl. 532/1993), in the version applicable to the facts in the main proceedings (‘the BWG’), provides: ‘(2) Credit institutions must have administrative, accounting and control mechanisms in place for identifying, evaluating, managing and monitoring the risks arising from banking operations and transactions, as well as from their remuneration policy and practices. Those mechanisms must be adapted to the type, scope and complexity of the banking operations carried out. In so far as possible, the administration, accounting and control mechanisms shall also capture operational risk and the risks arising from banking transactions and from any remuneration policy and practices that might come into being. … (2b) In particular, the procedures referred to in subparagraph 2 must cover the following: … 11. the risk of money laundering and terrorist financing; …’
12 Under Paragraph 70(4)(3) of the BWG, where a credit institution infringes, in particular, the provisions of the BWG or measures adopted in order to apply it, the FMA must withdraw the credit institution’s authorisation in cases where other measures set out in the BWG cannot ensure the functioning of the credit institution.
13 Under Paragraph 31(3) of the Bundesgesetz zur Verhinderung der Geldwäscherei und Terrorismusfinanzierung im Finanzmarkt (Federal Law on combating money laundering and terrorist financing on the financial markets, BGBl. I, 118/2016; ‘the FM-GwG’): ‘In the event of failure to meet the obligations referred to in Paragraph 34(2) and (3), the FMA may: … 2. revoke the authorisation granted by the FMA … …’
14 The obligations in Paragraph 34(2) and (3) of the FM-GwG are intended to transpose the provisions on combating money laundering laid down by Directive 2005/60, which was repealed and replaced by Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015 L 141, p. 73).
15 The background to the dispute was set out by the General Court in paragraphs 2 to 9 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as set out below.
16 The appellant, a less significant credit institution, within the meaning of the Basic SSM Regulation, established in Austria, carried on its business under an authorisation granted pursuant to the BWG. The shareholder, a holding company, held 99.99% of the shares in the appellant.
17 On 26 April 2019, the FMA submitted to the ECB a draft decision to withdraw the appellant’s authorisation as a credit institution, in accordance with Article 80(1) of the SSM Framework Regulation.
18 By letter of 14 June 2019, the ECB sent the appellant a draft authorisation withdrawal decision, on which the appellant expressed an opinion on 23 July 2019.
19 By the decision at issue, the ECB withdrew the appellant’s authorisation as a credit institution with effect from the date on which that decision was notified. The ECB determined in essence that, on the basis of the FMA’s findings, made in the context of its task of prudential supervision and concerning continuous and repeated non-compliance with the requirements relating to combating money laundering and terrorist financing and to internal governance by the appellant, the bank was not able to ensure sound management of its risks. The ECB found that the criteria justifying the withdrawal of the appellant’s authorisation to have access to the activities of a credit institution, laid down in Article 18(f) of the CRD IV Directive, and transposed into Austrian law, were met, since the appellant had breached Article 67(1)(d) and (o) of that directive as transposed into Austrian law, and that the withdrawal was proportionate.
20 The ECB also declined to suspend the effects of the decision at issue for 30 days on the grounds that the appellant’s observations were not such as to raise doubt about the lawfulness of the decision, that the decision was not capable of causing irreparable harm and that the public interest in protecting the appellant’s depositors, investors and other partners and the stability of the financial system justified immediate application of that decision.
21 By application lodged at the Registry of the General Court on 19 November 2019, the appellant and the shareholder brought an action for annulment of the decision at issue.
22 In support of their action, the appellant and the shareholder raised five pleas in law, alleging, in essence, infringement of Article 4(1)(a) and Article 14(5) of the Basic SSM Regulation, in that the criteria that had to be met in order to be able to withdraw the authorisation were not met (first plea); infringement of the principle of proportionality (second plea); infringement of Article 34 of the SSM Framework Regulation, read in the light of the right to effective judicial protection resulting from the ECB’s refusal to suspend the application of the decision at issue (third plea); infringement of the appellant’s rights of defence (fourth plea) and infringement of the shareholder’s right to property (fifth plea).
23 By the judgment under appeal, the General Court dismissed the action in its entirety.
24 By its appeal, the appellant claims that the Court of Justice should: - set aside the judgment under appeal; - annul the decision at issue; - in the alternative, in the event that the Court takes the view that it is not in a position to rule on the substance of the case, refer the case back to the General Court; and - order the ECB to pay the costs of both sets of proceedings.
25 By its response, the shareholder claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue; - in the alternative, in the event that the Court takes the view that it is not in a position to rule on the substance of the case, refer the case back to the General Court; and - order the ECB to pay the costs incurred by the appellant in both sets of proceedings.
26 The ECB contends that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
27 By document lodged at the Court Registry on 5 June 2024, the appellant requested that the present case be reassigned to the Court’s Grand Chamber and that the oral part of the procedure be reopened pursuant to Article 83 of the Rules of Procedure of the Court of Justice.
28 In support of its requests, the appellant submits, in essence, that the Advocate General’s Opinion raises a fundamental question for EU law, namely the power of the EU courts to apply national law. Moreover, the appellant relies on its right to effective judicial protection.
29 In that regard, as far as concerns, first of all, the request to have the case reassigned to the Grand Chamber of the Court, it should be observed at the outset that there is no provision in the Statute of the Court of Justice of the European Union or in its Rules of Procedure setting out how a request of this type from a party other than a Member State or EU institution might be dealt with in the context of an appeal (see, by analogy, judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 19).
30 It is true that under Article 60(3) of the Rules of Procedure the formation to which a case has been assigned may at any stage of the proceedings refer the case back to the Court in order that it may be reassigned to a formation composed of a greater number of judges, but that constitutes a measure which the formation to which the case has been assigned in principle decides on freely and of its own motion (judgment of 17 July 2014, Leone, C‑173/13, EU:C:2014:2090, paragraph 20).
31 In the present case, the First Chamber of the Court finds that there is no need to request that the Court reassign the case to the Grand Chamber.
32 In the second place, as regards the reopening of the oral part of the procedure in accordance with Article 82 of the Rules of Procedure, the Court notes, first, that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure of the Court of Justice make provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 8 February 2024, Pilatus Bank v ECB, C‑750/21 P, EU:C:2024:124, paragraph 27 and the case-law cited).
33 Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his or her involvement. It is therefore not an opinion addressed to the judges or to the parties which stems from an authority outside the Court, but rather, it is the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. In those circumstances, the Advocate General’s Opinion cannot be debated by the parties. Moreover, the Court is not bound either by the Advocate General’s submissions or by the reasoning which led to those submissions. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he or she examines in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 8 February 2024, Pilatus Bank v ECB, C‑750/21 P, EU:C:2024:124, paragraph 28 and the case-law cited).
34 Indeed, in accordance with Article 83 of its Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
35 However, in the present case, the Court takes the view that it has all the information necessary to give a ruling and that the information put forward by the appellant in support of its request that the oral part of the procedure be reopened does not constitute new information of such a nature as to be a decisive factor for the decision of the Court which it is called upon to give. The question relating to the interpretation of national law by the General Court, addressed by the Advocate General in her Opinion, forms part of the appellant’s complaints in the context of the appeal, on which the ECB has also adopted a position.
36 In those circumstances, the Court takes the view, after hearing the Advocate General, that there is no need to order the reopening of the oral part of the procedure.
37 In support of its appeal, the appellant, supported by the shareholder, relies on seven grounds of appeal, alleging, in essence, first, a lack of jurisdiction on the part of the General Court, infringement of EU law and, in some circumstances, distortion of the facts; second, a lack of competence on the part of the ECB in the fight against money laundering; third, an incorrect assessment of national law and EU law by the General Court and, in any event, distortion of the facts; fourth, errors in law in the interpretation of Article 67(d) of the CRD IV Directive and of national law; fifth, failure to examine the complaints alleging an infringement of the principle of proportionality; sixth, infringement of its rights of defence; and, seventh, a number of procedural errors which adversely affect its interests.
38 The second ground of appeal, which it is appropriate to examine first, is divided into four parts.
39 By the first part of the second ground of appeal, the appellant submits that recital 28 of the Basic SSM Regulation confers on national authorities, such as the FMA, exclusive competence to combat money laundering, with the ECB having no competence in that area. Accordingly, it criticises the General Court for having failed to examine of its own motion the issue of the ECB’s competence and for having divided up the decision-making process in relation to the withdrawal of authorisation into two parts, one concerning the finding of an infringement of the provisions of anti-money laundering legislation and the other relating to the withdrawal of authorisation as a legal consequence of that infringement.
40 The shareholder adopts the same line of argument. Referring in that regard to a publication authored by members of the ECB’s legal services, it states, inter alia, that the ECB itself acknowledged that it lacked that particular competence.
41 The ECB disputes both the appellant’s line of argument and that of the shareholder.
42 Since, by the first part of the second ground of appeal, the appellant challenges the General Court’s definition of the ECB’s powers, resulting from Article 4(1)(a) of the Basic SSM Regulation, the Court finds that the complaints set out therein are directed against paragraph 29 of the judgment under appeal.
43 In that regard, the Court notes at the outset that the power to withdraw authorisation from credit institutions is, under Article 4(1)(a) of the Basic SSM Regulation, reserved exclusively to the ECB (judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraph 91).
44 Moreover, Article 14(5) of the Basic SSM Regulation provides that the ECB may withdraw the authorisation in the cases set out in relevant EU law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such a national competent authority (judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraph 93).
45 In addition, the cooperation between the ECB and the national competent authorities is expressed, again in accordance with Article 14(5) of the Basic SSM Regulation, first, by the obligation to consult those authorities, in the event that the ECB withdraws the authorisation on its own initiative and, second, in the possibility that those authorities have to propose such a withdrawal to the ECB (judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraph 95).
46 Article 18(f) of the CRD IV Directive refers, among the grounds capable of justifying the withdrawal of a banking licence, to the commission of one of the breaches referred to in Article 67(1) of that directive. In that regard, it has been held that, although the Member States remain competent to implement the anti-money laundering and counter-terrorist financing provisions, as expressly provided for in recital 28 of the Basic SSM Regulation, the ECB has exclusive competence to withdraw authorisation, for all credit institutions, irrespective of their size, even where such withdrawal is based, as in the present case, on the grounds set out in Article 67(1)(d) and (o) of the CRD IV Directive, to which Article 18 of that directive refers, since Article 14(5) of that regulation lays down, as a condition for the withdrawal of authorisation, the existence of one or more grounds justifying withdrawal under Article 18 of that directive (see, to that effect, judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraph 97).
47 Therefore, the General Court did not err in law in holding that the ECB had the power to withdraw the appellant’s authorisation on the basis of the breaches found by the FMA under Article 18(f) and Article 67(1)(d) and (o) of the CRD IV Directive.
48 Consequently, the first part of the second ground must be rejected.
49 By the second part of the second ground of appeal, the appellant, supported by the shareholder, complains that the General Court failed, in paragraph 29 of the judgment under appeal, to take account of the distinction between the ECB’s ‘tasks’ and ‘powers’ and states that that institution does not have the power to apply the national anti-money laundering legislation transposing the relevant directives.
50 It follows from Article 4(3) of the Basic SSM Regulation that an application of the relevant national law by the ECB is possible only within the framework of the ‘tasks’ conferred on the ECB. Consequently, since the ECB does not have the necessary ‘powers’ in that regard, its action is subject to the condition that the national authority acts, externally, under the oversight of the national courts, on the basis of an instruction sent to it by the ECB, in accordance with the third subparagraph of Article 9(1) of that regulation and Article 22 of the SSM Framework Regulation. A different interpretation of Article 4(3) of the Basic SSM Regulation would render that provision unlawful, since it would mean that the application of national law would not be subject to review by the national courts.
51 The ECB contests that line of argument.
52 It is clear from the first subparagraph of Article 4(3) of the Basic SSM Regulation that, for the purpose of carrying out the tasks conferred on it by that regulation, and with the objective of ensuring high standards of supervision, the ECB is to apply all relevant Union law, and where that EU law is composed of directives, the national legislation transposing those directives. The tasks to which paragraph 3 of that article refers include the task of withdrawing the authorisations of credit institutions.
53 Furthermore, it follows from the second subparagraph of Article 9(1) of that regulation that, for the sole purpose of carrying out the tasks conferred on it by, inter alia, Article 4(1) thereof, the ECB is to have all the powers and obligations set out in that regulation.
54 Therefore, the ECB has all the powers provided for by the Basic SSM Regulation for the purposes, inter alia, of carrying out its task of withdrawing authorisations from credit institutions, without the distinction between ‘tasks’ and ‘powers’ relied on by the appellant being relevant in that regard.
55 As regards the complaint alleging that the first subparagraph of Article 4(3) of the Basic SSM Regulation is unlawful in that, if it is interpreted in that way, the consequence of that provision would be that the application of national law would not be subject to review by the national courts, the Court finds that the appellant did not rely on that complaint in support of its action at first instance. Under Article 127(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 190(1) of those rules, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure, which is neither established nor even alleged in the present case.
56 As regards the argument of the appellant and of the shareholder that the ECB’s action is subject to the condition that the national authority acts externally under the supervision of the national courts, the Court notes that, according to the third subparagraph of Article 9(1) of the Basic SSM Regulation, to which the appellant refers, the only situation in which the ECB must require, by way of instructions, the competent national authorities to make use of their powers, under and in accordance with the conditions set out in national law, is specifically where that regulation does not confer such powers on the ECB.
57 In those circumstances, the General Court did not err in law in holding, in paragraph 29 of the judgment under appeal, that, under Article 4(1)(a) of the Basic SSM Regulation and subject to Article 14 of that regulation, by virtue of the tasks conferred on it by that regulation, the ECB is exclusively competent to authorise credit institutions established in the Member States participating in the Single Supervisory Mechanism and to withdraw authorisations from those institutions.
58 Accordingly, the second part of the second ground of appeal must be rejected as in part unfounded and in part inadmissible.
59 By the third part of the second ground of appeal, the appellant submits that the ECB has power, under Article 18 of the Basic SSM Regulation and recital 36 thereof, only to adopt penalties to implement directly applicable EU law, and not to adopt penalties to implement the national law transposing the relevant directives.
60 The ECB disputes that line of argument.
61 At the outset, the Court notes that the appellant does not identify precisely the paragraphs in the grounds of the judgment under appeal which are contested in the third part of the second ground of appeal. According to settled case-law of the Court, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must, if it is not to be found inadmissible, indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (judgment of 24 March 2022, GVN v Commission, C‑666/20 P, EU:C:2022:225, paragraph 51 and the case-law cited).
62 Consequently, the third part of the second ground of appeal must be rejected as inadmissible.
63 By the fourth part of the second ground of appeal, the appellant, supported by the shareholder, criticises the General Court for having disregarded, in paragraph 29 of the judgment under appeal, the fact that the ECB’s power is limited to specific tasks relating to the supervision of banking activities in the strict sense of EU law, that is to say, deposit and credit activities carried out simultaneously. By contrast, the vast majority of the activities subject to authorisation do not come within the scope of the Basic SSM Regulation and therefore come solely within the competence of the national authorities.
64 The ECB contests that line of argument.
65 It must be stated that the line of argument based on the alleged limitation of the ECB’s power - which, as the appellant maintains in the fourth part of the second ground of appeal, was disregarded by the General Court - was put forward only at the appeal stage. According to the settled case-law of the Court of Justice, since, in an appeal, the oversight of the Court of Justice is confined to a review of the findings of law on the pleas argued before the General Court, a party cannot put forward for the first time before the Court of Justice an argument which it has not raised before the General Court. To allow appellants to raise for the first time before the Court of Justice arguments which they have not made before the General Court would be to allow them to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, not published, EU:C:2023:630, paragraph 101 and the case-law cited).
66 The fourth part of the second ground of appeal must therefore be rejected as inadmissible.
67 In the light of the findings above, the second ground of appeal must be rejected as inadmissible in part and unfounded in part.
68 By the first ground of appeal, the appellant, supported by the shareholder, refers to Article 58 of the Statute of the Court of Justice of the European Union and claims that the General Court exceeded its jurisdiction and thus infringed Article 263 TFEU, in so far as it ruled on questions relating to the interpretation and application of national law on combating money laundering. Furthermore, that exceeding of the limits of its jurisdiction led the General Court to adopt contradictory reasoning, since, on the one hand, it held that the question whether the essential condition for withdrawing the authorisation at issue - namely whether there has been an infringement of the anti-money laundering provisions which is sufficiently serious and still relevant - was satisfied had to be decided at national level, but that, on the other hand, it ruled on that question itself, at least in part.
69 In the alternative, the appellant submits that the General Court distorted national law. In particular, in paragraphs 45 to 47 of the judgment under appeal, the General Court amalgamated national law with EU law, for example by applying by analogy principles of EU administrative law in order to determine the scope of Austrian administrative decisions.
70 For its part, the shareholder submits, in essence, that the General Court appropriated the jurisdiction of national courts and that, therefore, in the context of disputes concerning the matters at issue in the present case, no reference could be made to the Court of Justice for a preliminary ruling. As is apparent from the judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158), such a transfer would be incompatible with the jurisdiction conferred on the Court of Justice as defined in Article 267 TFEU and, consequently, with an essential element of the EU legal order.
71 The shareholder adds, in essence, that the General Court erred in law by directly applying provisions of EU law derived from the CRD IV Directive and by replacing the Austrian law transposing that directive with the directly applicable case-law of the EU Courts.
72 The ECB contends that this ground of appeal is inadmissible in its entirety and is, in any event, unfounded.
73 Since, as is apparent from the first subparagraph of Article 4(3) of the Basic SSM Regulation, for the purpose of carrying out the tasks conferred on it by that regulation, the ECB is to apply all relevant Union law and, where that regulation is composed of directives, the national law transposing those directives, the appellant cannot validly call into question the jurisdiction of the General Court in that regard (see, to that effect, judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraphs 138 to 142).
74 In addition, the appellant has failed to establish that the reasoning of the judgment under appeal is contradictory, since it has not identified the paragraphs of the judgment in which the General Court allegedly found that it had breached anti-money laundering provisions.
75 As regards the argument raised in the alternative by the appellant, alleging a misapplication of national law, the Court notes, as the Advocate General observed in point 73 of her Opinion, that the appellant does not clarify how the principles applied by the General Court differ from Austrian administrative rules, in particular how applying national law would lead to consequences different from those referred to by the General Court, and, therefore, what errors the General Court allegedly made in that regard.
76 As regards the judgment of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158), relied on by the shareholder, the Court notes that it held in that judgment that ad hoc arbitral tribunals do not have sufficient links with the judicial systems of the Member States and are therefore not entitled to make a reference to the Court for a preliminary ruling under Article 267 TFEU. It is therefore not relevant in the context of the present case.
77 As regards the shareholder’s line of argument that the General Court erred in law by directly applying provisions of EU law from the CRD IV Directive and by replacing the Austrian law transposing that directive with the directly applicable case-law of the EU Courts, suffice it to note that, contrary to the conditions established by the case-law set out in paragraph 61 of the present judgment, the appellant does not specifically identify the paragraphs of the judgment under appeal that are the subject of that line of argument. That line of argument must therefore be rejected as inadmissible.
78 Accordingly, the first ground of appeal must be rejected as inadmissible in part and unfounded in part.
79 In the first part of the third ground of appeal, the appellant, supported by the shareholder, argues that the General Court misinterpreted and misapplied Paragraph 31(3)(2), of the FM-GwG, in that it found, in paragraph 44 of the judgment under appeal, that it was not necessary to wait for the relevant national decisions to become definitive before finding that the conditions for withdrawing an authorisation were satisfied.
80 In addition, the appellant complains that the General Court interpreted national law in an extreme fashion, in that it did not find it problematic that there were two separate decisions dealing with the same breach, namely a national decision, which had found that the breach had occurred, and a decision of the ECB imposing a penalty on it by withdrawing its authorisation. The withdrawal of the authorisation can be the result of only a single decision, which must be adopted by the FMA.
81 In addition, the appellant, supported by the shareholder, argues that the General Court, in paragraph 61 of the judgment under appeal, erred in that it misinterpreted Paragraph 70(4) of the BWG, which is expressly stipulated to be applicable by Paragraph 31(3)(2) of the FM-GwG.
82 The ECB disputes that entire line of argument.
83 As regards the complaint that, in paragraph 44 of the judgment under appeal, the General Court misinterpreted and misapplied Paragraph 31(3)(2) of the FM-GwG, the Court finds that that complaint is based on a misreading of the judgment under appeal. In that paragraph, the General Court merely responded to the appellant’s argument that the credit institution must have been held liable for a breach in a recent judicial decision which has the force of res judicata. In that context, the General Court found that, in the event that the finding and the penalty for infringement of the provisions at issue fall within the competence of an administrative authority, accepting the appellant’s argument would be tantamount to making the application of the second subparagraph of Paragraph 31(3) and Paragraph 34(2) and (3) of the FM-GwG dependent on the choice of the institution concerned whether or not to bring an action against the decisions of that authority. Thus, the complaint raised by the appellant must be rejected as unfounded.
84 As regards the complaint directed against paragraph 61 of the judgment under appeal, in so far as the General Court relied, in breach of Paragraph 70(4) of the BWG, on previous breaches and held that it was not necessary to show that a new breach had been committed whereas, under that provision, it is necessary to find a breach at every stage, it is necessary to examine whether the General Court distorted that provision of national law.
85 It is settled case-law that, in the case of an interpretation of national law by the General Court, the Court of Justice has jurisdiction, on appeal, only to determine whether that law was distorted, and the distortion must be obvious from the documents on its file (judgment of 15 September 2022, PNB Banka v ECB, C‑326/21 P, EU:C:2022:693, paragraph 71).
86 In particular, as regards the examination, in the context of an appeal, of the findings made by the General Court with regard to national law, the Court of Justice has jurisdiction to determine, first of all, whether the General Court, on the basis of the documents and other evidence submitted to it, distorted the wording of the national provisions at issue or of the national case-law relating to them, or of the academic writings concerning them; second, whether the General Court, as regards those particulars, made findings that were manifestly inconsistent with their content; and, lastly, whether the General Court, in examining all the particulars, attributed to one of them, in order to establish the content of the national law at issue, a significance which is not appropriate in the light of the other particulars, where that is manifestly apparent from the documentation in the case‑file (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 53).
87 Although the appellant and the shareholder submit that the General Court misinterpreted Paragraph 70(4) of the BWG, they do not show how that provision was distorted.
88 Accordingly, the General Court did not distort national law in holding, in paragraph 61 of the judgment under appeal, that the position asserted by the appellant to the effect that certain infringements found had been corrected and could no longer justify a withdrawal of authorisation would undermine the objective of safeguarding the European banking system since it would permit credit institutions that have committed serious breaches to continue their activities so long as the competent authorities do not demonstrate afresh that they have committed new breaches.
89 The first part of the third ground of appeal must, therefore, be rejected as unfounded.
90 By the second part of the third ground of appeal, the appellant, supported by the shareholder, criticised the General Court for erring in law in its assessment of the national decisions.
91 In that regard, the General Court allegedly found that it was necessary for a decision finding a wrongful failure that was open to judicial review to be given at national level, without, however, making reference to any such decision, which in any event does not exist in Austrian law.
92 As regards the 11 measures listed in paragraph 26 of the judgment under appeal, they cannot serve as a basis for withdrawing an authorisation, either because, as is the case for some of them, they are non-binding or are provisional and because review by the courts is impossible, or because, as is the case for others, a decision has already been given by a national administrative court which precludes a stricter measure than the measure provided for in that decision from being taken.
93 The ECB contests that line of argument.
94 The appellant complains that the General Court found that it was necessary for a decision finding a wrongful failure that was open to judicial review to be given at national level. It refers to paragraph 26 of the judgment under appeal and states that the documents listed in that paragraph were not decisions. The General Court merely referred to those documents as cited by the ECB in support of the form of order sought by it, without assessing what kind of documents they were. In so doing, the appellant has failed to identify the error of law allegedly made by the General Court in that regard.
95 Consequently, the second part of the third ground of appeal must be rejected as inadmissible.
96 By the third part of the third ground of appeal, the appellant complains, in essence, that, in paragraph 46 of the judgment under appeal, the General Court inferred from the case-law relating to acts of bodies of the European Union that decisions which are not challenged by those to whom they are addressed within the prescribed period become definitive as regards those addressees and for having held, in paragraph 47 of that judgment, that that case-law applies, by analogy, to decisions of national administrative authorities.
97 The ECB contends that that part should be rejected.
98 The Court notes that, in paragraph 46 of the judgment under appeal, the General Court recalled its case-law according to which the guilt of a person accused of an infringement can be regarded as established definitively where the decision finding that infringement has become definitive. As the Advocate General observed in point 100 of her Opinion, the appellant does not explain how that principle is contrary to the applicable Austrian law.
99 The third part of the third ground of appeal must, therefore, be rejected as unfounded.
100 By the fourth part of the third ground of appeal, the appellant submits that the General Court erred, in paragraphs 149 and 150 of the judgment under appeal, by attributing to the Austrian administrative decisions a number of effects for which neither Austrian law nor EU law provide. The appellant refers to the following alleged effects, namely that the failures referred to in the statement of reasons for the decisions must be regarded as having been definitively established; that the considerations set out in the statement of reasons definitively establish that the alleged failures are also sufficiently serious to justify subsequent withdrawal of authorisation, notwithstanding the fact that, on the contrary, they apply, at most, a less strict legal effect; that the relevance of the alleged failures for the purposes of a subsequent withdrawal of authorisation is definitively established ex ante; and that the bringing of evidence to the contrary, intended to demonstrate that the failures did not occur, is precluded.
101 The ECB contests that line of argument.
102 At the outset, it must be noted that the fourth part of the third ground of appeal, which is expressly directed against only paragraphs 149 and 150 of the judgment under appeal, is not supported by any detailed line of argument that relates to all the evidence relied on in the context of that part.
103 In so far as the appellant refers to paragraphs 149 and 150 of the judgment under appeal and claims that the General Court erred in law in attributing to national decisions the effect of precluding evidence to the contrary, the Court finds, as the ECB submits, that such a complaint is based on a distortion of the judgment under appeal.
104 In those same paragraphs, the General Court found, in its assessment of the evidence, that internal audit reports of a bank cannot constitute evidence to the contrary that is sufficient to call into question the findings made in national administrative decisions which have become definitive.
105 Additionally, to that extent, the appellant has neither argued nor established that, when the General Court assessed the evidence, it distorted that evidence.
106 Consequently, the fourth part of the third ground of appeal must be rejected as unfounded.
107 By the fifth part of the third ground of appeal, the appellant complains that the General Court failed to take into account either the need for specific breaches coming within Paragraph 31(3)(2) of the FM-GwG to have occurred or the need for those breaches to be wrongful. According to the appellant, mere findings that there were deficiencies and the fact that requests to remedy them had been made do not make it possible to determine whether those deficiencies were preceded by wrongful failures.
108 Furthermore, the appellant submits that it was indeed requested to remedy the situation, failing which fines would be imposed, but that those fines were not imposed. That fact shows that, in the light of the procedures conducted at national level, there was no need to apply other penalties, such as a withdrawal of authorisation.
109 The ECB disputes that line of argument.
110 Clearly, in the context of the fifth part of the third ground of appeal, the complaints put forward by the appellant do not make it possible to identify the grounds of the judgment under appeal which it is contesting. It follows that, in the light of the case-law cited in paragraph 61 of the present judgment, that part must be rejected as inadmissible.
111 By the sixth part of the third ground of appeal, the appellant, supported by the shareholder, complains that the General Court failed to take into account decisions assessing the situation as a whole. In particular, the General Court should have taken into consideration all the administrative and judicial decisions at national level and assessed their content. Those decisions include, in particular, judgments by which the Bundesverwaltungsgericht (Federal Administrative Court, Austria) repeatedly criticised the FMA’s attempt to replace part of the appellant’s management. The finding by that court that such attempts were unlawful means that a stricter measure - in the present case a withdrawal of authorisation - justified on the same basis, is also unlawful. The decisions referred to by the General Court, on the other hand, deal with very specific and historic topics.
112 The ECB contends that that part is inadmissible.
113 The Court notes at the outset that the appellant does not indicate the paragraphs in the grounds of the judgment under appeal which it intends to challenge by its complaints. Similarly, the line of argument of the appellant and of the shareholder does not make it possible to identify with precision what error of law they are alleging against the General Court.
114 Moreover, in so far as, by that part, the appellant and the shareholder request that the Court of Justice find that the General Court did not recognise the significance which they attribute to certain facts, they are in reality asking the Court of Justice to carry out a new assessment of those facts at the appeal stage without alleging a distortion of the evidence. However, the Court of Justice does not have jurisdiction to establish the facts or examine evidence, except where the appellant argues that the General Court distorted the facts and that such distortion is obvious from the documents in the Court’s file (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraphs 63 and 64). In addition, the party alleging distortion must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that party’s view, led to such distortion (see, to that effect, judgment of 10 November 2022, Commission v Valencia Club de Fútbol, C‑211/20 P, EU:C:2022:862, paragraph 55).
115 In those circumstances, the sixth part of the third ground of appeal must be rejected as inadmissible in its entirety.
116 By the seventh part of the third ground of appeal, the appellant submits, first of all, that the General Court failed to have regard to the fact that Article 67(1)(o) of the CRD IV Directive presupposes that there have been serious breaches. Paragraph 31(3)(2) of the FM-GwG should also be interpreted in that way. However, there has been no breach of that kind.
117 Next, the appellant submits that the General Court disregarded the case-law which it itself cited in paragraph 49 of the judgment under appeal, namely the judgment of the Court of Justice of 16 February 2012, Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 81), when it held that, as regards banks’ compliance with anti-money laundering legislation, stricter requirements should be applied than those applied to gaming operators. The General Court’s assessment amounts to finding that the organisation of games of chance is more significant than the management of a bank.
118 Lastly, the appellant submits that there is no reason to interpret Austrian substantive law in the light of EU law.
119 The ECB contends that that part is inadmissible in part and unfounded in part.
120 As regards, first of all, the appellant’s complaint alleging infringement by the General Court of Article 67(1)(o) of the CRD IV Directive, the Court of Justice finds that the appellant fails both to identify the relevant passages of the judgment under appeal and to state reasons for its complaint. In any event, the appellant asks the Court of Justice to carry out a new assessment of the facts, whereas, except where an appellant relies on a distortion of the facts, which is not the case here, the arguments which it raises relating to the facts must be regarded as inadmissible (see, to that effect, judgment of 2 February 2023, Spain and Others v Commission, C‑649/20 P, C‑658/20 P and C‑662/20 P, EU:C:2023:60, paragraph 98).
121 Next, as regards the appellant’s line of argument that the General Court’s assessment in paragraph 49 of the judgment under appeal amounts to finding that the organisation of games of chance is more significant than the management of a bank, that line of argument is too imprecise to enable the Court of Justice to understand the nature of the error in law that the appellant is alleging to have been made by the General Court in that regard. It follows that that line of argument must also be rejected as inadmissible.
122 Lastly, in so far as the appellant submits that there is no reason to interpret Austrian substantive law in the light of EU law, once again, the appellant’s line of argument does not make it possible to understand the nature of the error in law allegedly made by the General Court.
123 Consequently, the seventh part of the third ground of appeal must be rejected as inadmissible.
124 By the eighth part of the third ground of appeal, the appellant, supported by the shareholder, refers to paragraph 158 of the judgment under appeal and criticises the General Court for having failed to examine to a sufficient degree the plea alleging a failure to take into account the applicability of Paragraph 70(4) of the BWG.
125 The General Court failed to have regard to the fact that, even in the event of a sufficiently serious failure, it is necessary for the conditions laid down by that national provision to be satisfied, including the obligation that a finding be made specifically on the date of the decision and at each of the three required stages. In that regard, the appellant states that that provision expressly requires, at the first stage, that an order be issued requiring the situation to be remedied, failing which a fine will be imposed (a measure which, in the present case, was not adopted), at the second stage, that an order be issued requiring the management to be replaced and, at the third stage, if the other measures were bound to fail, that an order be issued withdrawing the authorisation.
126 The General Court adopted, in paragraphs 61 and 62 of the judgment under appeal, an approach contrary to that resulting from Paragraph 70(4) of the BWG, since it relied, for the purposes of the statement of reasons for the decision at issue, on previous breaches which did not call for the authorisation to be withdrawn.
127 In addition, the appellant, supported by the shareholder, submits that the General Court granted itself the right to undertake, by way of legal construct, a ‘fundamental overhaul of Austrian law’, which is contrary to the rule of law. The Basic SSM Regulation does not grant the General Court the power to overhaul national legislation on prudential supervision without infringing Article 127(6) TFEU.
128 The ECB contends that that part of the third ground of appeal is inadmissible and, in any event, unfounded.
129 As the Advocate General observed in points 122 to 125 of her Opinion, in the context of the eighth part of the third ground of appeal, the Court is requested to reassess the findings of fact as regards, in particular, the assessment of the measures taken by the appellant to correct the failures and various decisions adopted by the FMA in the context of its supervisory task.
130 Therefore, whereas no distortion of the facts is alleged, those arguments are inadmissible.
131 As regards the other arguments raised by the appellant in the context of the eighth part of the third ground of appeal, the appellant does not indicate the relevant paragraphs of the judgment under appeal or specify the nature of the error allegedly made by the General Court, aside from a general reference to considerations of legal policy and to the rule of law.
132 Consequently, the eighth part of the third ground of appeal must be rejected as inadmissible.
133 The appellant complains that, in paragraph 105 et seq. of the judgment under appeal, the General Court erred in law in its assessment of the relationship between Paragraph 31(3)(2) of the FM-GwG and Paragraph 70(4) of the BWG. Specifically, the appellant argues that the ECB based its decision on Paragraph 70(4) of the BWG, whereas the power to impose penalties in respect of activities contrary to the anti-money laundering and counter-terrorist financing rules is governed only by the FM-GwG, to which Paragraph 70(4) of the BWG does not refer.
134 In that regard, the appellant submits that the fact that the BWG touches upon issues covered by anti-money laundering legislation is irrelevant; it argues that the General Court disregarded that irrelevance in paragraph 106 of the judgment under appeal. Furthermore, the reference, in paragraph 106, to Paragraph 39(2) and (2b) of the BWG is irrelevant, since that provision in no way alters the fact that Paragraph 70(4) of the BWG does not mention the FM-GwG.
135 The appellant adds that, in the judgment under appeal, the General Court interpreted the decision at issue as being based on alleged past beaches for the purpose of Paragraph 31(3)(2) of the FM-GwG and not on current breaches of the conditions for the grant of an authorisation. It states that it identifies that error only for the sake of completeness.
136 The ECB contends that that part must be rejected as unfounded.
137 As regards the appellant’s line of argument relating to the allegedly incorrect legal basis of the decision at issue, the Court notes that, in paragraphs 105 to 107 of the judgment under appeal, the General Court held, in essence, that it could not be found that the only provisions providing for the withdrawal of authorisation for breaches of anti-money laundering and counter-terrorist financing legislation under Austrian law are the combined provisions of Paragraph 31(3)(2) and Paragraph 34(2) and (3) of the FM-GwG. In that regard, it noted that Paragraph 39(2) and (2b) of the BWG expressly refers to the risk of money laundering and terrorist financing and that it is apparent from Paragraph 70(4) of that law that infringements of the BWG may justify authorisation being withdrawn.
138 In paragraph 108 of the judgment under appeal, which is not challenged in the present appeal, the General Court recalled that, even assuming that the ECB had relied on the wrong legal basis, the annulment of an administrative decision because the wrong legal basis was used is not justified where that error had no decisive effect on the assessment made by the administration.
139 Furthermore, as is apparent from paragraph 109 of the judgment under appeal, which is also not the subject of the present appeal, the appellant did not claim, before the General Court, that the choice of a different legal basis could have influenced the ECB’s assessment.
140 Paragraphs 108 and 109 of the judgment under appeal are thus sufficient to justify the conclusion reached by the General Court, even if the ECB had relied on the incorrect legal basis.
141 Accordingly, the appellant’s complaints relating to paragraphs 105 to 107 of the judgment under appeal must be rejected as ineffective, in so far as, even if they were upheld by the Court of Justice, they would not lead to that judgment being set aside.
142 In those circumstances, the ninth part of the third ground of appeal must be rejected as ineffective.
143 It follows that the third ground of appeal must be rejected in its entirety as inadmissible in part and unfounded in part.
144 By the first part of the fourth ground of appeal, the appellant complains that the General Court erred in law, in paragraph 132 et seq. of the judgment under appeal, in that it held that infringements that occurred three or five years prior to the adoption of the decision at issue which had been remedied in the meantime were sufficient to justify that decision.
145 The General Court should not have taken into account certain infringements, such as those concerning the obligations relating to accounting, auditing and the filing of accounts, governance, risk management, the internal and contractual documentation system and the management of credit files.
146 The ECB contends that that part is inadmissible and, in any event, unfounded.
147 In accordance with the Court’s settled case-law, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. It follows that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 25 April 2024, NS v Parliament, C‑218/23 P, EU:C:2024:358, paragraph 58 and the case-law cited).
148 In the present case, in so far as the appellant challenges factual assessments made by the General Court and seeks a new assessment of the facts by the Court of Justice, without, however, alleging that those facts have been distorted by the General Court, that part must be rejected as inadmissible.
149 By the second part of the fourth ground of appeal, the appellant complains that, in paragraphs 138 and 139 of the judgment under appeal, the General Court erred in law by finding that it is not necessary for the infringements to be serious in order to justify withdrawing an authorisation. Such a finding disregards the nature of such a measure and the principle of proportionality.
150 The ECB disputes the appellant’s arguments.
151 Contrary to what the appellant claims, the Court notes that Article 67(1)(d) of the CRD IV Directive, to which Article 18(f) of that directive, relating to a withdrawal of authorisation, refers and to which reference is made in paragraphs 138 and 139 of the judgment under appeal, provides that Article 67 applies in at least one of the circumstances set out therein, such as the situation in which an institution has failed to put in place the governance arrangements required by the competent authorities in accordance with the national provisions transposing Article 74 of that directive. It follows that Article 67 does not specifically refer to ‘serious’ breaches being committed.
152 Consequently, the General Court cannot be criticised for having held that the ECB did not make a manifest error of assessment by failing to establish that the breaches it found the appellant had committed of provisions of the BWG transposing Article 74 of that directive were serious, flagrant or systemic.
153 Moreover, the General Court’s findings in paragraphs 138 and 139 of the judgment under appeal do not disregard the nature of a measure withdrawing an authorisation or the principle of proportionality. Neither Article 67(1)(d) of the CRD IV Directive, to which Article 18(f) of that directive refers, nor the principle of proportionality precludes a high number of repeated breaches of the rules of regular corporate governance from, in principle, leading to the withdrawal of authorisation being regarded as an appropriate measure.
154 Consequently, the second part of the fourth ground of appeal must be rejected as unfounded.
155 By the third part of the fourth ground of appeal, the appellant claims that, by refusing to examine the argument alleging that the internal audit of the appellant was sufficient on the ground that the FMA had, in the past, found that that was not the case and that the FMA’s decisions had become definitive, the General Court, in paragraph 140 et seq. of the judgment under appeal, infringed the case-law resulting from the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023).
156 The ECB disputes the appellant’s line of argument.
157 In paragraph 59 of the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), the Court held that Article 263 TFEU must be interpreted as precluding national courts from reviewing the legality of decisions to initiate procedures, preparatory acts or non-binding proposals adopted by national competent authorities in the procedure provided for in Articles 22 and 23 of the CRD IV Directive, in Article 4(1)(c) and Article 15 of the Basic SSM Regulation and in Articles 85 to 87 of the SSM Framework Regulation.
158 Since the decisions by which the FMA found that the appellant’s internal audit mechanism was inappropriate do not constitute such decisions initiating procedures or such preparatory acts for the purpose of withdrawing an authorisation, and since the General Court held, in paragraphs 145 and 146 of the judgment under appeal, that the FMA’s decision concerning the appellant’s failure to put in place the requisite governance arrangements was definitive, the case-law arising from the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), is irrelevant.
159 Consequently, the third part of the fourth ground of appeal must be rejected as unfounded.
160 By the fourth part of the fourth ground of appeal, the appellant submits that the General Court erred in its assessment of the documents listed in paragraph 122 of the judgment under appeal as regards the legal nature of the measures listed therein, whether they were open to challenge and whether they were definitive, and did not analyse the three levels of effect laid down in Paragraph 70(4) of the BWG. It thus made the same errors as those affecting paragraph 26 of the judgment under appeal as regards the assessment of the measures referred to therein.
161 The shareholder also submits that none of the measures listed in paragraph 122 of the judgment under appeal were such as to justify a withdrawal of authorisation.
162 The ECB contends that that line of argument cannot succeed.
163 The Court notes at the outset that, in paragraph 122 of the judgment under appeal, the General Court merely listed the various formal orders addressed by the FMA to the appellant, on which the ECB relied in order to find that the national provisions transposing Article 74 of the CRD IV Directive had been infringed, without making any assessment whatsoever in that regard. The same is true of the documents referred to in paragraph 26 of that judgment.
164 Consequently, the fourth part of the fourth ground of appeal must be rejected as unfounded.
165 Accordingly, the fourth ground of appeal must be rejected in its entirety as inadmissible in part and unfounded in part.
166 By the first part of the fifth ground of appeal, the appellant, supported by the shareholder, refers to paragraph 163 et seq. of the judgment under appeal and complains that the General Court failed to examine its plea alleging an infringement of the principle of proportionality and failed to examine Paragraph 70(4) of the BWG. According to the appellant, a withdrawal of authorisation resulted in a less effective outcome in terms of preventing money laundering and in terms of monitoring in that regard.
167 The shareholder adds that the fifth ground of appeal, alleging that the General Court’s findings on the principle of proportionality are incorrect, is closely linked to the insufficient treatment of Paragraph 70(4) of the BWG, which gives concrete expression to that principle. In that regard, it was necessary for it to take account of the fact that the attempts to order a less strict measure had been declared unlawful by the national courts.
168 The ECB contends that that part should be rejected.
169 The Court notes that the arguments relied on in the context of the first part of the fifth ground of appeal have already been raised in the context of the eighth part of the third ground of appeal. Thus, and for the same reasons as those set out in paragraphs 129 to 131 of the present judgment, the first part of the fifth ground of appeal must be rejected as inadmissible.
170 By the second part of the fifth ground of appeal, the appellant claims that, by adopting the decision at issue, the ECB rendered the FM-GwG inapplicable, whereas that legislation would have remained binding on the appellant if it had instead chosen to proceed with voluntary liquidation.
171 The ECB contends that the second part is inadmissible.
172 Indeed, the appellant repeats the plea relied on in support of the action at first instance, without identifying an error of law allegedly committed by the General Court in its assessment.
173 Moreover, the appellant does not challenge paragraphs 189 to 192 of the judgment under appeal, by which the General Court found that the solution of voluntary liquidation would not have constituted a measure that was more appropriate than a withdrawal of authorisation.
174 In those circumstances, the second part of the fifth ground of appeal must be rejected as inadmissible.
175 It follows that the fifth ground of appeal must be rejected in its entirety as inadmissible.
176 By the sixth ground of appeal, the appellant complains that the General Court incorrectly rejected the arguments that the appellant put forward in its fourth plea in its action at first instance, by which it alleged an infringement of its rights of defence.
177 It submits, in that regard, that the General Court made errors, in particular in relation to the infringement of the right of access to the file and to the failure to meet the obligation to determine the relevant circumstances, as relied on by the appellant, and incorrectly rejected the complaints raised in that context on the ground that the appellant had had the opportunity to bring legal proceedings, at national level, challenging the decision finding failures and that it had not made use of that option.
178 The shareholder adds that this ground of appeal is closely linked to other errors made by the General Court.
179 The ECB contends that that ground should be rejected.
180 It is immediately clear to the Court that the line of argument put forward by the appellant is based on a misreading of the judgment under appeal.
181 The General Court found, in paragraphs 245 to 248 of the judgment under appeal, that the ECB was not under an obligation to disclose the confidential part of the file to the appellant. The General Court justified that, in paragraph 241 of that judgment, by referring to Article 32(1) and (5) of the SSM Framework Regulation, according to which confidential information, which can include correspondence between the ECB and national competent authorities, is not covered by the right of access to one’s file.
182 In addition, the General Court, in paragraphs 244 and 245 of the judgment under appeal, rejected the complaints put forward on the ground that the withdrawal of authorisation was founded on decisions by the FMA and judgments of the Austrian courts determining that there were infringements or that breaches had been committed and that the appellant was the addressee of those administrative decisions or a party to the court proceedings concerned, with the result that it could not claim to have been prevented from determining the material relevance of the documents or from identifying the allegations raised by the ECB and the FMA which had their basis in those decisions or judgments.
183 As regards the determination of relevant circumstances by the ECB, the General Court analysed that obligation extensively in paragraphs 251 to 273 of the judgment under appeal, which are not challenged by the appellant in the present appeal.
184 Lastly, since the shareholder’s line of argument is so imprecise, it does not make it possible to identify the error of law complained of.
185 It follows that the sixth ground of appeal must be rejected as unfounded.
186 By the seventh ground of appeal, the appellant, supported by the shareholder, relies on procedural irregularities allegedly attributable to the General Court.
187 It maintains, first of all, that the General Court should, at the outset, have informed it of the position on which it based the judgment under appeal, namely that the statements of reasons given for the earlier administrative and judicial decisions were also binding as regards the withdrawal of authorisation.
188 Next, the appellant and the shareholder claim that the General Court never indicated that it had changed the approach expressed in the context of the measure of organisation of procedure of 27 April 2021, an approach according to which a withdrawal of authorisation under anti-money laundering legislation required serious breaches to have occurred within the meaning of Article 3(4)(f) of Directive 2015/849.
189 In addition, the appellant submits that the request for a measure of organisation of procedure which it made on 8 April 2021 was rejected because the General Court had concluded at that time that, in the absence of serious infringements, the conditions for withdrawing the authorisation were not satisfied. The position adopted by the General Court ultimately amounts to allowing the parties freely to submit additional pleadings and documents.
190 Lastly, the appellant claims that the General Court did not examine the facts in depth even though it should have referred to specific failures that were sufficiently serious, and adds that the fact that it did not do so is reflected, moreover, in a failure to state reasons in the judgment under appeal.
191 The ECB contends that the seventh ground of appeal must be rejected.
192 As regards, first of all, the appellant’s arguments alleging that it should have been given the opportunity to take a position on the approach taken by the General Court, according to which the reasons for the administrative and judicial decisions were also binding as regards the withdrawal of authorisation, the Court of Justice finds that the appellant neither identifies nor makes it possible to identify the paragraphs of the judgment under appeal to which those arguments relate, with the result that its complaint - the scope of which, moreover, is difficult to grasp - must be rejected as inadmissible.
193 Nor can the Court accept the line of argument put forward by the appellant, supported by the shareholder, that the General Court did not inform it that it had changed its opinion as initially expressed in the questions asked in the context of the measure of organisation of procedure of 27 April 2021, since, in those questions, the General Court did not give any opinion.
194 The appellant’s line of argument relating to the fact that its request for a measure of organisation of procedure submitted on 8 April 2021 was refused does not specify the nature of the error allegedly made by the General Court. That line of argument is therefore inadmissible.
195 Lastly, in so far as the appellant claims that the General Court failed to state its reasoning in the judgment under appeal, since it does not make it possible to determine which alleged serious breaches gave rise to the withdrawal of authorisation, that complaint is general in nature and, in particular, does not make it possible to identify the paragraphs of the judgment under appeal to which it relates.
196 In any event, in paragraph 26 of the judgment under appeal, the General Court listed in detail a number of measures and judicial decisions addressed to the appellant, on which the ECB relied in order to find that serious breaches had occurred.
197 It follows that that argument must also be rejected.
198 In those circumstances, the seventh ground of appeal must be rejected as inadmissible in part and unfounded in part.
199 Since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
200 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
201 Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
202 Since the appellant has been unsuccessful, it must be ordered, in accordance with the form of order sought by the ECB, to bear its own costs and to pay those incurred by the ECB.
203 Since none of the parties has applied for another party to bear the shareholder’s costs, the shareholder must be ordered to bear its own costs.