1 By their respective appeals, the European Central Bank (ECB) and the European Commission seek to have set aside the judgment of the General Court of the European Union of 12 October 2022, Corneli v ECB (T‑502/19, ‘the judgment under appeal’, EU:T:2022:627), by which the General Court upheld in part the action brought by Ms Francesca Corneli, by annulling ECB Decision ECB-SSM-2019-ITCAR-11 of 1 January 2019, placing Banca Carige SpA under temporary administration (‘the decision to place Banca Carige under temporary administration’) and ECB Decision ECB-SSM-2019-ITCAR-13 of 29 March 2019 extending until 30 September 2019 the duration of the placement under temporary administration (‘the extension decision’ and, together with the decision to place the bank under temporary administration, ‘the decisions at issue’).
2 For the purposes 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 ‘Single Supervisory Mechanism’ is defined in Article 2(9) thereof as meaning ‘the system of financial supervision composed by the ECB and national competent authorities of participating Member States as described in Article 6 of this Regulation’.
3 Article 4 of that regulation 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: … … 2. For credit institutions established in a non-participating Member State, which establish a branch or provide cross-border services in a participating Member State, the ECB shall carry out, within the scope of paragraph 1, the tasks for which the national competent authorities are competent in accordance with relevant Union law. 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. …’
4 Article 9(1) and (2) of that regulation provides as follows: ‘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. … 2. The ECB shall exercise the powers referred to in paragraph 1 of this Article in accordance with the acts referred to in the first subparagraph of Article 4(3). In the exercise of their respective supervisory and investigatory powers, the ECB and national competent authorities shall cooperate closely.’
5 Article 2(1)(21) of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190) defines a ‘competent authority’, for the purposes of that directive, as referring, inter alia, to the ECB ‘with regard to specific tasks conferred on it by Regulation [1024/2013]’.
6 Article 27 of Directive 2014/59, headed ‘Early intervention measures’, provides, in paragraph 1 thereof: ‘1. Where [a credit institution or investment firm] infringes or, due, inter alia, to a rapidly deteriorating financial condition, including deteriorating liquidity situation, increasing level of leverage, non-performing loans or concentration of exposures, as assessed on the basis of a set of triggers, which may include the institution’s own funds requirement plus 1,5 percentage points, is likely in the near future to infringe the requirements of [Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1)], [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)], Title II of [Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349)] or any of Articles 3 to 7, 14 to 17, and 24, 25 and 26 of [Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ 2014 L 173, p. 84)], Member States shall ensure that competent authorities have at their disposal … at least the following measures: …’
7 Article 28 of that directive, headed ‘Removal of senior management and management body’, provides: ‘Where there is a significant deterioration in the financial situation of an institution or where there are serious infringements of law, of regulations or of the statutes of the institution, or serious administrative irregularities, and other measures taken in accordance with Article 27 are not sufficient to reverse that deterioration, Member States shall ensure that competent authorities may require the removal of the senior management or management body of the institution, in its entirety or with regard to individuals. The appointment of the new senior management or management body shall be done in accordance with national and Union law and be subject to the approval or consent of the competent authority.’
8 Article 29 of that directive, headed ‘Temporary administrator’, provides, in paragraph 1 thereof: ‘Where replacement of the senior management or management body as referred to in Article 28 is deemed to be insufficient by the competent authority to remedy the situation, Member States shall ensure that competent authorities may appoint one or more temporary administrators to the institution. Competent authorities may, based on what is proportionate in the circumstances, appoint any temporary administrator either to replace the management body of the institution temporarily or to work temporarily with the management body of the institution and the competent authority shall specify its decision at the time of appointment. If the competent authority appoints a temporary administrator to work with the management body of the institution, the competent authority shall further specify at the time of such an appointment the role, duties and powers of the temporary administrator and any requirements for the management body of the institution to consult or to obtain the consent of the temporary administrator prior to taking specific decisions or actions. The competent authority shall be required to make public the appointment of any temporary administrator except where the temporary administrator does not have the power to represent the institution. Member States shall further ensure that any temporary administrator has the qualifications, ability and knowledge required to carry out his or her functions and is free of any conflict of interests.’
9 Article 69octiesdecies of decreto legislativo n. 385 - Testo unico delle leggi in materia bancaria e creditizia (Legislative Decree No 385 consolidating the laws on banking and credit) of 1 September 1993 (GURI No 230 of 30 September 1993, Ordinary Supplement No 92), in the version applicable in the present dispute (‘the Consolidated Law on Banking’), which transposes Article 28 of Directive 2014/59 into Italian law, provides, in paragraph 1 thereof: ‘The Bank of Italy may take the following measures in respect of a bank or the parent company of a banking group: …
10 Article 70 of the Consolidated Law on Banking, headed ‘Temporary administrator’, transposes Article 29 of Directive 2014/59 into Italian law and provides, in paragraph 1 thereof: ‘The Bank of Italy may order the dissolution of the bodies exercising the administration and supervision functions of banks in the event of an infringement or irregularity referred to in Article 69octiesdecies(1)(b), or if serious financial losses are expected, or where dissolution is requested by reasoned application from the administrative bodies or by an extraordinary meeting.’
11 In paragraphs 2 to 19 of the judgment under appeal, the General Court set out the background to the dispute and the facts subsequent to the bringing of the action before it. For the purposes of the present joined cases, they may be summarised as follows.
12 Banca Carige was a credit institution established in Italy which was listed on the stock exchange and was subject to direct prudential supervision by the ECB since 2014. It had accumulated losses of more than EUR 1.6 billion between December 2014 and 1 January 2019. Ms Corneli was a minority shareholder in Banca Carige. When the action was brought before the General Court, she held 200 000 ordinary shares, corresponding to 0.000361% of the bank’s share capital.
13 Since Banca Carige did not comply with the minimum capital ratio requirements on 1 January 2018, it made several attempts in 2018 to remedy that situation. However, those attempts were unsuccessful. Following opposition by shareholders holding 70% of Banca Carige’s share capital at an extraordinary general meeting of Banca Carige held on 22 December 2018 to an increase in capital by exchange of subordinated bonds for newly issued shares, seven members of Banca Carige’s board of directors, including the chairman, the vice-chair and the managing director, resigned, with immediate effect, on 23 December 2018 and 2 January 2019. Those resignations resulted in the removal of the board of directors, in accordance with Banca Carige’s statutes and the relevant provision of Italian law. In accordance with those statutes, the four members of the board of directors who had not resigned remained in office to ensure the day-to-day management of Banca Carige.
14 On 1 January 2019, the ECB adopted the decision to place Banca Carige under temporary administration, the consequences of which were, first, the dissolution of Banca Carige’s board of directors and the replacement of the former members by three temporary directors, second, the dissolution of Banca Carige’s supervisory committee and the replacement of the former members of that committee by three other persons and, third, the giving to the new bodies of the mandate to take the necessary steps to ensure that Banca Carige once again complied with the asset requirements on a sustainable basis.
15 On 29 March 2019, the ECB adopted the extension decision.
16 By decision of 30 September 2019, the ECB extended Banca Carige’s temporary administration until 31 December 2019. By decision of 20 December 2019, it extended it again, until 31 January 2020, in order to enable the completion of the operation to strengthen Banca Carige’s capital base.
17 By application lodged at the Registry of the General Court on 12 July 2019, Ms Corneli brought an action for annulment of the decision to place Banca Carige under temporary administration and of ‘any consequent or subsequent act’, including, inter alia, the extension decision and the subsequent decisions to extend the placing of Banca Carige under temporary administration.
18 By separate document lodged at the Court Registry on 2 October 2019, the ECB raised a plea of inadmissibility in respect of that action; a decision on that plea was reserved for the final judgment by order of the General Court of 29 April 2020.
19 By decision of 24 June 2020, the European Commission was granted leave to intervene in support of the form of order sought by the ECB.
20 As regards the admissibility of the action, the General Court first examined, in paragraphs 22 to 28 of the judgment under appeal, whether the application for annulment of the various ECB decisions referred to in paragraph 17 above met in all respects the formal requirements laid down in Articles 76 and 86 of the Rules of Procedure of the General Court and whether the acts whose annulment was sought were existing and adversely affected Ms Corneli. After considering that point, it held, in paragraph 29 of the judgment under appeal, that Ms Corneli’s action was admissible in so far as it was directed against the decisions at issue, but was not admissible in respect of ‘any consequent or subsequent act’, including the decisions adopted by the ECB after that action was brought subsequently extending the placing of Banca Carige under temporary administration.
21 Second, ruling on the plea of inadmissibility raised by the ECB, supported by the Commission, alleging that Ms Corneli lacked standing to bring proceedings, the General Court, in paragraphs 33 to 54 of the judgment under appeal, examined, in the first place, whether Ms Corneli was directly concerned by the decisions at issue.
22 As is apparent from paragraphs 34 and 35 of that judgment, the General Court held that the legal relationship between Banca Carige and its shareholders, including Ms Corneli, had been altered, without the intervention of any intermediate measure, by the decisions at issue, which themselves altered the rights available to Ms Corneli to participate, as a shareholder, in the management of Banca Carige in accordance with the applicable rules. In particular, the General Court held that those decisions infringed Ms Corneli’s rights to elect, as a shareholder, the management and supervisory bodies of Banca Carige, to convene a general meeting of shareholders and to set the agenda and altered the conditions under which the management and supervisory bodies could be held liable by shareholders, such as Ms Corneli.
23 After rejecting the arguments of the ECB and the Commission to the contrary, the General Court held, in paragraph 54 of the judgment under appeal, that the decisions at issue were of direct concern to Ms Corneli.
24 In the second place, in paragraphs 55 to 76 of the judgment under appeal, the General Court examined whether Ms Corneli was individually concerned by the decisions at issue. As is clear from paragraphs 58 to 64 of that judgment, the General Court held that the criteria established by the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17) were satisfied vis-à-vis Ms Corneli, since, first, she was identifiable, as a shareholder of Banca Carige, at the time when the decisions at issue were adopted, because, on the date on which they were each adopted, the list of shareholders who would be affected by those decisions was determined, in particular in the case of the decision to place Banca Carige under temporary administration which had been adopted on a day when credit institutions were closed, which meant that the shares could not be traded on that day. Second, the General Court held that the shareholders of Banca Carige, including Ms Corneli, were affected by the adoption of the decisions at issue, in respect of an attribute which characterised them individually, namely, the attribute of being a holder of shares in Banca Carige who would find himself or herself prevented, by the effect of those decisions, from exercising certain rights attaching to those shares.
25 The General Court held, inter alia, in paragraph 63 of the judgment under appeal, that Ms Corneli was one of the shareholders who had voted against the proposal that had been submitted to the general meeting of 22 December 2018; that vote, even though it expressed only a request for postponement, had led to the resignation of members of the board of directors, and subsequently the dissolution of that board, Banca Carige then being placed in the situation which, in the context which it was facing, had given rise, as indicated in the decision to place Banca Carige under temporary administration, to the intervention of the ECB, with suspension of the functions of the general meeting and thus of the possibility for the shareholders to influence, by means of their vote, the strategy to be followed by Banca Carige.
26 After rejecting the objections of the ECB and the Commission, the General Court held, in paragraph 76 of the judgment under appeal, that Ms Corneli was individually concerned by the decisions at issue and, therefore, that she satisfied the inherent requirements to be met in order to have standing to bring proceedings.
27 In the third place, in paragraphs 77 to 82 of the judgment under appeal, the General Court rejected the plea of inadmissibility raised by the ECB, alleging that Ms Corneli had no legal interest in the action. In that regard, the General Court recalled, in paragraph 81 of that judgment, that, in order to justify her action, Ms Corneli highlighted the impact of the decisions at issue on the rights she held, in her capacity as a shareholder of Banca Carige, in particular the right to convene a general meeting in order to propose the bringing of an action or the right to add a point to that effect to the agenda of such a meeting. The General Court inferred from this, in paragraph 82 of the judgment under appeal, that, if the decisions at issue were annulled, the effect on the situation of the shareholders would not be the same as the effect produced by annulment of those decisions on the situation of Banca Carige and that, consequently, acting on the basis of the effect of those decisions on her own rights, Ms Corneli could demonstrate that she has a separate interest in seeking annulment of those decisions, which was not the same as that of Banca Carige.
28 Consequently, the General Court held that the action was admissible and examined it on its merits. In support of her action at first instance, Ms Corneli put forward seven pleas in law, alleging, first, infringement of the rules on proportionality, second, infringement of the duty to state reasons and of the right to be heard, third, the appointment, as temporary administrators, of persons who had previously performed important duties in the management and administration of Banca Carige, fourth, an error of law in the determination of the legal basis used to adopt the decisions at issue, fifth, that the ECB had attempted to resolve governance problems by appointing persons who had created them, sixth, infringement of both the rules relating to the rights of the shareholder and of the fundamental principles relating to the protection of property and savings, the freedom of private economic initiative and the self-determination of the citizen in his or her personal choices and, seventh, inadequacy of the temporary administration for resolving the problem identified.
29 The General Court decided to examine, in the first place, the fourth plea of the action at first instance, alleging an error of law in the determination of the legal basis used to adopt the decisions at issue. As is apparent from paragraph 86 of the judgment under appeal, Ms Corneli submitted, by that plea, that the ECB had erred in law in basing the decisions at issue on Article 70(1) of the Consolidated Law on Banking, whereas that provision did not refer to the situation relied on to justify the temporary placement of Banca Carige under administration, namely a ‘significant deterioration’ of the situation of Banca Carige.
30 In that regard, in paragraph 95 of the judgment under appeal, the General Court inferred from a comparative analysis of the provisions of Article 69octiesdecies(1)(b) and Article 70 of the Consolidated Law on Banking that Article 70 did not provide for the dissolution of the administrative or supervisory bodies of banks and the establishment of temporary administration in the event of a particularly significant deterioration in the situation of the bank or banking group concerned.
31 The General Court thus held, in paragraph 100 of that judgment, that the ECB had infringed Article 70 of the Consolidated Law on Banking by relying, even though that condition was not provided for in that provision, on the significant deterioration in the situation of Banca Carige in order to dissolve the bank’s management and supervisory bodies, set up a temporary administration and maintain that administration during the period covered by the extension decision.
32 For the reasons set out in paragraphs 102 to 108 of the judgment under appeal, the General Court rejected the argument put forward by the ECB and the Commission that, since placement under temporary administration was provided for in Article 29 of Directive 2014/59, Article 70 of the Consolidated Law on Banking had to be read in the light of that provision, which it was designed to transpose into Italian law. In that regard, as is apparent from paragraphs 106 and 107 of the judgment under appeal, the General Court recalled that the obligation to interpret national law in conformity with EU law could not serve as the basis for an interpretation which runs counter to the wording used in the national provision transposing a directive. According to the General Court, that would be the result if that method of interpretation were used in the case before it.
33 In addition, in paragraphs 111 to 113 of the judgment under appeal, the General Court rejected the argument, put forward at the hearing before it by the ECB and by the Commission, that, when the ECB acts as the competent authority under banking legislation, it is required to apply, in addition to national law, all the rules of EU law, including the rule set out in Directive 2014/59, which provides for placement under temporary administration in the event of a significant deterioration in the situation of the institution concerned.
34 In that regard, the General Court held, in paragraph 112 of the judgment under appeal, that it followed from Article 4(3) of Regulation No 1024/2013 that, where the relevant EU law for the purpose of carrying out the tasks conferred on the ECB includes directives, it is the national law transposing those directives that must be applied. According to the General Court, that provision cannot be read as having two distinct sources of obligations, namely EU law in its entirety, including directives, to which the national law transposing them should be added. The General Court found that such an interpretation would indeed imply that the scope of the national provisions differs from that of the directives that they are intended to transpose into national law and that, in such a case, the two types of standards are binding on the ECB as separate legislative sources, which would run counter to Article 288 TFEU. The General Court also recalled the case-law of the Court of Justice according to which a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual.
35 In those circumstances, the General Court held, in paragraph 113 of the judgment under appeal, that the error made by the ECB in the application of Article 70 of the Consolidated Law on Banking cannot be remedied by a free interpretation of the texts which would allow the conditions for the application of provisions conceived separately in Directive 2014/59 and national law to be reconstructed. The General Court therefore upheld the plea in law alleging an error of law in the determination of the legal basis used to adopt the decisions at issue and annulled those decisions, without examining the other pleas raised by Ms Corneli.
36 By its appeal in Case C‑777/22 P, the ECB claims that the Court should: - set aside the judgment under appeal in so far as it annuls the decisions at issue; - declare the action at first instance inadmissible; - in the alternative, declare that the decisions at issue are lawful and, if necessary, refer the case back to the General Court for a decision on the pleas not examined in the judgment under appeal; - order Ms Corneli to pay the costs both at first instance and on appeal.
37 By its appeal in Case C‑789/22 P, the Commission claims that the Court should: - annul the judgment under appeal; - dismiss the action at first instance as inadmissible or, at the very least, unfounded; - order Ms Corneli to pay the costs; and - in the alternative, following annulment, refer the case back to the General Court.
38 In her response, Ms Corneli contends that the Court should: - declare the appeals inadmissible and, in any event, dismiss them as unfounded; - in the alternative, in the event that the appeals are upheld, uphold her action at first instance or, in the further alternative, refer the case back to the General Court.
39 In its response in Case C‑777/22 P, the Commission states that it fully supports the form of order sought by the ECB and claims that it should be granted.
40 By decision of the President of the Court of Justice of 8 February 2023, Cases C‑777/22 P and C‑789/22 P were joined for the purposes of the written and oral procedure and the judgment.
41 By decision of the President of the Court of Justice of 17 April 2023, the Italian Republic was granted leave, at its request, to intervene in support of the form of order sought by the ECB and the Commission in Cases C‑777/22 P and C‑789/22 P.
42 In its statement in intervention, the Italian Republic asks the Court of Justice to uphold the appeals brought by the ECB and the Commission and, consequently, to declare inadmissible or, in the alternative, to dismiss the action for annulment brought by Ms Corneli on the merits.
43 In accordance with the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union, the ECB and the Italian Republic requested, on 3 and 6 November 2023 respectively, that the present joined cases be referred to the Grand Chamber, of which the Court of Justice took formal note on 7 May 2024.
44 In support of its appeal in Case C‑777/22 P, the ECB relies on two grounds of appeal alleging, first, distortion of the facts by the General Court as regards the alleged rights on which Ms Corneli could rely as a shareholder of Banca Carige and, second, an error of law in the interpretation of Article 70 of the Consolidated Law on Banking.
45 The Commission, on the other hand, relies, in support of its appeal in Case C‑789/22 P, on five grounds of appeal alleging, first, infringement of Article 263 TFEU, in so far as the General Court held that the decisions at issue were of direct and individual concern to Ms Corneli, second, infringement of Article 84 of the Rules of Procedure of the General Court and of the prohibition on raising of its own motion a plea for annulment based on the substantive lawfulness of a contested measure, third, infringement of Article 4(3) of Regulation No 1024/2013 and of Article 70(1) of the Consolidated Law on Banking, fourth, infringement of the third paragraph of Article 288 TFEU, in so far as the General Court held that Article 70(1) of the Consolidated Law on Banking could not be interpreted in a manner consistent with Article 29 of Directive 2014/59, and, fifth, infringement of both the second and third paragraphs of Article 288 TFEU and of Article 4(3) of Regulation No 1024/2013, in so far as the General Court held that the ECB could not rely on provisions of directives having direct effect and had to apply national legislation contrary to directives.
46 In its statement in intervention, the Italian Republic states that it supports all the grounds of appeal put forward by the ECB and the Commission, with the exception of the Commission’s fifth ground of appeal, in respect of which it does not take a position.
47 By their first grounds of appeal, the ECB and the Commission, supported by the Italian Republic, each dispute the grounds of the judgment under appeal on the basis of which the General Court held that Ms Corneli had standing to bring proceedings, on the ground that the decisions at issue were of direct and individual concern to her, and that she also had the requisite legal interest in the action, with the result that her action was admissible. The ECB divides its ground into four parts, whereas the Commission divides its ground into three parts.
48 The first two parts of the ECB’s first ground of appeal and the first part of the Commission’s first ground of appeal refer to paragraphs 34 and 35 of the judgment under appeal, on the basis of which the General Court held that the decisions at issue were of direct concern to Ms Corneli, since the effects produced by those decisions on a company and on its bodies amount to effects on the situation of each shareholder of that company, including those who, like Ms Corneli, hold a minimal percentage of the capital. In that regard, the ECB complains, in the first part of its first ground of appeal, that the General Court distorted the facts. In addition, the ECB, in the second part of its first ground of appeal, and the Commission, in the first part of its first ground of appeal, claim that the General Court erred in law.
49 Those institutions state that the rights listed in paragraph 34 of the judgment under appeal do not belong, individually, to each shareholder and argue that the General Court relied on a misinterpretation of the applicable provisions of Italian law and Banca Carige’s statutes. It is apparent from those provisions and statutes, first, that only shareholders holding at least 1% of the ordinary shares have the right to submit lists for the election of the members of the board of directors and the supervisory committee, second, that the right to elect the members of those bodies can be exercised only at the general meeting of the shareholders, third, that the right to convene the general meeting of shareholders and to set its agenda may be exercised only by a group of shareholders representing 5% of the share capital of the company and, fourth, that the decision to bring an action for damages against the directors of a company may be taken only at the general meeting of shareholders or by a group of shareholders representing 2.5% of the share capital.
50 The ECB submits, moreover, that the present dispute is analogous to the case which gave rise to the judgment of the European Court of Human Rights of 7 July 2020, Albert and Others v. Hungary (CE:ECHR:2020:0707JUD000529414), by which, according to the ECB, that court held that the effects of the acts at issue in that case were of direct concern not to the applicants in that case, who are shareholders of two banks, but to those banks themselves, their shareholders having suffered only indirect and ancillary effects.
51 By the third and second parts of their first grounds of appeal, respectively, the ECB and the Commission, supported by the Italian Republic, criticise paragraphs 58, 61 to 63, 74 and 75 of the judgment under appeal, by which the General Court examined whether the decisions at issue were of individual concern to Ms Corneli.
52 In that regard, they complain that the General Court failed to have regard to the case-law cited in paragraph 56 of the judgment under appeal. They argue that the mere fact that it was possible to identify Banca Carige’s shareholders as at 1 January 2019, when the markets were closed, does not mean that the decision to place Banca Carige under temporary administration, adopted on that same day, was of individual concern to those shareholders. The same is true of the extension decision, which was not adopted on a public holiday, as the General Court itself acknowledged. The placing under temporary administration was, they claim, of concern to Banca Carige, the addressee of the decisions at issue, as well as to Banca Carige’s directors, but not to its shareholders. In addition, the General Court did not explain why the vote cast by Ms Corneli against a motion for a resolution presented at the general meeting of shareholders had the effect of distinguishing her individually in the same way as the addressees of the decisions at issue.
53 Furthermore, the grounds set out in paragraphs 74 and 75 of the judgment under appeal do not permit the inference that Ms Corneli belonged to a ‘closed group’ within the meaning of the case-law of the Court of Justice cited in paragraph 71 of that judgment. The judgment 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), referred to by the General Court in paragraph 74 of the judgment under appeal, is, they allege, irrelevant, since the decisions at issue are not regulatory acts.
54 More generally, the case-law of the Court of Justice relating to ‘closed groups’ was developed in the particular context of cases in which EU acts of general application in fact concerned only a small number of operators, with the result that they were immediately identifiable. By contrast, the approximately 35 000 shareholders in Banca Carige could not reasonably be regarded as constituting such a restricted group of economic operators. Moreover, that case-law does not apply where the persons concerned by an act are identifiable by virtue of an objective legal or factual situation defined by the act concerned itself. That is the case with Ms Corneli and any other shareholder in Banca Carige.
55 By, respectively, the fourth and third parts of their first grounds of appeal, the ECB and the Commission, supported by the Italian Republic, claim that the General Court erred in law in holding that Ms Corneli had the requisite legal interest in bringing the action for annulment of the decisions at issue. The Court of Justice has only exceptionally acknowledged that the shareholders of a company that is the addressee of an act of an EU institution have such an interest - namely where such an act has also resulted in an amendment of the statutes of the company concerned or has significant direct effects, of a confiscatory nature, to the detriment of the shareholders. The establishment of a transitional governance structure for a bank does not constitute such an exceptional case.
56 Furthermore, the General Court failed to demonstrate that the decisions at issue were such as to adversely affect Ms Corneli’s interests. First, in paragraph 81 of the judgment under appeal, the General Court incorrectly attributed to each shareholder rights which belong to qualified minority shareholders. Second, in paragraph 82 of that judgment, it stated that there are differences between the effects on Banca Carige and on its shareholders respectively by any annulment of the decisions at issue, without, however, identifying those differences. The Commission adds that the General Court failed to examine - in some instances, of its own motion - whether Ms Corneli’s possible interest in bringing an action continued after the completion of Banca Carige’s period of temporary administration.
57 Ms Corneli disputes the admissibility of the ECB’s first ground of appeal, on the basis that the ECB did not specify whether it was alleging an error of law or a distortion of the facts. In any event, Ms Corneli submits that both the ECB’s first ground of appeal and the Commission’s first ground of appeal must be rejected as unfounded.
58 As regards the admissibility of the ECB’s first ground of appeal, 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 of the Court that an appeal must indicate precisely the contested paragraphs of the judgment under appeal and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal concerned may be inadmissible (judgment of 23 November 2021, Council v Hamas, C‑833/19 P, EU:C:2021:950, paragraph 50 and the case-law cited).
59 In the present instance, the ECB’s first ground of appeal meets those requirements, with the result that it is admissible; this cannot be called into question, contrary to what is claimed, in essence, by Ms Corneli, by the fact that the ECB criticises the General Court for both an error of law and a distortion of the facts.
60 As regards the examination of the substance of the ECB’s and the Commission’s first grounds of appeal, the admissibility of an action brought, in accordance with the fourth paragraph of Article 263 TFEU, by a natural or legal person against an act which is not addressed to them is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 59).
61 Since the present cases do not correspond to the second scenario, it is necessary to examine whether the General Court was correct in so far as it found that the decisions at issue were of direct and individual concern to Ms Corneli.
62 In the first place, as regards the question whether those decisions were of direct concern to Ms Corneli, it is apparent from settled case-law, as also referred to by the General Court in paragraph 33 of the judgment under appeal, that 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 the contested measure must, first, directly affect the legal situation of the individual and, second, 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 (judgment 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 and the case-law cited).
63 In the present instance, in paragraph 34 of the judgment under appeal, the General Court found that the decisions at issue infringed the rights of the shareholders of Banca Carige, including Ms Corneli. First, according to the General Court, those decisions infringed the rights of those shareholders to elect the management and supervisory bodies of that bank, and their right to convene a general meeting of the shareholders and to set the agenda of that meeting. Second, they affected the conditions in which Banca Carige’s managing and supervisory bodies may be held liable by its shareholders, given that civil actions could be brought against the temporary administrators appointed by the ECB only in the event of intentional fault or serious misconduct and only with the authorisation of the ECB, whereas actions for damages could be brought against the members of the dissolved bodies of Banca Carige or the managing director of that bank only by the temporary administrators, which prevented the right to bring such an action from being exercised at the meeting of the shareholders or by the shareholders who together hold a certain proportion of the share capital.
64 On the basis of those findings, the General Court held, in paragraph 35 of the judgment under appeal, that the legal relationship between Banca Carige and its shareholders, including Ms Corneli, had been altered, without the intervention of any intermediate measure, by the decisions at issue, which therefore directly concerned Ms Corneli.
65 In support of their claims alleging an error of law vitiating paragraphs 34 and 35 of the judgment under appeal, the ECB and the Commission complain that the General Court failed to take account of the fact that the right to submit a list of candidates for the election of the members of Banca Carige’s board of directors and supervisory committee, the right to convene the general meeting of that bank and the right to bring an action for damages against the members of the management and supervisory bodies of that bank could be exercised only by shareholders holding, individually or collectively, a greater proportion of the capital of Banca Carige than that held by Ms Corneli.
66 From the time Banca Carige was placed under temporary administration and for as long as that situation continued, Ms Corneli was deprived, at the very least, of the possibility of exercising her right, as a shareholder of that bank, to join other shareholders in that bank in order to exercise collectively one or other of the rights referred to in the preceding paragraph. That is an effect on Ms Corneli’s legal situation which follows directly from the adoption of the decisions at issue, which left no discretion to their addressee in that regard, with the result that the conditions laid down by the case-law cited in paragraph 62 of the present judgment were indeed satisfied, as the General Court correctly held.
67 In addition, as regards the first part of the first ground of the ECB’s appeal alleging that the General Court distorted the applicable provisions of Italian law or Banca Carige’s statutes, the Court notes that, according to settled case-law, a distortion must be obvious from the documents in the Court’s file, without any need for a new assessment of the facts and the evidence (judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C‑376/20 P, EU:C:2023:561, paragraph 142 and the case-law cited).
68 In the present case, contrary to what the ECB claims, it is not apparent from the judgment under appeal that the General Court found that Ms Corneli could, under the applicable provisions of Italian law or the bank’s statutes, have exercised only one or other of the rights listed in paragraph 34 of the judgment under appeal. On the contrary, in response to an argument put forward before it by the ECB and by the Commission, alleging that the rights allegedly affected by the decisions at issue did not belong individually to each shareholder of the company concerned, but rather to the general meeting of its shareholders, the General Court noted, in paragraphs 44 and 45 of the judgment under appeal, that that argument disregarded, at the very least, the right to vote which allows each shareholder to participate individually in the election of members who will sit in the management and supervisory bodies of Banca Carige, a right which had to be subject to legal protection and which could not be exercised once Banca Carige was placed under temporary administration.
69 The grounds of the judgment under appeal, as summarised in the preceding paragraph, show that the General Court did indeed have regard to the fact that certain decisions referred to in paragraph 34 of the judgment under appeal could, under the applicable provisions of Italian law or the bank’s statutes, be adopted only collectively, at Banca Carige’s general meeting or by shareholders of that bank holding a certain proportion of its share capital. However, the General Court essentially found, correctly, that that fact did not permit the inference that the decisions at issue did not directly concern a specific shareholder, such as Ms Corneli.
70 Lastly, the consideration of the judgment of the European Court of Human Rights of 7 July 2020, Albert and Others v. Hungary (CE:ECHR:2020:0707JUD000529414), relied on by the ECB, does not call into question the finding that the decisions at issue were of direct concern to Ms Corneli.
71 In order to find that the applicants in the case that gave rise to that judgment, who were shareholders of two Hungarian savings banks, could not claim ‘victim’ status within the meaning of Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, the European Court of Human Rights relied on the distinction drawn in its case-law between measures affecting the interests of a company and those adversely affecting the rights attaching to the status of shareholder of that company.
72 By holding that the legislation at issue in that case came within the first category of measures, that court applied the general principle which emerges from its case-law and which was recalled in paragraph 124 of that judgment, according to which the shareholders of a company cannot rely on the status of being a ‘victim’, in the sense referred to above, of acts or measures affecting their company. In that regard, it noted particularly, in essence, in paragraph 151 of that judgment, that that legislation did not have the effect of preventing, even temporarily, the shareholders of the two banks concerned from exercising the rights they held in that specific capacity.
73 Those findings, which relate to the criteria for relying on ‘victim’ status within the meaning of Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, are irrelevant for the purpose of determining whether, in the present instance, Ms Corneli is directly concerned by the decisions at issue.
74 In the second place, as regards the question whether the contested decisions at issue were of individual concern to Ms Corneli, as the General Court pointed out in paragraph 56 of the judgment under appeal, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if the measure in respect of which annulment is sought affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 4 October 2024, Commission v Council and Council v Front Polisario, C‑779/21 P and C‑799/21 P, EU:C:2024:835, paragraph 107 and the case-law cited).
75 Indeed, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 157 and the case-law cited).
76 However, where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of that group, those persons must be regarded as being individually concerned by that measure (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 158 and the case-law cited).
77 In the present instance, as is apparent from paragraphs 56 to 59 of the judgment under appeal, the General Court held that Ms Corneli was individually concerned by the decisions at issue since, in her capacity as a shareholder of Banca Carige, she met two conditions. First, she was part of a group the members of which were identified or identifiable when the decisions at issue were adopted and, second, that identification could be based on criteria specific to the members of that group, namely that of holding shares in the capital of that bank and that of being prevented, by the effect of those decisions, from exercising certain rights attaching to those shares.
78 As regards that second condition, the General Court noted, in paragraph 61 of the judgment under appeal, that Ms Corneli had, before the adoption of the decisions at issue, acquired rights attaching to her shares which had been infringed during the period in which the decisions at issue were applicable. In particular, the General Court referred, in paragraph 62 of that judgment, to the suspension of the functions of Banca Carige’s general meeting which, as the first effect produced by the decision to place Banca Carige under temporary administration, deprived the shareholders of that bank of the opportunity to share their views with regard to the proposals which nevertheless concerned them.
79 Those grounds of the judgment under appeal constitute a correct application of the case-law of the Court of Justice, cited in paragraphs 74 to 76 of the present judgment, and are therefore not vitiated by an error of law. The arguments of the ECB and the Commission criticising those grounds are not such as to call that conclusion into question.
80 First, although it is true that the General Court referred, in paragraph 58 of the judgment under appeal, to the fact that the decision to place Banca Carige under temporary administration had been adopted on 1 January, namely a day on which, since the credit institutions were closed, the shares held by Banca Carige’s shareholders could not be traded, it did not rely on that fact alone in order to find that Ms Corneli was individually concerned by the decisions at issue, as evidenced by the fact that it found that Ms Corneli was also individually concerned by the extension decision, which, as the General Court noted in the same paragraph of the judgment under appeal, had not been adopted on a public holiday.
81 In other words, paragraph 58 of the judgment under appeal cannot be read as meaning that the General Court was providing its reasoning for the finding that Ms Corneli was individually concerned, in particular, by the decision to place Banca Carige under temporary administration when it stated that that decision had been adopted on a public holiday. It must be understood as seeking merely to emphasise, for the sake of completeness, the fact that, since stock exchanges were closed on that day, Banca Carige’s shareholders, who were individually concerned by that decision, were all the more readily identifiable.
82 Similarly, paragraph 63 of the judgment under appeal cannot be read as meaning that it was on the basis of the finding that Ms Corneli was one of Banca Carige’s shareholders who had cast a vote against a proposal at the general meeting of 22 December 2018 that the General Court decided that Ms Corneli was individually concerned by the decisions at issue, particularly since, in that paragraph, the General Court stated that that vote ‘expressed only a request for postponement’. By those findings, the General Court sought rather to emphasise the importance for Ms Corneli of the right to participate in Banca Carige’s general meeting, a right which she could not exercise as long as the decisions at issue were in force.
83 Second, contrary to what is claimed by the ECB and the Commission, the case-law of the Court of Justice cited in paragraph 76 of the present judgment, relating to groups of persons identified or identifiable by reference to criteria specific to the members of the group concerned, is applicable in the present instance. The fact, relied on by the ECB and the Commission, that Banca Carige had some 35 000 shareholders who were all individually concerned by the decisions at issue is irrelevant in that regard. The application of that case-law depends solely on the possibility of identifying the persons whom an act affects on the basis of criteria specific to those persons, and not on the greater or lesser number of the persons identified.
84 The case-law of the Court of Justice referred to in paragraph 75 of the present judgment, relied on by the ECB and the Commission, does not concern a situation such as the one at issue in the present cases. That case-law concerns situations in which a measure is applied by virtue of a legal or factual situation defined by the act in question, with the result that it covers, by definition, acts of general application, as the Advocate General observed in point 66 of her Opinion, and not individual acts, such as the decisions at issue.
85 Third, as regards the complaints directed against paragraphs 74 and 75 of the judgment under appeal, it is sufficient to note that, as is apparent from paragraphs 77 to 79 of the present judgment, the grounds set out in paragraphs 56 to 62 of the judgment under appeal demonstrate to the requisite legal standard that Ms Corneli was individually concerned by the decisions at issue. In those circumstances, those complaints, even if well founded, cannot lead to the judgment under appeal being set aside and must be rejected as ineffective, since they are directed against grounds included in that judgment purely for the sake of completeness (see, to that effect, judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar, C‑96/09 P, EU:C:2011:189, paragraph 211 and the case-law cited).
86 In the third place, as far as concerns Ms Corneli’s legal interest in bringing the action, the Court notes that, according to settled case-law, any action for annulment brought under Article 263 TFEU by a natural or legal person must be based on an interest on the part of the applicant in bringing proceedings. The existence of such an interest presupposes that annulment of the contested measure must be capable of procuring an advantage for that person (judgment of 13 July 2023, D & A Pharma v EMA, C‑136/22 P, EU:C:2023:572, paragraphs 43 and the case-law cited).
87 In the present instance, in paragraph 81 of the judgment under appeal, the General Court found that, in order to establish a legal interest in bringing proceedings against the decisions at issue, Ms Corneli had relied on the impact of those decisions on her rights, in her capacity as a shareholder in Banca Carige, in particular the right to convene a general meeting in order to propose that an action be brought or the right to add a point to that effect to the agenda of such a meeting.
88 The General Court inferred from this, in paragraph 82 of the judgment under appeal, that it could not be found that, if the decisions at issue were annulled, the effect of that annulment on the situation of the shareholders would be identical to that produced on the situation of Banca Carige and that, consequently, the requirement that a shareholder have a legal interest in bringing proceedings separate from that of the company in which he or she holds shares was satisfied in the present instance.
89 Those grounds of the judgment under appeal provide reasons that meet the requisite legal standard to establish the existence of Ms Corneli’s interest in bringing an action for annulment, under Article 263 TFEU, of the decisions at issue, for as long as they were in force.
90 The reference, in paragraph 81 of the judgment under appeal, to the right ‘to convene a general meeting’ or ‘to add a point’ to the agenda of such a meeting does not mean, contrary to what is submitted by the ECB and the Commission, that the General Court acknowledged that Ms Corneli had rights which were not provided for by Banca Carige’s statutes or by the applicable provisions of Italian law. That reference must be read in conjunction with the grounds of the judgment under appeal according to which the decisions at issue were of direct concern to Ms Corneli. Placed in that context, that reference can only be understood as meaning that the General Court correctly held that Ms Corneli had a legal interest in bringing an action against the decisions at issue, since, if those decisions were annulled, the placing of Banca Carige under temporary administration would end and Ms Corneli would recover her right to act together with other shareholders of that bank for the purposes, inter alia, of being able to convene a general meeting or add a point to the latter’s agenda.
91 Paragraph 82 of the judgment under appeal is the logical continuation and confirmation of paragraph 81 thereof, as evidenced by the fact that it begins with the word ‘thus’.
92 In the fourth place, it is necessary to examine the Commission’s argument that the General Court failed to ascertain of its own motion whether Ms Corneli’s legal interest in bringing an action continued after the end of Banca Carige’s period of temporary administration.
93 In that regard, it should be borne in mind that, according to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist when the action is lodged, failing which the action will be inadmissible, and must, like the purpose of the action, continue to exist until the final decision, failing which there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42, and of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 26).
94 In principle, a party retains its interest in continuing an action for annulment where that action may constitute the basis of an action for damages. The possibility of an action for damages suffices to justify such an interest in bringing proceedings, in so far as that interest is not hypothetical (judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraphs 42 and 43 and the case-law cited).
95 An interest in bringing proceedings could arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU Courts is capable of benefiting the applicant (judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 44 and the case-law cited).
96 It is for an applicant to prove its interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings. In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act (judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 34 and the case-law cited).
97 In the present instance, it is apparent from paragraphs 1 and 17 of the judgment under appeal that the decisions at issue ceased to have effect on 30 September 2019.
98 Admittedly, as is apparent from the case-law referred to in paragraphs 94 and 95 of the present judgment, that fact does not necessarily mean that Ms Corneli’s legal interest in bringing an action and, therefore, the purpose of the dispute before the General Court had ceased to exist in the course of the proceedings. However, it was for the General Court, before ruling on the substance of the case brought before it, to ascertain, of its own motion as the case may be, that that had not been the case. By failing to do so, the General Court erred in law.
99 Nevertheless, that error of law cannot in itself lead to the judgment under appeal being set aside.
100 As is apparent from paragraphs 94 to 96 of the present judgment, Ms Corneli would retain her legal interest in pursuing the annulment of the decisions at issue if such annulment could form the basis of a possible action for damages.
101 In response to a written question put to her by the Court, Ms Corneli confirmed, in essence, that she was of the opinion that she had suffered damage as a result of the decisions taken by Banca Carige’s temporary administrators, appointed by the ECB, for which she intended to seek compensation. According to Ms Corneli, those decisions caused the dilution of her own shareholding in Banca Carige and, ultimately, the compulsory sale of the shares which she held, following a mandatory takeover bid, launched by BPR Banca SpA, which had acquired a majority shareholding in Banca Carige.
102 It is also apparent from Ms Corneli’s reply that she intends to bring actions for damages both before the General Court, against the ECB, and before the national courts that have jurisdiction, against the other natural or legal persons involved, as a result of the decisions at issue, in the temporary administration of Banca Carige, and subsequently in the sale of that bank.
103 In that regard, it should be noted that, in its reply to the written question put by the Court, the ECB confirmed that the temporary directors of Banca Carige did in fact take, during their term of office, a series of important decisions, including the signing, on 9 August 2019, with several parties, of a binding framework agreement concerning the recapitalisation of Banca Carige, that act having been approved, on 20 September 2019, by an extraordinary general meeting of Banca Carige’s shareholders, convened by those temporary administrators.
104 In those circumstances, it must be held, as the Advocate General proposed in points 77 and 78 of her Opinion, that, in the light of the case-law cited in paragraph 94 of the present judgment, Ms Corneli’s legal interest in bringing an action against the decisions at issue cannot be regarded as purely hypothetical, even after the period of temporary administration of Banca Carige has ended and Ms Corneli has sold her shares.
105 Therefore, although the effects of the decisions at issue and the temporary administration of Banca Carige came to an end in the course of the proceedings before the General Court, Ms Corneli’s legal interest in obtaining the annulment of those decisions has not, nevertheless, disappeared.
106 In the light of all the findings above, the respective first grounds of appeal of the ECB and the Commission must be rejected as unfounded.
107 By its second ground of appeal, the Commission, supported by the ECB and the Italian Republic, submits that Ms Corneli claimed for the first time in her reply before the General Court that, in accordance with Article 70 of the Consolidated Law on Banking, the ECB could not order a banking institution to be placed under temporary administration in the event of a significant deterioration in its situation. In paragraph 67 of her application at first instance, Ms Corneli argued exactly the opposite, interpreting Article 70 of the Consolidated Law on Banking in the same way as the ECB.
108 According to the Commission, the correct interpretation of Article 70 of the Consolidated Law on Banking did not require an awareness of the entire text of the decision to place Banca Carige under temporary administration, to which Ms Corneli had access only after she brought her action. The Commission therefore argues that Ms Corneli raised, for the first time in her reply before the General Court, a new plea, which was not based on matters of law or of fact which came to light in the course of the proceedings. By failing to reject that new plea as inadmissible, the General Court infringed Article 84(1) of its Rules of Procedure.
109 Ms Corneli submits that that ground of appeal should be rejected.
110 It follows from Article 84(1) and (2) of the Rules of Procedure of the General Court that pleas put forward for the first time in the reply and which are not based on matters of law or of fact which came to light in the course of the procedure must be declared inadmissible. However, a plea or argument which may be regarded as amplifying a plea put forward previously in the application that started the case cannot be declared inadmissible on the ground that it was raised with undue delay (see, to that effect, judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 41 and the case-law cited).
111 In the present instance, it is apparent from the application at first instance that, in support of her action, Ms Corneli relied, inter alia, on a plea alleging infringement by the ECB of Article 70(1) of the Consolidated Law on Banking; this was not challenged on appeal by the Commission.
112 It is true, as the Commission submits, that Ms Corneli claimed for the first time in her reply at first instance that the latter provision did not allow a bank to be placed under temporary administration in the event of a significant deterioration in its situation.
113 However, Ms Corneli cannot be criticised for having put forward, at the stage of that reply, a new plea, in so far as that argument constituted an amplification, within the meaning of the case-law cited in paragraph 110 of the present judgment, of the plea alleging infringement of Article 70(1) of the Consolidated Law on Banking, which was relied on in her application initiating proceedings. Although, in her application, she claimed, inter alia, that no particularly significant deterioration in Banca Carige’s situation had been demonstrated, she stated, in her reply, that that provision did not allow a bank to be placed under temporary administration in such a situation. In so doing, Ms Corneli merely supplemented her line of argument seeking to demonstrate that, as she had already claimed in that application, the ECB had adopted the decision to place Banca Carige under temporary administration in breach of that provision.
114 Therefore, the question whether or not Ms Corneli was in a position to put forward that argument effectively without having access to the full text of the decision to place Banca Carige under temporary administration, since she had obtained that document only after she had lodged her application, is irrelevant.
115 It follows that the General Court cannot be criticised for having infringed Article 84(1) of its Rules of Procedure by failing to reject of its own motion as inadmissible Ms Corneli’s argument referred to in paragraph 112 of the present judgment on the ground that it was raised with undue delay. Consequently, the Commission’s second ground of appeal must be rejected as unfounded.
116 The ECB, by its second ground of appeal, and the Commission, by its third ground of appeal, claim that the General Court erred in law in finding that the ECB had infringed Article 70 of the Consolidated Law on Banking by adopting the decisions at issue.
117 In the first place, the Commission submits that the phrase ‘in the event of an infringement or irregularity referred to in Article 69octiesdecies(1)(b) [of the Consolidated Law on Banking]’ in Article 70(1) of that law should be read as covering not only the ‘serious infringements of legislative, regulatory or statutory provisions’ and ‘serious irregularities in the administration’, but also ‘particularly significant … deterioration in the situation of the bank or banking group’, as is also referred to in Article 69octiesdecies(1)(b) of the Consolidated Law on Banking.
118 In the second place, the ECB and the Commission submit that a contextual and systematic interpretation of the provisions at issue also suggests that the reference in Article 70(1) of the Consolidated Law on Banking to Article 69octiesdecies(1)(b) of that law also covers cases of particularly significant deterioration in the situation of the bank concerned. There is a logical sequence between the ‘removal’, within the meaning of the first of those provisions, and the ‘dissolution’, within the meaning of the latter, of the administrative or supervisory bodies of a bank. It would therefore be unreasonable to take the view that, in the event of a particularly significant deterioration in the situation of a bank, the Italian legislature intended to authorise only the first measure and not the second.
119 In the third place, the ECB and the Commission claim that the interpretation of Article 70(1) of the Consolidated Law on Banking which they propose is borne out by the legislative history of that provision and by the related travaux préparatoires. That interpretation is also consistent with the objective pursued by the Italian legislature and with the need to comply with the Constitution of the Italian Republic. Article 70(1) of the Consolidated Law on Banking is the result of an amendment introduced by a legislative decree of 16 November 2015, adopted by the Italian Government on the basis of a delegation conferred by the Italian Parliament, to ensure the transposition of EU directives. It is apparent from the settled case-law of the Corte costituzionale (Constitutional Court, Italy) that, in exercising that delegation, that government is required to comply scrupulously with all EU law. Furthermore, the ECB and the Commission point out that the interpretation of Article 70 of the Consolidated Law on Banking which they propose is also borne out by the case-law of the Italian courts.
120 By its fourth ground of appeal, the Commission submits that the General Court infringed EU law and, more specifically, the third paragraph of Article 288 TFEU, by excluding, in paragraphs 105 to 107 of the judgment under appeal, any possibility of interpreting Article 70(1) of the Consolidated Law on Banking in a manner consistent with Article 29 of Directive 2014/59. According to the Commission, the reference, in paragraph 105 of that judgment, to an interpretation of national law ‘contra legem’ is ‘debatable from a semantic point of view’, since the expression ‘contra legem’ is not applicable when it comes to interpreting the scope of a reference made by one provision to another provision, as is the case with Article 70 of the Consolidated Law on Banking, which refers to Article 69octiesdecies(1)(b) of that law.
121 The Commission submits that, in order to determine whether the interpretation of a provision of national law is ‘contra legem’, account must be taken not only of the literal interpretation of the provision concerned, but also of the other criteria for interpretation, as well as of national law as a whole. According to the Commission, there is no doubt that, on the basis of the rules of interpretation recognised in Italian law, Article 70 of the Consolidated Law on Banking may be interpreted in a manner consistent with Directive 2014/59.
122 The Italian Republic supports the interpretation of the relevant provisions of Italian law advocated by the ECB and the Commission. In its view, the concept of ‘serious financial losses’, within the meaning of Article 70(1) of the Consolidated Law on Banking, constitutes one of the types of ‘particularly significant deterioration in the situation of a bank’ within the meaning of Article 69octiesdecies(1) of that law, with the result that the ECB was entitled to refer, in the decisions at issue, to the second, more general, concept rather than the first.
123 Ms Corneli submits that the present grounds of appeal must be rejected as inadmissible, since the ECB and the Commission complain that the General Court allegedly misapplied not EU law but Italian law. At the appeal stage, the review by the Court of Justice of the interpretation of national law adopted by the General Court is limited to verifying that the General Court did not distort national law, which is not argued in the present instance.
124 As to the substance, Ms Corneli disputes the interpretation of Article 70(1) of the Consolidated Law on Banking proposed by the ECB and the Commission. She claims that, in accordance with the rules of interpretation of Italian law, priority must be given to the literal interpretation of that provision. She adds that the interpretation advocated by the ECB and the Commission is not borne out by Italian case-law.
125 Ms Corneli also claims that Directive 2014/59 has been correctly transposed into Italian law. In accordance with the principle of proportionality, that directive introduces a scale of measures by which the competent authority may intervene in the management of a bank, providing for the removal of the senior management or management body of a banking institution in situations less serious than those in which the appointing of one or more temporary administrators would be justified. The line of argument of the ECB and the Commission allegedly disregard the clear wording of Article 29(1) of that directive, which draws a distinction between situations justifying the removal of the senior management or of the management body of a banking institution and situations justifying the appointment of one or more temporary administrators.
126 Ms Corneli adds that Directive 2014/59 effects only minimal harmonisation and observes that the Commission, which had been notified of the provisions of Italian law transposing that directive, did not initiate infringement proceedings against the Italian Republic, which would have been the case if that directive had not been transposed correctly. Even if that were the case, Ms Corneli submits that that fact cannot justify an interpretation of Article 70 of the Consolidated Law on Banking that is contrary to its wording.
127 The ECB, by its second ground of appeal, and the Commission, by its third and fourth grounds of appeal, submit, in essence, that the General Court erred in finding, in paragraphs 107 and 108 of the judgment under appeal, that, for the purposes of applying Article 70(1) of the Consolidated Law on Banking in the present instance, the ECB had interpreted that national provision contra legem and, therefore, disregarded the limit laid down by EU law on the obligation to interpret that provision in a manner consistent with Article 29(1) of Directive 2014/59.
128 As regards the admissibility of those grounds of appeal, the Court notes that the jurisdiction of the Court of Justice ruling on an appeal against a decision given by the General Court is defined by the second subparagraph of Article 256(1) TFEU. That provision states that an appeal is to be on points of law only and that it must be made ‘under the conditions and within the limits laid down by the Statute’. In a list setting out the grounds that may be relied upon in that context, the first paragraph of Article 58 of the Statute of the Court of Justice states that an appeal may be based on infringement of European Union law by the General Court (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 46).
129 The question raised by those grounds of appeal of whether the General Court infringed EU law by finding that the ECB had exceeded the limits of its obligation under EU law to interpret national law in conformity with EU law is tantamount to requesting the Court of Justice to determine whether there was an infringement of EU law by the General Court. That is therefore a point of law which is, as such, subject to review by the Court of Justice on appeal.
130 Therefore, contrary to what is claimed by Ms Corneli, those grounds of appeal are admissible.
131 As regards the substance, it is apparent from paragraph 2 of the judgment under appeal that Banca Carige was subject to direct prudential supervision by the ECB. In adopting the decisions at issue, the ECB relied, as paragraph 111 of the judgment under appeal confirms, on Article 4(3) of Regulation No 1024/2013.
132 In accordance with the first sentence of Article 4(3) of that regulation, for the purpose of carrying out the tasks conferred on it by that regulation, which include the prudential supervision of certain credit institutions, the ECB is to apply all relevant EU law, and where that EU law is composed of directives, the national law transposing those directives. According to the second sentence of Article 4(3), where the relevant EU law is composed of regulations and where currently those regulations explicitly grant options for Member States, the ECB is also to apply the national legislation exercising those options.
133 It is thus apparent from reading Article 4(3) of Regulation No 1024/2013 as a whole that the ECB’s application of national law is intended to respect the choices made by the national legislature within the framework established by the relevant provisions of EU law, regardless of whether they appear in regulations or directives.
134 In that regard, the Court notes that, by applying their national law to the situation of a bank which does not come under the direct prudential supervision of the ECB, the administrative and judicial authorities of a Member State that are called upon, within the exercise of their respective powers, to apply provisions of EU law are, according to settled case-law, under a duty to give full effect to those provisions (see, to that effect, judgment of 13 October 2022, HUMDA, C‑397/21, EU:C:2022:790, paragraph 41 and the case-law cited).
135 In particular, where the applicable EU law is composed of directives, the principle that national law must be interpreted in conformity with EU law implies, as the General Court pointed out in paragraph 103 of the judgment under appeal, the need to interpret national law, so far as possible, in the light of the wording and purpose of those directives, in order to achieve the result sought by them (see, to that effect, judgment of 26 February 2019, T Danmark and Y Denmark, C‑116/16 and C‑117/16, EU:C:2019:135, paragraph 87 and the case-law cited).
136 Similarly, the ECB is required, where, in accordance with Article 4(3) of Regulation No 1024/2013, it applies a national set of rules transposing a directive to a bank which, like Banca Carige, comes under its direct prudential supervision, to interpret the provisions of that set of rules on which it is relying in a manner consistent with that directive.
137 As it itself pointed out in paragraph 103 of the judgment under appeal, where it is led, as in the present instance, to apply national law, the General Court has the same duty to interpret national law in conformity with EU law, taking into account the directive which it is supposed to transpose.
138 As the General Court also recalled in paragraph 105 of the judgment under appeal, the obligation on a national court to take account of the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, such as those of legal certainty and non-retroactivity, and it cannot serve as the basis for a contra legem interpretation of national law (see judgments of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraphs 44 and 47, and of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 222 and the case-law cited).
139 It is in the light of the findings set out in paragraphs 132 to 138 of the present judgment and of the need to respect the primacy of EU law and the requirement for its uniform application, in the context of the exercise by the ECB of the powers conferred on it by Regulation No 1024/2013, that the concept of ‘interpretation contra legem’ must be understood.
140 Furthermore, it must be presumed that, where national provisions have been specifically enacted for the purpose of transposing a directive, the Member State concerned intended to fulfil entirely the obligations arising from that directive (see, to that effect, judgment of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 112 and the case-law cited).
141 Consequently, the prohibition, under the case-law cited in paragraph 138 of the present judgment, on an interpretation of national law contra legem covers only the situation in which national law cannot be applied in such a way that it leads to a result compatible with that envisaged by the provision of EU law concerned (see, to that effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 76 and the case-law cited).
142 In the present instance, it is apparent from paragraphs 107 and 108 of the judgment under appeal that the General Court found, in essence, that the ECB had disregarded the limitation, laid down by EU law, on interpreting Article 70(1) of the Consolidated Law on Banking in accordance with Article 29(1) of Directive 2014/59, by interpreting the national provision at issue contra legem.
143 It is therefore for the Court of Justice to examine whether, on those grounds, the General Court infringed EU law, as argued by the ECB, in its second ground of appeal, and by the Commission, in its third and fourth grounds of appeal.
144 In that regard, it must be borne in mind that Article 28 of Directive 2014/59 lays down an obligation on Member States to ensure that competent authorities may require the removal of the senior management or management body of the institution, in its entirety or with regard to individuals, in particular if there is a ‘significant deterioration’ in the financial situation of that institution.
145 Article 29(1) of that directive provides, for its part, that where replacement of the senior management or management body as referred to in Article 28 is deemed to be insufficient by the competent authority to remedy such a situation, Member States are to ensure that that authority may appoint one or more temporary administrators to the institution.
146 It is thus apparent from a combined reading of those two provisions that the Member States must ensure that, where there is a significant deterioration in the situation of a banking institution, the competent authority may, inter alia, depending on that situation, either merely require the removal of the senior management or management body of the institution, in its entirety or with regard to individuals, or also appoint one or more temporary administrators.
147 It follows from the first and second subparagraphs of Article 9(1) and Article 9(2) of Regulation No 1024/2013 that, for the purpose of carrying out the tasks conferred on it by, inter alia, Article 4(1) and (2) of that regulation, the ECB is to be considered as the ‘competent authority’, having all the powers of such authorities under the relevant provisions of EU law, and that it is to exercise those powers in accordance with the acts referred to in the first subparagraph of Article 4(3) of that regulation.
148 In that regard, as regards Ms Corneli’s argument alleging, in essence, the need to make provision, in line with the principle of proportionality, for a ‘scale’ of intervention measures available to the competent authority in the management of a banking institution, it must be held that the system of intervention measures provided for in Articles 27 to 29 of Directive 2014/59 is in line with that principle.
149 As regards, specifically, the measure of temporary administration provided for in Article 29(1) of that directive, it is apparent from that provision that that measure may be adopted only after the less restrictive measure provided for in Article 28 of that directive, namely the replacement of the senior management or management body of the banking institution concerned, has been deemed insufficient in the light of the situation of that institution.
150 It is apparent from paragraphs 144 to 149 of the present judgment that, in transposing Directive 2014/59 into its domestic legal order, the national legislature must make provision for the competent authority to have the option to put in place temporary administration for the banking institution, in particular in the event of a significant deterioration in the situation of that institution.
151 Therefore, in accordance with the principle that national law should be interpreted in conformity with EU law and in accordance with the case-law of the Court of Justice referred to in paragraphs 134 and 135 of the present judgment, the relevant provisions of national law must, so far as possible, be interpreted in such a way as to achieve that outcome.
152 In the present instance, it is true that, as is apparent from paragraphs 92 to 95 of the judgment under appeal, both Article 69octiesdecies(1)(b) of the Consolidated Law on Banking, relating to ‘removal’ - namely, the removal of the administrative or supervisory bodies of a bank - and Article 70(1) of that text, relating to the temporary administration of a bank, lay down conditions for application which are worded in terms that are partially different.
153 In particular, although particularly significant deterioration in the situation of a bank is one of the alternative conditions justifying the removal of the administrative or supervisory bodies of a bank, laid down in Article 69octiesdecies(1)(b) of the Consolidated Law on Banking, it is not, in those terms, among the conditions for the application of Article 70(1) of that law, which relates to the temporary administration of a bank.
154 However, contrary to what the General Court held in paragraphs 107 and 108 of the judgment under appeal, it cannot be inferred from that fact alone that an interpretation of Article 70(1) of the Consolidated Law on Banking in conformity with Article 29 of Directive 2014/59, with the effect that that provision applies in the event of a significant deterioration in the situation of a bank, is, for that reason, an interpretation contra legem within the meaning of the case-law of the Court of Justice cited in paragraphs 138 and 141 of the present judgment.
155 Such an interpretation does not infringe that provision, since, as the General Court itself found in paragraph 93 of the judgment under appeal, one of the alternative circumstances justifying the application of that same provision is a circumstance in which ‘serious financial losses’ of a bank ‘are expected’.
156 The concepts of ‘significant deterioration’ in the situation of a bank, relevant in the context of Article 29 of Directive 2014/59, and of expecting ‘serious financial losses’ in Article 70(1) of the Consolidated Law on Banking, constitute legal concepts formulated in terms that are both general and similar.
157 A deterioration in the situation of a bank necessarily implies the possibility, in the near future, that financial losses will be made by that bank, which, if the deterioration is ‘significant’, are capable of being classified as ‘serious’. Conversely, if it can be expected that a bank is going to suffer serious financial losses, that can only mean that the situation of that bank is deteriorating in a manner that may be described as ‘significant’.
158 It follows that, by holding, in essence, in paragraphs 107 and 108 of the judgment under appeal, that Article 70(1) of the Consolidated Law on Banking cannot, under Italian law, serve as the basis for the adoption of a measure placing a bank facing a significant deterioration in its situation under temporary administration, without infringing the prohibition on an interpretation of national law contra legem, within the meaning of the case-law cited in paragraphs 138 and 141 of the present judgment, the General Court erred in law.
159 Consequently, without it being necessary to examine either the ECB’s other complaints in support of its second ground of appeal, or the other complaints put forward by the Commission in support of its third and fourth grounds of appeal, or the Commission’s fifth ground of appeal, the appeals must be upheld and the judgment under appeal set aside.
160 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, where it sets aside the decision of the General Court, either itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
161 In the present instance, the state of the proceedings permits final judgment to be given, in so far as regards, first, the plea of inadmissibility in respect of the action at first instance, raised by the ECB supported by the Commission, and, second, the fourth plea in that action, in so far as it alleges an error of law in the determination of the legal basis relied upon when the decisions at issue were adopted.
162 As regards, in the first place, the plea of inadmissibility in respect of the action at first instance raised by the ECB, alleging that the decisions at issue are not of direct and individual concern to Ms Corneli and that she does not have the requisite legal interest in seeking the annulment of those decisions, the Court of Justice holds, for the same reasons as those given by the General Court in paragraphs 33 to 83 of the judgment under appeal, and for the reasons set out in paragraphs 62 to 105 of the present judgment, by which the Court of Justice rejected as unfounded the respective first grounds of appeal put forward by the ECB and the Commission, that the decisions at issue are of direct and individual concern, within the meaning of the fourth paragraph of Article 263 TFEU, to Ms Corneli and that she has a legal interest in bringing proceedings against those decisions. The plea of inadmissibility must therefore be rejected.
163 In the second place, by the fourth plea in law of her action, Ms Corneli claims, in particular, that the ECB erred in law in basing the decisions at issue on Article 70(1) of the Consolidated Law on Banking, whereas that provision did not refer to the situation relied on to justify the temporary placing of Banca Carige under administration, namely a ‘significant deterioration’ of the situation of Banca Carige.
164 In that regard, it is apparent from paragraphs 144 to 158 of the present judgment that Article 70(1) of the Consolidated Law on Banking must be interpreted in conformity with Article 29(1) of Directive 2014/59.
165 First, it is true that the ‘significant deterioration’ of a bank’s situation is not mentioned in those terms among the other circumstances referred to in Article 70(1) of the Consolidated Law on Banking which can provide a reason for the implementation of that provision.
166 Nevertheless, as has been pointed out in paragraphs 157 and 158 of the present judgment, the concept of ‘significant deterioration’ in the situation of a bank is close to the condition for the application of Article 70(1) of the Consolidated Law on Banking, namely that ‘serious financial losses are expected’.
167 Second, account must be taken of the fact that Article 70(1) of the Consolidated Law on Banking forms part of a set of provisions intended to enable the recovery of banks in difficulty.
168 Furthermore, it is not in dispute that Article 70(1) of the Consolidated Law on Banking is the result of an amendment to the Italian legislation brought about by a legislative decree adopted with the express objective of transposing Directive 2014/59 into Italian law.
169 In those circumstances, the Court holds that Article 70(1) of the Consolidated Law on Banking must be interpreted as meaning that the condition that there is an expectation that the bank concerned may suffer serious financial losses is satisfied in the event of a significant deterioration in its situation and, therefore, that circumstance justifies placing that bank under temporary administration.
170 It follows that the ECB did not err in law in relying, for the purposes of adopting the decisions at issue, on Article 70(1) of the Consolidated Law on Banking and that, therefore, the fourth plea in the action at first instance, in so far as it alleges an error of law in the determination of the legal basis relied upon to adopt the decisions at issue, must be rejected as unfounded.
171 As to the remainder, the state of the proceedings does not permit final judgment to be given, since the other pleas and arguments put forward by Ms Corneli in support of her action have not been examined by the General Court.
172 Consequently, the dispute must be referred back to the General Court for it to rule on those pleas.
173 Since the case is being referred back to the General Court, the costs relating to the present appeals must be reserved. 1. Sets aside the judgment of the General Court of the European Union of 12 October 2022, Corneli v ECB (T‑502/19, EU:T:2022:627); 2. Declares that the action brought by Ms Francesca Corneli seeking annulment of European Central Bank (ECB) Decision ECB-SSM-2019-ITCAR-11 of 1 January 2019 placing Banca Carige SpA under temporary administration and ECB Decision ECB‑SSM‑2019‑ITCAR-13 of 29 March 2019 extending the duration of the period of temporary administration up to 30 September 2019 is admissible; 3. Dismisses the fourth plea in law of the action at first instance, in so far as it alleges an error in law in the determination of the legal basis relied upon in order to adopt the decisions at issue, and refers the case back to the General Court of the European Union for a decision on the other pleas in law and arguments put forward in support of that action; 4. Reserves the costs.