1 By its appeal, Trasta Komercbanka AS asks the Court of Justice to set aside the judgment of the General Court of the European Union of 30 November 2022, Trasta Komercbanka and Others v ECB (T‑698/16, ‘the judgment under appeal’, EU:T:2022:737), by which the General Court dismissed the action brought by that company and the other applicants at first instance seeking the annulment of Decision ECB/SSM/2016 - 529900WIP0INFDAWTJ81/2 WOANCA-2016-0005 of the European Central Bank (ECB) of 11 July 2016 withdrawing the authorisation of Trasta Komercbanka for access to the activities of a credit institution (‘the decision at issue’).
2 Recital 64 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 SSM Regulation’) states as follows: ‘The ECB should provide natural and legal persons with the possibility to request a review of decisions taken under the powers conferred on it by this Regulation and addressed to them, or which are of direct and individual concern to them. The scope of the review should pertain to the procedural and substantive conformity with this regulation of such decisions while respecting the margin of discretion left to the ECB to decide on the opportunity to take those decisions. For that purpose, and for reasons of procedural economy, the ECB should establish an administrative board of review to carry out such internal review. To compose the board, the Governing Council of the ECB should appoint individuals of a high repute. … The procedure laid down for the review should provide for the Supervisory Board to reconsider its former draft decision as appropriate.’
3 Article 4(1)(a) of that regulation provides: ‘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:
4 Article 14(5) of that regulation is worded as follows: ‘Subject to paragraph 6, the ECB may withdraw the authorisation in the cases set out in relevant [EU] law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such national competent authority. These consultations shall in particular ensure that before taking decisions regarding withdrawal, the ECB allows sufficient time for the national authorities to decide on the necessary remedial actions, including possible resolution measures, and takes these into account. Where the national competent authority which has proposed the authorisation in accordance with paragraph 1 considers that the authorisation must be withdrawn in accordance with the relevant national law, it shall submit a proposal to the ECB to that end. In that case, the ECB shall take a decision on the proposed withdrawal taking full account of the justification for withdrawal put forward by the national competent authority.’
5 Article 24 of that regulation provides: ‘1. The ECB shall establish an Administrative Board of Review for the purposes of carrying out an internal administrative review of the decisions taken by the ECB in the exercise of the powers conferred on it by this Regulation after a request for review submitted in accordance with paragraph 5. The scope of the internal administrative review shall pertain to the procedural and substantive conformity with this Regulation of such decisions. … 5. Any natural or legal person may in the cases referred to in paragraph 1 request a review of a decision of the ECB under this Regulation which is addressed to that person, or is of a direct and individual concern to that person. … … 7. After ruling on the admissibility of the review, the Administrative Board of Review shall express an opinion within a period appropriate to the urgency of the matter and no later than two months from the receipt of the request and remit the case for preparation of a new draft decision to the Supervisory Board. The Supervisory Board shall take into account the opinion of the Administrative Board of Review and shall promptly submit a new draft decision to the Governing Council. The new draft decision shall abrogate the initial decision, replace it with a decision of identical content, or replace it with an amended decision. The new draft decision shall be deemed adopted unless the Governing Council objects within a maximum period of ten working days. 8. A request for review pursuant to paragraph 5 shall not have suspensory effect. However, the Governing Council, on a proposal by the Administrative Board of Review may, if it considers that circumstances so require, suspend the application of the contested decision. … 11. This Article is without prejudice to the right to bring proceedings before the [Court of Justice of the European Union] in accordance with the Treaties.’
6 Article 80 of Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (OJ 2014 L 141, p. 1) provides: ‘1. If the relevant [national competent authority (NCA)] considers that a credit institution’s authorisation should be withdrawn in whole or in part in accordance with relevant Union or national law, including a withdrawal at the credit institution’s request, it shall submit to the ECB a draft decision proposing the withdrawal of the authorisation …, together with any relevant supporting documents. 2. The NCA shall coordinate with the national authority competent for the resolution of credit institutions … with regard to any draft withdrawal decision that is relevant to the national resolution authority.’
7 Under Article 4(1)(a) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43): ‘1. The institutions shall refuse access to a document where disclosure would undermine the protection of:
8 The background to the dispute, set out in paragraphs 2 to 10 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
9 Trasta Komercbanka is a Latvian credit institution, which is small in size and significance and provided financial services under an authorisation granted to it in September 1991 by the Latvian Financial and Capital Markets Commission (‘the FCMC’).
10 Mr Ivan Fursin, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA were shareholders of the appellant (‘the shareholders’).
11 On 5 February 2016, the ECB received a proposal from the FCMC to withdraw the appellant’s authorisation for access to the activities of a credit institution, pursuant to Article 14(5) of the SSM Regulation.
12 On 3 March 2016, the ECB adopted Decision ECB/SSM/2016 - 529900WIP0INFDAWTJ81/1 WOANCA-2016-0005 (‘the first decision’), by which it withdrew the appellant’s authorisation for access to the activities of a credit institution and rejected its application for suspension of the effects of that decision for one month.
13 On 14 March 2016, at the request of the FCMC, the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District), Latvia) initiated liquidation proceedings in respect of the appellant and appointed a liquidator.
14 On 17 March 2016, a notice of the opening of liquidation proceedings in respect of the appellant and of the replacement of the management of that credit institution by the liquidator was published in the Latvijas Vēstnesis (Latvian Official Journal).
15 On 3 April 2016, the Administrative Board of Review of the ECB (‘the ABR’) received a request for review of the first decision. By an opinion of 30 May 2016 (‘the ABR opinion’), that board considered that the procedural and substantive infringements alleged by the appellant concerning that decision were unfounded and that that decision was sufficiently motivated and proportionate.
16 On 13 May 2016, the lawyer who represented Trasta Komercbanka during the administrative review procedure brought, on its behalf, an action for annulment of the first decision, registered as Case T‑247/16.
17 On 11 July 2016, the ECB adopted the decision at issue. That decision has, from the date of its adoption, replaced the first decision.
18 By order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), the General Court, first, held that there was no need to adjudicate on the appellant’s action, referred to in paragraph 16 above, for annulment of the first decision, because the appellant’s lawyer no longer had an authority to act properly conferred by a person authorised to that end, and, second, rejected the plea of inadmissibility raised by the ECB by separate document lodged at the Registry of the General Court on 29 September 2016, in so far as it concerned the action brought by the shareholders.
19 By 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), the Court of Justice set aside the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623).
20 In that judgment, the Court of Justice held, inter alia, that it was necessary, first, to uphold the ECB’s plea of inadmissibility in so far as it was directed at the action brought by the shareholders in Case T‑247/16 and, consequently, to dismiss that action as inadmissible in so far as it concerned them, and, second, to refer that case back to the General Court for it to rule on the action brought by the appellant for annulment of the first decision.
21 By order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), which has not been appealed, the General Court held that there was no longer any need to adjudicate on the action, since that action had become devoid of purpose as a result of the replacement, with retroactive effect, of the first decision by the decision at issue, and that, consequently, the appellant had lost its interest in seeking the annulment of that first decision.
22 By application lodged at the Registry of the General Court on 23 September 2016, Trasta Komercbanka and the shareholders brought an action for annulment of the decision at issue. They put forward eight pleas in law in support of that action.
23 By decision of 13 May 2020, the General Court granted the Republic of Latvia and the European Commission leave to intervene in support of the form of order sought by the ECB.
24 In the judgment under appeal, the General Court first decided that there was no longer any need to adjudicate on the action in so far as it concerned one of the applicants at first instance, Mr Igors Buimisters, because he had passed away and his representative had not submitted any observations as to the next steps to be taken in the proceedings.
25 In the examination of the admissibility of the action, the General Court moreover recalled that the Court of Justice had held, in paragraph 119 of the 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), that, for the reasons set out in paragraphs 108 to 114 of that judgment, the first decision did not directly concern the shareholders, and it had thus inferred that the ECB’s plea of inadmissibility, referred to in paragraph 18 of the present judgment, had to be upheld in so far as it concerned the action brought by those shareholders and that action had to be dismissed as inadmissible. As a result, and inasmuch as the decision at issue was identical in content to the first decision which it had repealed and replaced with retroactive effect, the General Court held that it was necessary, for the same reasons as those set out in that judgment, to dismiss the action before it as inadmissible in so far as it concerned the shareholders.
26 Lastly, as to the substance, the General Court dismissed the action for annulment of the decision at issue, as brought by the appellant, in its entirety, ordered the applicants at first instance, with the exception of Mr Buimisters, to pay the costs and ordered Mr Buimisters, the Commission and the Republic of Latvia to bear their own costs.
27 By its appeal, Trasta Komercbanka claims that the Court should: - set aside the judgment under appeal; - annul the decision at issue; - in the alternative, in the event that the Court of Justice is not in a position to rule on the substance of the case, refer the case back to the General Court; and - order the ECB to pay the costs.
28 The ECB contends that the Court of Justice should dismiss the appeal as in part manifestly inadmissible and in part manifestly unfounded and, in the alternative, dismiss the appeal as unfounded and, in the further alternative, should the Court consider that the decisions adopted by the ECB under Article 24(7) of the SSM Regulation do not have retroactive effect, limit the extent to which the decision at issue is annulled to the element providing that that decision has retroactive effect. It also contends that Trasta Komercbanka should be ordered to pay the costs.
29 The Commission contends that the Court should dismiss the appeal and order Trasta Komercbanka to pay the costs.
30 In support of its appeal, the appellant relies on three grounds of appeal alleging, first, breach of its right to effective representation in the procedure for the adoption of the decision at issue; second, failure to comply with the principle of the protection of legitimate expectations inasmuch as the General Court refused to examine the lawfulness of the first decision; and, third, infringement of Article 24(7) of the SSM Regulation.
31 In its rejoinder, the ECB requests that certain documents annexed to the appellant’s reply, namely pleadings submitted by the ECB in other cases and which the appellant produced in the present case without the ECB’s agreement, not be included in the file.
32 In this connection, it is apparent from settled case-law of the Court of Justice that the prevailing principle under EU law is that of the unfettered production of evidence, meaning that the parties have, in principle, the right to rely on any form of evidence in order to prove a particular fact (judgment of 10 September 2020, Hamas v Council, C‑386/19 P, EU:C:2020:691, paragraph 73). In addition, the Court has held that the admissibility of the items of evidence depends ultimately on the weighing up of the interests present, having regard to the objective of guaranteeing the parties’ right to a fair hearing (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 134).
33 In particular, for the purpose of examining a request for the removal from the file of documents covered by Regulation No 1049/2001, that regulation, although not applicable in an action such as that brought by the appellant before the General Court, thus has a certain indicative value for the purpose of the weighing up of interests that is required in order to rule on such a request (judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 132 and the case-law cited).
34 Accordingly, it is apparent from the Court of Justice’s case-law, as regards Article 4 of Regulation No 1049/2001, that even in the situation where the institution concerned relies on the fact that a document concerns an interest protected by an exception to the right of access laid down in that provision, that fact is not sufficient alone to justify the application of that provision and that institution is obliged to explain how disclosure of that document could specifically and actually undermine that interest, irrespective of the fact that that institution has a wide discretion in applying Article 4(1) of Regulation No 1049/2001 (see, to that effect, judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 144 and the case-law cited).
35 In the present case, the ECB does not rely on reasons of confidentiality with respect to the procedural documents concerned, so that, in the light of that case-law, it is not appropriate to grant the ECB’s request seeking that certain documents annexed to the appellant’s reply be held inadmissible. Furthermore, the pleadings in question had been produced by the ECB in cases between it and the same parties as those in the present case, so that the appellant seems to have come into possession of those documents lawfully and it does not seem to be the case that the confidentiality of those documents might need to be protected vis-à-vis a party to the present proceedings. In those circumstances, the fact that the ECB has not given its prior agreement to the use of those documents cannot, in itself, warrant them being held inadmissible in the present proceedings.
36 The first ground of appeal is divided into three parts.
37 By the first part, the appellant submits that the General Court committed an error by rejecting, in paragraphs 334 to 338 of the judgment under appeal, the complaint alleging a failure to notify the decision at issue inasmuch as that decision was solely notified to the appellant’s liquidator and not to its lawyer.
38 In particular, the appellant claims, first, that the General Court distorted the facts by stating, in paragraph 336 of the judgment under appeal, that ‘the [decision at issue] was notified to the [appellant] by email of 13 July 2016, which, moreover, it itself confirmed in paragraph 2 of the application’. The ECB is alleged to have emphasised, in that email, that it was intended to inform the shareholders’ lawyer of the outcome of the administrative review procedure, in order to exclude the very fact that it might be understood as constituting notification of that decision to that lawyer as a representative of the appellant itself. That is allegedly confirmed by the letter accompanying that email of 13 July 2016, which was addressed to the shareholders. The ECB is also claimed to have emphasised in the decision at issue that that decision was addressed to the appellant represented by the liquidator.
39 The appellant also argues that it is incorrect to hold that the application at first instance confirmed the notification of the decision at issue to the appellant, since paragraph 5 of that application unequivocally states that that decision was sent to the appellant’s lawyer specifically in his capacity as the representative of the shareholders and with the sole aim of informing them about the outcome of the administrative review procedure concerning the first decision. The ECB moreover is to have claimed that the shareholders did not have standing to challenge a withdrawal of the appellant’s authorisation and that the appellant was solely represented, in that procedure, by the liquidator.
40 Second, the appellant submits that the statement of the General Court, in paragraph 337 of the judgment under appeal, that a failure to notify the decision at issue does not constitute a procedural defect capable of affecting the legality of that decision is devoid of any useful content. The General Court did not address the crucial issue as to in which case such a defect affects the legality of such a decision and whether or not the present case falls into that category, and therefore did not correctly examine the plea raised by the appellant alleging a failure to notify the decision at issue.
41 Third, the General Court disregarded the case-law of the Court of Justice relied on by the appellant, stemming from the judgment of 8 July 1999, Hoechst v Commission (C‑227/92 P, EU:C:1999:360, paragraph 72), according to which ‘as regards notification of an act, like any other essential procedural requirement, either the irregularity is so grave and manifest that it entails the non-existence of the contested act, or it constitutes a breach of essential procedural requirements that may lead to its annulment.’
42 The appellant claims, fourth, that the failure to notify the decision at issue is so grave and manifest that it entails the non-existence of that decision, or at least, its annulment. The notification by the ECB of that decision solely to the appellant’s liquidator attests to that institution’s position as regards the fact that only the appellant, represented by its liquidator, has standing to contest the withdrawal of its authorisation. The ECB was of the view that the liquidator was in favour of that withdrawal, so that there was no need to involve him in the procedure for the adoption of the decision at issue. Such a situation creates a structural obstacle to the judicial review of decisions of the ECB withdrawing authorisation for access to the activities of a credit institution.
43 Fifth, the appellant points out that even if, after several years of legal proceedings, it has finished by obtaining formal recognition of the power of representation of its lawyer, who was mandated by its board, it has ceased to exist following insolvency proceedings and no longer has any employees or other resources in order to carry out its effective representation.
44 By the second part of its first ground of appeal, the appellant alleges that the General Court incorrectly rejected the complaint as to its lack of representation in the procedure for the adoption of the decision at issue and distorted that complaint by referring, in paragraph 121 of the judgment under appeal, to its lack of ‘adequate representation’ in that procedure, whereas the appellant claimed that it was not involved in that procedure at all.
45 The appellant alleges, in that respect, first, that the General Court, in holding in paragraphs 127 and 128 of the judgment under appeal that it was actually represented throughout the administrative review procedure by the lawyer appointed by its management, distorted the facts, by disregarding, on the one hand, the fact that it was not represented during that procedure, and, on the other hand, the fact that the ECB was of the view that it was not necessary for the appellant to be heard.
46 Moreover, the appellant submits in the reply that the ECB had communicated a list of documents to it which had been manifestly manipulated and that it had rejected any arguments concerning procedural defects made in the light of the ABR opinion. The appellant also claims that the ABR was under the impression that the initiation of liquidation proceedings made a repeal of the decision withdrawing authorisation for access to the activities of a credit institution impossible. It alleges that the ECB has also failed to observe the rule of law, its decision-making being purely political. The appellant also refers to a criminal conviction of the President of the ECB and claims that that institution and the Republic of Latvia are seeking to avoid any litigation before the Courts of the European Union. Furthermore, it argues, banks will no longer be able to seek judicial review of any ECB decisions because they know that the ECB can take control over them at any time by acting in cooperation with the competent national authority, thereby rendering the banks defenceless. Moreover, in the present case, the ECB persisted for many years in seeking without cause to deprive the appellant of any rights to be represented.
47 Second, the appellant claims that the General Court suggests, in paragraph 130 of the judgment under appeal, a solution to a problem which, in paragraphs 127 and 128 of that judgment, it itself had denied existed, thus in essence admitting that it distorted the facts. In paragraph 130 of that judgment, the General Court wrongly claimed not to be able to identify any irregularity in the administrative review procedure, whereas, obviously, it knew which of the appellant’s rights had been infringed, those rights having been infringed by the General Court itself in the proceedings which gave rise to the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809).
48 The ECB, supported by the General Court, is alleged to have deprived the appellant for many years of any right to be represented and systematically to have refused it access to the file, which renders the decision at issue illegal.
49 Third, the appellant claims a distortion of the file and a contradiction between the grounds contained, on the one hand, in paragraphs 127 and 128 of the judgment under appeal and, on the other hand, in paragraph 130 thereof, and submits that, contrary to what is apparent from the latter paragraph, minor infringements of procedural rules must also be examined in order to determine whether they are relevant for the outcome of the present case.
50 By the third part of its first ground of appeal, the appellant alleges that the General Court erroneously rejected, in paragraphs 132 to 140 of the judgment under appeal, its plea concerning infringement of its right to be heard. In particular, the General Court is to have distorted the facts by stating, in paragraph 136 of that judgment, that the appellant had in fact been involved in the administrative review procedure leading to the adoption of the decision at issue and was able freely to comment. The ECB is to have itself stated in that decision that the appellant had not been involved in that procedure and that it was not necessary for it to be involved.
51 The ECB contends, primarily, that the first ground of appeal must be rejected as inadmissible, for the reason that the appellant does not clearly indicate the exact passages of the judgment under appeal where the General Court is to have committed the errors alleged or explain in what those errors consist, contrary to the requirements of the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, and the case-law of the latter. Accordingly, it argues, the first ground of appeal must be dismissed as inadmissible. In the alternative, the ECB contends that the first ground of appeal is unfounded.
52 The Commission contends that the first ground of appeal must be dismissed as in part ineffective and in part unfounded.
53 According to settled case-law of the Court of Justice, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside as well as the legal arguments specifically advanced in support of the appeal (judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 45 and the case-law cited).
54 In the present case, it must be found that the information given in the appeal enables, as regards almost all of the arguments relied on by the appellant in the first ground of appeal, the paragraphs of the judgment under appeal contested by the appellant and its legal arguments to be identified, contrary to what is alleged by the ECB.
55 However, the appellant’s arguments in relation to the fifth complaint, referred to in paragraph 43 of the present judgment, must be rejected at the outset as inadmissible. In those arguments, the appellant does not state the grounds of the judgment under appeal to which the arguments specifically relate or the link which it draws between those arguments and the alleged failure to notify the decision at issue.
56 Next, the appellant’s arguments as regards the binding nature and relevance of the ABR opinion must be rejected as inadmissible, since the appellant does not explain what the link is between, on the one hand, those arguments, and, on the other hand, the alleged distortion of the appellant’s arguments concerning its representation during the administrative review procedure, which forms the subject matter of the second part of the first ground of the present appeal.
57 Lastly, the appellant’s arguments summarised, in essence, in paragraph 46 of the present judgment, concerning, inter alia, the procedural defects which led to the decision at issue, the ECB’s failure to observe the rule of law, an alleged criminal conviction of the President of the ECB and the impossibility for banks to bring judicial review against decisions of the ECB, are characterised by a complete absence of clarity or link with the grounds of the judgment under appeal and are, consequently, manifestly inadmissible.
58 It follows that, having regard to the other arguments put forward by the appellant under the first ground of appeal, that ground of appeal is admissible.
59 The first part of the first ground of appeal concerns paragraphs 334 to 338 of the judgment under appeal, by which the General Court rejected as unfounded the appellant’s complaint alleging that the decision at issue is vitiated by a procedural defect inasmuch as it was notified not to its management but only to its liquidator. In those paragraphs the General Court held, in essence, that that decision was notified to the appellant by email of 13 July 2016, which the appellant had conceded, and that, in any event, a failure to notify the decision at issue does not as such constitute a procedural defect capable of affecting the legality of that decision since such a defect was capable of affecting only the calculation of the starting point of the period for bringing an action.
60 As is apparent from paragraphs 36 to 43 of the present judgment, the appellant relies on five complaints in order to challenge those paragraphs of the judgment under appeal, by which it claims, in essence, that the failure to notify the decision at issue is so grave and manifest that it entails the non-existence of that decision, or at least its annulment.
61 In that regard, it is clear from the file before the Court of Justice that the appellant actually received the decision at issue, which was attached to the email of 13 July 2016, and that it is not disputed that the appellant was able to bring an action against that decision within the prescribed period. Even if the notification of an act constitutes an essential procedural requirement, it must be held that, in the present case, in the light of the Court’s case-law, the alleged failure to notify the decision at issue to the appellant did not deprive the latter of the opportunity to acquaint itself, in good time, with that decision and to assess its validity, such that it was likewise not deprived of the opportunity, which it moreover used, to bring an action against that decision before the General Court (see, to that effect, judgments of 14 July 1972, Geigy v Commission, 52/69, EU:C:1972:73, paragraph 18; of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 55; and of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraph 44).
62 For those same reasons, the General Court’s finding that the decision at issue was notified to the appellant cannot be called into question by the appellant’s arguments that, first, the email of 13 July 2016 was sent to Mr Behrends specifically in his capacity as the shareholders’ representative and, second, it is stated in that decision that the appellant is represented by its liquidator.
63 Moreover, it should be observed that the Court of Justice held, in essence, in paragraph 78 of the 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), that the General Court had erred in law in ruling, in the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), that Mr Behrends, who had brought the action before it on behalf of Trasta Komercbanka, no longer had a properly conferred authority to act on behalf of that company from a person qualified to confer it. It stems from that judgment that Mr Behrends continued to represent the appellant for as long as he had a mandate from the management of the latter and that, therefore, it may be held, in the present case, that he received the notification of the decision at issue also in his capacity as the appellant’s lawyer, despite the fact that he was referred to in that email solely as the representative of the shareholders and not in his capacity also as representative of the appellant.
64 Moreover, contrary to what the appellant submits, the General Court did not fail to reply to its arguments concerning the issue of when a failure to notify affects the legality of the decision concerned. It is clear from paragraph 337 of the judgment under appeal that the General Court held that a failure to notify an act is capable of affecting only the determination of the starting point of the period for bringing an action.
65 The appellant’s argument that it follows from paragraph 337 of the judgment under appeal that the General Court disregarded paragraph 72 of the judgment of 8 July 1999, Hoechst v Commission (C‑227/92 P, EU:C:1999:360), likewise cannot succeed. The Court of Justice held, in paragraph 54 of the judgment of 16 November 2011, Bank Melli Iran v Council (C‑548/09 P, EU:C:2011:735), that, in essence, paragraph 72 of the former judgment had to be understood in the light of the parties’ arguments to which it responded and its context, from which it is apparent that that paragraph refers to the issue of the legal consequences of the lack of authentication of a measure. In any event, in the light of the case-law cited in paragraph 61 of the present judgment, the failure to notify an act cannot automatically entail the inexistence or the annulment of that act.
66 Therefore, the complaints summarised in paragraphs 36 to 42 of the present judgment must be rejected as unfounded.
67 Consequently, the first part of the first ground of appeal must be rejected as in part inadmissible and in part unfounded.
68 The second part of the first ground of appeal concerns the merits of the General Court’s rejection, in paragraphs 121 to 131 of the judgment under appeal, of the third complaint put forward under the first plea in law at first instance, concerning the lack of representation of the appellant in the administrative review procedure.
69 The General Court held, in essence, in paragraphs 127 and 128 of the judgment under appeal, referring to points 1 and 5 of the ABR opinion, that, first, during the administrative review procedure, the appellant (i) was duly represented and (ii) submitted its observations concerning the procedural and substantive infringements allegedly vitiating the first decision, since during that procedure it was represented by the same legal counsel as that who represented it before the General Court. Second, after submitting the request for review referred to in paragraph 15 of the present judgment, the appellant was invited by the ECB to supplement that request. Third, it was informed of its right of access to the file, a right which it exercised. Fourth, it was formally invited to attend a hearing at the ABR, a hearing which it in fact attended. The General Court thus rejected the appellant’s complaint alleging a breach of its rights of the defence and, in particular, of its right to be heard, which, according to the General Court, the appellant did not contest.
70 In that regard, it is apparent from the file before the Court of Justice that the appellant referred, both in the title of the third complaint put forward under the first plea in law at first instance and in the originating application as a whole, to the lack of its ‘appropriate’ representation, claiming that ‘the ECB failed to ensure that [Trasta Komercbanka] was appropriately represented in accordance with the views of the ECB as to the legal position created as a result of the commencement of Latvian liquidation proceedings’. Admittedly, the appellant also stated, under that complaint, that ‘based on the ECB’s opinion on the legal position, [Trasta Komercbanka] was not represented in the procedure under [Article] 24 [of the] SSM Regulation at all’. However, since a total lack of representation can be translated by the expression ‘lack of “appropriate” representation’ used by the appellant itself, the General Court cannot be criticised for having held that the same complaint concerned the lack of adequate representation of the appellant.
71 Consequently, the appellant’s argument concerning the alleged distortion by the General Court of its complaint relating to its representation during the administrative review procedure must be rejected as unfounded.
72 In addition, as regards the appellant’s argument that the General Court distorted the facts by disregarding the contents of the decision at issue which allegedly stated, first, that it was not represented during the administrative review procedure and, second, that the ECB took the view that it was not necessary for it to be heard, it must be held that the appellant does not specify in which passages of that decision the ECB made such findings and that those findings are not apparent from the wording of that decision, so that no distortion of the facts can be alleged against the General Court. The present argument must therefore be rejected as unfounded.
73 In respect of the alleged distortion of the file and the purported contradiction between the grounds contained, on the one hand, in paragraphs 127 and 128 of the judgment under appeal and, on the other hand, in paragraph 130 thereof, and the appellant’s arguments relating to the need to examine minor infringements of procedural rules, it is sufficient to observe that paragraph 130 of the judgment under appeal constitutes a ground thereof stated for the sake of completeness and that, therefore, the complaint directed against that ground must be rejected, as is apparent from settled case-law of the Court of Justice, as ineffective (judgment of 27 April 2023, PL v Commission, C‑537/21 P, EU:C:2023:363, paragraph 60 and the case-law cited).
74 In any event, even if procedural irregularities vitiated the administrative review procedure in relation to the first decision, such irregularities could entail the annulment of the decision at issue only if it were established that, in the absence of such irregularities, that decision might have been substantively different (see, to that effect, judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraph 80), the appellant having, moreover, to demonstrate that such a possibility cannot be totally ruled out (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 106). However, it does not appear from the file in the present case that the appellant has provided evidence to demonstrate that it could not be totally ruled out that the decision at issue would have been substantively different if the appellant had been able to submit its observations in the administrative review procedure concerned (see, by analogy, judgment of 7 September 2023, Versobank v ECB, C‑803/21 P, EU:C:2023:630, paragraphs 48 to 50).
75 As regards the appellant’s complaint that the General Court incorrectly rejected, in paragraphs 132 to 140 of the judgment under appeal, its plea alleging infringement of its right to be heard, it must be stated that the appellant does not submit any arguments substantiating that complaint, so that it must be regarded as inadmissible.
76 As to the complaint alleging that the General Court distorted the facts by finding, in paragraph 136 of the judgment under appeal, that the appellant had in fact been involved in the administrative review procedure, whereas the ECB is itself to have stated in the decision at issue that the appellant had not been involved in that procedure and that it was not necessary for it to be involved, it must be pointed out that it is apparent from paragraph 136 that the General Court in that paragraph reiterated its finding made in paragraph 127 of that judgment, according to which, in essence, the appellant had been able freely to comment in that procedure. In respect of that complaint, not only are the appellant’s explanations insufficient and the evidence non-existent, but the appellant furthermore does not state in which passage of the decision at issue the ECB is to have made such a statement, a statement which moreover is not apparent from the wording of that decision. Consequently, those arguments must also be rejected.
77 In the light of the foregoing considerations, the first ground of appeal must be rejected as in part inadmissible and in part unfounded.
78 The appellant claims that it is apparent from paragraphs 25 to 29 of the judgment under appeal that it suffered a significant disadvantage inasmuch as the General Court held, in those paragraphs, that the general reference it made to its pleadings submitted in Case T‑247/16 was inadmissible, the result of which was that the General Court could no longer examine the legality of the first decision. In the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), the General Court is to have held, in essence, that the decision that there was no longer any need to adjudicate did not cause any harm to the appellant, since the appellant could procure in a later case an advantage identical to that which it could have obtained in the case which gave rise to that order. In doing so, the General Court is to have breached the principle of the protection of legitimate expectations.
79 In that regard, the appellant claims, relying on the judgment of 14 December 2005, Honeywell v Commission (T‑209/01, EU:T:2005:455, paragraphs 62 and 63), which the General Court itself cited in paragraph 26 of the judgment under appeal and which that court is to have misinterpreted, that references to a party’s own submissions may be accepted.
80 The appellant also argues that, if the first decision and the decision at issue are indeed identical, the first decision must also be considered reviewable. Moreover, the decision at issue is legal only if it rectifies defects in the first decision, which it can only do ex nunc.
81 Furthermore, in adopting Article 24 of the SSM Regulation, the EU legislature intended to ensure that the addressee of a decision withdrawing authorisation for access to the activities of a credit institution only needs to challenge the decision adopted at the end of the optional administrative review procedure, in order to obtain a judicial review both of that decision and of the initial decision.
82 The ECB and the Commission contend that the second ground of appeal should be rejected.
83 In paragraphs 25 to 29 of the judgment under appeal, the General Court rejected as inadmissible the general reference made by the appellant in its reply at first instance to the observations made in Case T‑247/16, basing its decision on the case-law resulting from the judgment of 27 April 2017, Germanwings v Commission (T‑375/15, EU:T:2017:289, paragraph 127), according to which, in essence, a general reference to other documents cannot make up for the absence of the essential arguments in law which must appear in the application itself.
84 In that regard, it cannot be held that the General Court has caused the appellant to have any legitimate expectations as regards the possibility that the general reference made by the appellant to documents submitted in another case would be accepted and as regards the possibility of challenging the first decision in a subsequent case concerning the decision at issue.
85 First, the General Court correctly rejected as inadmissible the general reference made by the appellant to documents in the file concerning the validity of the first decision, on the basis of the settled case-law according to which, for an action before the General Court to be admissible, it is necessary, in particular, that the basic matters of law and fact relied on be indicated, at the very least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the proceedings before the General Court in accordance with the first paragraph of Article 53 of that statute, and Article 76(d) of the Rules of Procedure of the General Court, must appear in the application (see, to that effect, judgment of 16 March 2023, GABO:mi v Commission, C‑696/21 P, EU:C:2023:217, paragraph 48 and the case-law cited).
86 Second, the General Court held, in essence, in the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809, paragraphs 59 to 61), that the action against the first act becomes devoid of purpose where that act is replaced, with retroactive effect, by an identical act, inasmuch as the interests of the affected parties are fully protected by the possibility of seeking annulment of that identical act adopted following the administrative review procedure in question. That finding made by the General Court cannot in any way be interpreted as implying an option to direct complaints against the initial decision in the case concerning the legality of the identical decision which replaced it. Those findings mean only that the appellant may rely on complaints, concerning the second decision, which, on account of the identical contents of that decision and the initial decision, could have been raised in proceedings seeking the annulment of such an initial decision, had the latter not been replaced. Thus, any errors of law could be rectified entirely in the proceedings concerning that second decision. Moreover, the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), is not the object of the present action.
87 As regards, furthermore, the appellant’s arguments that the approach adopted by the General Court in paragraphs 25 to 29 of the judgment under appeal, consisting in refusing, in the present case, the references made by the appellant to its pleadings in Case T‑247/16 RENV, is inconsistent with the case-law in paragraphs 62 and 63 of the judgment of 14 December 2005, Honeywell v Commission (T‑209/01, EU:T:2005:455), it must be observed that paragraph 62 of that judgment does not show, contrary to what the appellant submits, that references such as that made by the appellant to its pleadings in Case T‑247/16 RENV must be as a general rule accepted in all cases. Nor does the appellant state why such a reference should be accepted in the present case. Consequently, that line of argument must be rejected as unfounded.
88 Lastly, the appellant’s arguments referred to in paragraphs 80 and 81 of the present judgment must be rejected as inadmissible inasmuch as the appellant does not state which paragraphs of the judgment under appeal are challenged by those arguments.
89 Consequently, the second ground of appeal must be rejected as in part inadmissible and in part unfounded.
90 By its third ground of appeal, the appellant submits that the General Court erroneously rejected its plea alleging infringement of Article 24(7) of the SSM Regulation, by misinterpreting that provision in paragraphs 96 to 114 of the judgment under appeal to the effect that a decision issued following the administrative review procedure has retroactive effect. It claims that there is nothing in the text of that provision or any related provision that supports that interpretation. Specifically, contrary to the General Court’s statement in paragraph 108 of that judgment, such an interpretation is not supported by Article 24(8) of that regulation. In addition, the retroactive withdrawal of credit institutions’ authorisations is irreconcilable with Latvian law and the law of other Member States, in that it would modify the substantive prudential law.
91 In addition, an interpretation of that provision to the effect that the withdrawal of decisions of the ECB has retroactive effect is illegal inasmuch as it is inconsistent with Article 263 TFEU. Such an interpretation would lead to a situation in which acts of the ECB are reviewable under that provision only under certain conditions, namely only as long as they are not replaced with retroactive effect by the ECB following an administrative review procedure. That interpretation would also have the effect that decisions of the ECB would no longer be subject to judicial review inasmuch as, at the time decisions of that institution were adopted following the administrative review procedure, the deadlines for challenging those decisions would already have expired. The retroactive effect of a decision of the ECB cannot be taken into account unless such effect is specified in that decision itself.
92 Furthermore, the appellant argues that the ECB and the Commission have conceded, in other cases, that the decision at issue does not take effect ex tunc.
93 The ECB contends, primarily, that the third ground of appeal should be rejected as inadmissible since, first, it constitutes a new plea in law and, second, in any event, the appellant does not clearly indicate the legal reasoning in support of that ground of appeal. Moreover, the appellant argued before the General Court that the decision at issue had to take effect ex tunc.
94 In the alternative, the ECB contends that that ground of appeal is unfounded. Contrary to what the appellant submits, first, the General Court correctly examined the legality of the decision at issue under Article 24 of the SSM Regulation and held that that decision, the content of which was identical to the first decision, could only replace the first decision with retroactive effect. Second, as regards the appellant’s argument that the retroactive withdrawal of a credit institution’s authorisation would infringe Article 127(6) TFEU because it would constitute a modification of prudential supervisory law, the ECB observes that, in the judgment under appeal, the General Court refers rather to the applicability rationae temporis of an ECB act without amending the applicable legal framework. Third, as regards the appellant’s argument that an interpretation of Article 24(7) of the SSM Regulation which authorises the adoption of a decision withdrawing such an authorisation with retroactive effect infringes the fifth paragraph of Article 263 TFEU, the ECB submits that the retroactive effect of a decision adopted after a review carried out by the ABR does not introduce any additional condition for seeking the annulment of that decision, the need to initiate a second action for annulment to challenge such a decision not being related to its retroactive effect. Fourth, the addressee of a decision adopted following a review carried out by the ABR is not deprived of the right to bring an action against that decision for the sole reason that that decision may produce retroactive effects. Fifth, the appellant wrongly considers that the deadline for bringing an action directed against such a decision starts to run at the date on which that decision produces effects, whereas that deadline actually starts to run from the publication of that decision, or its notification to the applicant or, in the absence thereof, the day on which it came to the knowledge of the latter, in accordance with the sixth paragraph of Article 263 TFEU.
95 The ECB claims, in addition, relying, in particular, on the judgment of 11 December 2008, Commission v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraphs 104 and 105), that, in any event, if the Court of Justice were to find that the General Court’s findings as to the effects rationae temporis of the decision at issue are incorrect, the provision of that decision which concerns those effects is severable from the other elements of that decision and, therefore, the alleged error could not lead to the annulment of the decision at issue in its entirety.
96 The Commission contends that the appellant’s arguments concerning paragraphs 107 and 108 of the judgment under appeal are inadmissible. According to that institution, even though, in paragraphs 104 to 109 of the judgment under appeal, the General Court cited paragraphs 47 to 52 of the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), the present appeal cannot be used to contest directly or indirectly that order, which the appellant did not appeal.
97 Moreover, the appellant’s argument concerning the retroactive withdrawal of the authorisation concerned is unfounded, since it is apparent from paragraph 106 of the judgment under appeal that that withdrawal, effected by the first decision, remained continuously in effect as of the date of notification of that decision.
98 The Commission also submits that the appellant’s argument that the General Court committed an error in holding that the decision at issue produced effects ex tunc, inasmuch as, consequently, the legality of the first decision could no longer be reviewed under Article 263 TFEU, is manifestly inadmissible, since it seeks to challenge the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), against which the appellant did not bring an appeal. In the alternative, the Commission contends that that argument is unfounded, since the first decision was replaced in its entirety by the decision at issue, which was identical in content. The appellant’s interests are therefore still fully protected by the possibility of judicial review of the latter decision. In any event, the General Court correctly relied in the judgment under appeal on the effect ex tunc of the decision at issue, which is apparent from the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), which has become final.
99 The ECB takes the view, in essence, that the third ground of appeal constitutes a new plea, since before the General Court the appellant claimed that the decision at issue had to take effect ex tunc, whereas in its appeal in the present case it claims that that decision must take effect ex nunc. The Commission, for its part, contends that the appellant’s arguments challenging paragraphs 107 and 108 of the judgment under appeal are inadmissible since, by those arguments, the appellant is in fact seeking to challenge the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), cited by the General Court in those paragraphs.
100 In that regard, it is sufficient to recall that it is settled case-law that a party is entitled to lodge an appeal relying, before the Court of Justice, on pleas arising from the judgment under appeal itself which seek to criticise, in law, its merits (judgment of 19 June 2014, FLS Plast v Commission, C‑243/12 P, EU:C:2014:2006, paragraph 48 and the case-law cited), provided that it raises complaints which do not involve a change to the subject matter of the proceedings before the General Court (judgment of 26 September 2013, France v Commission, C‑115/12 P, EU:C:2013:596, paragraph 74).
101 In the present case, it must be noted that the third ground of appeal, in so far as it seeks, in essence, to challenge the General Court’s assessment that the decision at issue takes effect ex tunc, has its origin in the judgment under appeal itself and must therefore be considered admissible. That cannot be called into question by the fact that the appellant allegedly submitted before the General Court a line of argument different from that relied on in the present ground of appeal.
102 In addition, even if paragraphs 107 and 108 of the judgment under appeal cite the order of 7 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), they concern the General Court’s findings regarding the entry into force of the decision at issue, findings which are challenged specifically in the third ground of the present appeal. The appellant’s complaints concerning those paragraphs therefore seek, contrary to what is contended by the Commission, to challenge the grounds of the judgment under appeal and not to call into question the lawfulness of the first decision, which was the subject matter of the order of 7 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809).
103 It must also be noted that, contrary to what is maintained by the ECB, the appellant clearly presents the legal reasoning supporting that ground of appeal.
104 It follows that the third ground of appeal is admissible.
105 By its third ground of appeal, the appellant claims, in essence, that nothing in the formulation of Article 24(7) of the SSM Regulation or any related provision bears out the interpretation accepted by the General Court that the decision at issue has a retroactive effect and that, contrary to what was stated by the General Court in paragraph 108 of the judgment under appeal, that interpretation is not confirmed by Article 24(8) of that regulation.
106 The General Court held, in paragraphs 105, 106 and 108 to 110 of the judgment under appeal that, in essence, the decision at issue took effect ex tunc. It found, in paragraph 105 of that judgment, that Article 24(7) of the SSM Regulation establishes an obligation on the part of the ECB to adopt a decision, following the review, which is retroactive to the time at which the initial decision took effect, whatever the outcome of that review. It held, in particular, so far as concerns a decision identical to the initial decision, that such a decision can only take effect ex tunc, since it is not possible to withdraw the same authorisation a second time. In the view of the General Court, that interpretation is necessarily confirmed, inter alia, by Article 24(8) of the SSM Regulation, according to which requests for administrative review pursuant to Article 24 of that regulation are not to have suspensory effect. Thus, the replacement of the initial decision by an identical or amended decision at the end of the administrative review procedure results in the definitive disappearance of the initial decision from the legal order, that decision being replaced with effect as of the date on which the withdrawal of the authorisation was to take effect under the initial decision.
107 In that regard, the Court of Justice has held that, while it is indeed clear from the wording of Article 24(7) of the SSM Regulation that where the ECB finds, following an administrative review procedure, that the decision under review should not be amended, it is to abrogate that decision and replace it with a decision of identical content, it cannot be inferred from the above that abrogating the former decision and replacing it with the latter has retroactive effect comparable to that of the annulment of an act of an EU institution by an EU Court (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 43).
108 As is apparent from the case-law of the Court of Justice, the abrogation of an act of an EU institution does not amount to recognition of its illegality and takes effect ex nunc, unlike a judgment annulling an act, by virtue of which the act annulled is removed retroactively from the EU legal order and is deemed never to have existed. In that regard, the fact that that abrogation was followed by the replacement of the initial act by a new act cannot give the latter retroactive effect (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 44 and the case-law cited).
109 It follows, inter alia, from Article 24(7) of the SSM Regulation that the new decision abrogates the initial decision and replaces it, with identical content. As the Court has already held, since the initial decision had the effect of withdrawing the authorisation of a credit institution, the new decision has the effect of extending the effects of the initial decision, without removing those already produced by it (judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraph 45). The result is that the initial decision is simply abrogated by the new decision, without being retroactively eliminated from the EU legal order.
110 In the present case, it is the first decision which had the effect of withdrawing the authorisation which had been granted to the appellant for access to the activities of a credit institution. In addition, since, in principle, in accordance with Article 24(8) of the SSM Regulation, the request for review of an initial decision does not have suspensory effect, the first decision continued to produce its effects until the decision at issue took effect, namely when it was notified to the appellant. It was therefore only from the point when the appellant was notified that the latter decision abrogated and replaced the first decision (see, by analogy, judgment of 12 December 2024, Nemea Bank v ECB and Others, C‑181/22 P, EU:C:2024:1020, paragraphs 46 and 47).
111 It follows that the General Court erred in finding, in paragraph 105 of the judgment under appeal, that Article 24(7) of the SSM Regulation establishes an obligation on the part of the ECB to adopt a decision, following the administrative review procedure, which is retroactive to the time at which the initial decision took effect. The findings made by the General Court in paragraphs 106 and 108 to 110 of the judgment under appeal, summarised in paragraph 106 of the present judgment, are also vitiated by an error of law.
112 However, according to settled case-law of the Court of Justice, if the grounds of a decision of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that decision, and a substitution of grounds must be made (judgment of 22 September 2016, Pensa Pharma v EUIPO, C‑442/15 P, EU:C:2016:720, paragraph 51 and the case-law cited).
113 It must be stated that that applies in the present case, since the error of law noted in paragraph 111 of the present judgment had no impact on the operative part of the judgment under appeal. The General Court observed, in paragraph 101 of the judgment under appeal, that the appellant’s argument was based, inter alia, on the incorrect premiss that the ABR had found that the first decision was vitiated by a failure to state reasons. In paragraphs 102 and 103 of that judgment, it stated why, first, that premiss was incorrect and, second, the appellant could not profitably maintain that the decision at issue was vitiated by the same illegalities. Those other grounds have not been validly challenged in the present appeal and are sufficient, in themselves, to warrant the dismissal of the appellant’s application for annulment of the decision at issue.
114 It follows that the third ground of appeal must be rejected as ineffective and, accordingly, the appeal must be dismissed in its entirety.
115 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
116 Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
117 In the present case, since Trasta Komercbanka has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the ECB, in accordance with the form of order sought by the latter.
118 In addition, Article 140(1) of the Rules of Procedure of the Court, which is also applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs. 1. Dismisses the appeal; 2. Orders Trasta Komercbanka AS to bear its own costs and to pay those incurred by the European Central Bank (ECB); 3. Orders the European Commission to bear its own costs.