1 By its appeal, PNB Banka AS asks the Court of Justice to set aside the judgment of the General Court of the European Union of 7 December 2022, PNB Banka v ECB (T‑230/20, EU:T:2022:782; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the European Central Bank (ECB) of 17 February 2020, withdrawing its authorisation as a credit institution (‘the decision at issue’).
2 Article 4(1) 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) 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: …’
3 Article 14(5) of that regulation provides: ‘Subject to paragraph 6, the ECB may withdraw the authorisation in the cases set out in relevant Union law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such national competent authority. These consultations shall in particular ensure that before taking decisions regarding withdrawal, the ECB allows sufficient time for the national authorities to decide on the necessary remedial actions, including possible resolution measures, and takes these into account. Where the national competent authority which has proposed the authorisation in accordance with paragraph 1 considers that the authorisation must be withdrawn in accordance with the relevant national law, it shall submit a proposal to the ECB to that end. In that case, the ECB shall take a decision on the proposed withdrawal taking full account of the justification for withdrawal put forward by the national competent authority.’
4 The background to the dispute is set out in paragraphs 2 to 11 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
5 By letter of 1 March 2019, the ECB notified PNB Banka, a credit institution governed by Latvian law, that it had decided to classify it as a significant entity subject to its direct prudential supervision.
6 On 15 August 2019, the ECB concluded that PNB Banka was failing or likely to fail. On the same date, the Single Resolution Board (SRB) decided not to adopt a resolution scheme in respect of PNB Banka.
7 On 22 August 2019, the Finanšu un kapitāla tirgus komisija (Financial and Capital Market Commission, Latvia; ‘the FCMC’) requested the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District), Latvia) to declare PNB Banka insolvent.
8 On 12 September 2019, that court declared PNB Banka insolvent and appointed an insolvency administrator to deal with the insolvency proceedings (‘the insolvency administrator’), to whom it transferred all the powers of PNB Banka and of its board of directors. That court rejected the request of PNB Banka’s board of directors to maintain its power to represent PNB Banka in the context of the action against the ECB’s assessment that PNB Banka was failing or likely to fail, against the SRB’s decision not to adopt a resolution scheme in respect of PNB Banka and against the FCMC’s decision to initiate insolvency proceedings.
9 On the same date, the FCMC requested the ECB to withdraw PNB Banka’s authorisation.
10 On 28 October 2019, the ECB sent to the insolvency administrator a draft decision to withdraw PNB Banka’s authorisation. Following the delivery 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), the ECB also called on the lawyer authorised by PNB Banka’s board of directors to adopt a position on that draft decision.
11 By letter of 18 November 2019, that lawyer requested the ECB (i) to extend, for the second time, the deadline given to him to submit his observations on that draft decision, and (ii) to instruct the insolvency administrator to grant him access to PNB Banka’s premises, information, members of staff and financial resources.
12 By letter of 19 November 2019, the ECB stated that it was unable to comply with that lawyer’s request that the insolvency administrator be instructed to grant him access to PNB Banka’s premises, information, members of staff and resources, since the purpose of the request fell outside its scope of competence. By contrast, the extension of the deadline requested by that lawyer was granted and the ECB allowed him to have access to the supervisory file.
13 On 17 February 2020, the ECB adopted the decision at issue, by which it withdrew the authorisation granted to PNB Banka, with effect from 18 February 2020.
14 By application lodged at the Registry of the General Court on 27 April 2020, PNB Banka brought an action for annulment of the decision at issue.
15 It relied on two pleas in support of its action. The first plea alleged a failure to state reasons and procedural defects. The second plea alleged errors vitiating the validity of the decision at issue.
16 By the judgment under appeal, the General Court dismissed the action brought by PNB Banka.
17 In the first place, in paragraphs 26 to 39 of that judgment, the General Court rejected the first and seventh parts of the first plea, those parts having alleged, in essence, a failure to state reasons; the General Court held, inter alia, in paragraph 36 of that judgment, that the grounds of the decision at issue enabled PNB Banka to ascertain the reasons for that decision in order to assess whether it was well founded and enabled the General Court to exercise its power of review.
18 In the second place, in paragraphs 40 to 84 of that judgment, the General Court rejected the second to fifth parts of the first plea, those parts having alleged, respectively, infringement of Article 14(5) of Regulation No 1024/2013, procedural defects relating to the adoption of the proposal by the FCMC for the withdrawal of authorisation, procedural defects relating to the adoption of the decision at issue and a lack of relevance of that decision.
19 In the third place, in paragraphs 85 to 99 of the judgment under appeal, the General Court rejected the sixth and eighth parts of the first plea, those parts having alleged interference, by the ECB, with the representation of PNB Banka and alleging infringement of the right to be heard.
20 In the fourth place, in paragraphs 100 to 133 of that judgment, the General Court rejected the second plea.
21 By its appeal, PNB Banka claims that the Court of Justice should: - set aside the judgment under appeal; - annul the decision at issue; - order the ECB to pay the costs of both sets of proceedings; and - if the Court of Justice is not in a position to rule on the action at first instance, refer the case back to the General Court.
22 The ECB contends that the Court of Justice should: - order PNB Banka’s representative to certify that the power of attorney under which he acts has not been revoked; - dismiss the appeal as inadmissible or, in the alternative, as unfounded; and - order PNB Banka to pay the costs.
23 By decision of the President of the Court of 27 June 2023, the present proceedings were stayed pending the final decision in Cases C‑750/21 P and C‑256/22 P. Following the delivery of the judgments of 8 February 2024, Pilatus Bank v ECB (C‑750/21 P, EU:C:2024:124), and of 8 February 2024, Pilatus Bank v ECB (C‑256/22 P, EU:C:2024:125), the proceedings were resumed by decision of the President of the Court of 21 February 2024.
24 By decision of the President of the Court of 21 February 2024, taken on the basis of Article 119(2) of the Rules of Procedure of the Court, PNB Banka’s representative was requested to produce a power of attorney authorising him to represent PNB Banka in the present proceedings.
25 On 2 April 2024, PNB Banka lodged a reply containing clarifications and new documents as regards the existence of a power of attorney authorising him to represent PNB Banka in the present proceedings.
26 PNB Banka relies on two grounds in support of its appeal. The first ground of appeal alleges errors made by the General Court in the examination of whether its procedural rights were respected, first of all, in the context of the procedure conducted by the FCMC, next, in the context of the procedure conducted by the ECB before the delivery 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), and, lastly, in the context of the procedure conducted by the ECB after the delivery of that judgment. The second ground of appeal alleges infringement of PNB Banka’s procedural rights in the proceedings before the General Court.
27 As a preliminary point, the ECB contends that the appeal is inadmissible.
28 In that regard, in the present case, the Court nevertheless considers it appropriate to rule from the outset on the merits of the case (see, by analogy, judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 35 and the case-law cited).
29 By the first part of the first ground of appeal, PNB Banka submits that the General Court erred in finding, in paragraphs 33 and 34 of the judgment under appeal, that the FCMC’s proposal that PNB Banka’s authorisation be withdrawn constituted the starting point of the procedure which led to the adoption of the decision at issue. In PNB Banka’s view, the General Court thus wrongly excluded from its analysis the most important part of that procedure, namely the FCMC’s examination of PNB Banka’s situation.
30 According to PNB Banka, that error led the General Court, first, to disregard PNB Banka’s lack of participation and representation in the procedure conducted by the FCMC, which infringed its rights, in particular the rights of the defence. It argues that the fact that there is no possibility of judicial review of that procedure at national level, in accordance with the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), makes it necessary for the Courts of the European Union to carry out a judicial review of that procedure.
31 Second, it submits that that error led the General Court to reject, incorrectly, PNB Banka’s complaint relating to the inadequacy of the statement of reasons for the decision at issue.
32 The ECB considers that the first part of the first ground of appeal must be rejected.
33 As regards, in the first place, the error allegedly made by the General Court in paragraphs 33 and 34 of the judgment under appeal, it must be held that those paragraphs fall within the scope of the General Court’s analysis of PNB Banka’s complaints alleging that the decision at issue is vitiated by a failure to state reasons, in particular because of the lack of information regarding the procedure which preceded the adoption of the FCMC’s proposal that PNB Banka’s authorisation be withdrawn.
34 In that regard, it must be noted that, in paragraph 33 of the judgment under appeal, after finding, in the third sentence of that paragraph, that the FCMC’s proposal that PNB Banka’s authorisation be withdrawn constituted the starting point of the procedure, conducted by the ECB, for the withdrawal of authorisation, the General Court stated, in the fourth and fifth sentences of that paragraph, that, in any event, Part 2 of the decision at issue referred to procedural elements prior to that proposal.
35 The General Court also noted, in paragraph 34 of that judgment, that Part 3.1 of that decision included the grounds for withdrawal of the authorisation and its legal bases; it also stated, in paragraph 35 of that judgment, that, in Part 3.2 of that decision, the ECB had examined the proportionality of the withdrawal of authorisation.
36 It was in that context that, in paragraphs 36 and 38 of that judgment, the General Court found that the decision at issue was not vitiated by a failure to state reasons.
37 Thus, even if the General Court had been wrong to find, in the third sentence of paragraph 33 of the judgment under appeal, that the FCMC’s proposal that PNB Banka’s authorisation be withdrawn constituted the starting point of the procedure, conducted by the ECB, for the withdrawal of authorisation, such an error cannot call into question the General Court’s assessment that the decision at issue was not vitiated by a failure to state reasons and, therefore, cannot call into question the operative part of that judgment.
38 It follows that PNB Banka’s line of argument relating to the error allegedly made by the General Court in paragraphs 33 and 34 of that judgment must be rejected as ineffective (see, to that effect, judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 263 and the case-law cited).
39 In the second place, as regards PNB Banka’s line of argument relating to the General Court’s failure to examine the alleged infringement of its procedural rights in the context of the procedure conducted by the FCMC, it must be noted that the General Court examined, in paragraphs 61 to 66 of that judgment, the arguments which PNB Banka raised at first instance alleging infringement of its procedural rights in the context of that procedure, with the result that that line of argument must be rejected as unfounded.
40 It follows that the first part of the first ground of appeal must be rejected.
41 By the second part of the first ground of appeal, PNB Banka submits, in the first place, that the General Court erred in examining whether the ECB had complied with 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), and whether that institution had intended to close the procedure pending before it before that judgment was delivered. In so doing, the General Court departed from the core of its line of argument.
42 In the second place, PNB Banka argues the General Court erred in not finding that the decision at issue had been the subject of a non-objection procedure before the Governing Council of the ECB before the delivery 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).
43 In the third place, PNB Banka submits that the failure to mention that procedure and the course of the latter in the decision at issue vitiates that decision by a failure to state reasons.
44 In the fourth place, PNB Banka claims that the General Court erred in failing to examine, in the judgment under appeal, whether there was a legal basis for interrupting that procedure, even though PNB Banka had highlighted that element in its application at first instance.
45 The ECB contends that the second part of the first ground of appeal should be rejected.
46 In the first place, it is clear from the application at first instance that PNB Banka submitted before the General Court that the ECB’s approach in the procedure which led to the adoption of the decision at issue was incompatible with 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), and that the ECB had attempted to close the procedure and to withdraw its authorisation before that judgment was delivered. PNB Banka cannot therefore validly criticise the General Court for having examined those complaints.
47 Consequently, PNB Banka’s line of argument relating to the error allegedly made by the General Court in examining those complaints must be rejected as unfounded.
48 In the second place, as regards the argument that the General Court erred in not finding that the decision at issue had been the subject of a non-objection procedure before the Governing Council of the ECB before the delivery 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), PNB Banka has not set out the reasons why the General Court should have made such a finding of fact, and therefore that argument must be rejected as inadmissible (see, to that effect, judgment of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 75 and the case-law cited).
49 In the third place, PNB Banka’s argument relating to the failure to state reasons for the decision at issue must be rejected as unfounded, since the statement of information relating to the non-objection procedure before the Governing Council of the ECB is in no way necessary to enable PNB Banka to ascertain the reasons for that decision, and to assess its merits, and to enable the Courts of the European Union to exercise their power of review.
50 The same is true as regards, in the fourth place, PNB Banka’s argument that the General Court wrongly failed to examine, in the judgment under appeal, whether there was a legal basis for interrupting that procedure, since PNB Banka has not established that it raised that issue in its application at first instance.
51 In those circumstances, the second part of the first ground of appeal must be rejected.
52 PNB Banka submits, in the first place, that, following the delivery 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), the ECB did not remedy the procedural errors which it had made before the delivery of that judgment. In PNB Banka’s view, the ECB should have rejected the FCMC’s initial proposal and a new procedure should have been organised.
53 In the second place, PNB Banka argues that the General Court should have held that it is for the competent national authority to withdraw the authorisation where national law is applied. In that context, that authority would act in accordance with the requests or, as the case may be, the instructions of the ECB. The General Court did not, in PNB Banka’s view, take sufficient account of the fact that the ECB should be accountable for the integrity of the procedure before it, irrespective of the powers which it enjoys in respect of the insolvency administrator. In particular, the General Court was not sufficiently critical as regards the issue of PNB Banka’s representation in that procedure.
54 In the third place, PNB Banka submits that the General Court did not examine the ECB’s approach of finding that PNB Banka was represented both by its board of directors and by the insolvency administrator.
55 In the fourth place, PNB Banka argues that the General Court erred in not considering as problematic, from a procedural perspective, the fact that only that insolvency administrator had informed the ECB of PNB Banka’s situation and the foreseeable development thereof, as well as the fact that PNB Banka’s board of directors was not informed of the communications that had taken place in that regard between that insolvency administrator and the ECB.
56 Furthermore, there is, in PNB Banka’s view, no legal or practical reason justifying the ECB’s refusal to forward to PNB Banka’s board of directors the communications which the ECB had had with the insolvency administrator.
57 The ECB contends that the third part of the first ground of appeal must be rejected.
58 It must be recalled, in the first place, that it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as from Article 168(1)(d) of the Rules of Procedure, that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see order of 26 April 1993, Kupka-Floridi v ESC, C‑244/92 P, EU:C:1993:152, paragraphs 8 and 9, and judgments of 16 December 2020, Council v K. Chrysostomides & Co. and Others, C‑597/18 P, C‑598/18 P, C‑603/18 P and C‑604/18 P, EU:C:2020:1028, paragraph 127, and of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 75).
59 Thus, an appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the argument is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible (see, to that effect, judgment of 4 October 2024, thyssenkrupp v Commission, C‑581/22 P, EU:C:2024:821, paragraph 58 and the case-law cited).
60 In the present case, it must be held that, by its line of argument relating to the errors allegedly made by the ECB and relating to the errors allegedly made by the General Court as regards the respective roles of the competent national authority and of the ECB in the context of the procedure which led to the withdrawal of PNB Banka’s authorisation, PNB Banka has neither criticised the General Court’s analysis of the pleas which it raised in its application at first instance, nor has it provided information to identify the paragraphs of the judgment under appeal to which that line of argument relates. That line of argument must therefore be rejected as inadmissible.
61 The same is true of the line of argument in respect of the information sent by the insolvency administrator to the ECB and in respect of the alleged failure to notify PNB Banka of the communications in that regard, since PNB Banka has failed to set out clearly and precisely the errors which the General Court allegedly made in that regard.
62 In the second place, PNB Banka’s line of argument that the General Court did not examine the fact that the ECB found, following the delivery 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 PNB Banka was represented both by its board of directors and by the insolvency administrator must be rejected as unfounded. The General Court rejected PNB Banka’s argument based on that fact by holding, in paragraph 98 of the judgment under appeal, that 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) in no way precluded the ECB from also hearing the insolvency administrator regarding the draft decision to withdraw PNB Banka’s authorisation.
63 It follows that the third part of the first ground of appeal must be rejected, as must, therefore, that ground of appeal in its entirety.
64 PNB Banka submits that the General Court erred in confining itself to making findings relating to the actions incumbent on the Latvian courts in order to ensure a certain level of judicial protection. In its view, the General Court thus went against 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), from which it follows that judicial protection must not be purely theoretical and illusory.
65 According to PNB Banka, it is also difficult to identify the addressee of the criticisms made by the General Court in paragraph 96 of the judgment under appeal, in which it found that PNB Banka did not claim to have brought appropriate proceedings in Latvia against the insolvency administrator. Such a finding is based on the idea that the Republic of Latvia ensures a certain level of judicial protection. However, PNB Banka argues that that is not the case because, under Latvian law, only the insolvency administrator is authorised to represent PNB Banka.
66 PNB Banka also asks the Court of Justice to take account of its special responsibility for ensuring that the law is observed, in accordance with the judgments of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), and of 15 May 2019, Achema and Others (C‑706/17, EU:C:2019:407).
67 In PNB Banka’s view, it follows from the approach adopted by the General Court that decisions on prudential matters, such as license withdrawals, enjoy structural immunity from any effective judicial review, since a judicial review would require the effective representation of the applicant.
68 The ECB contends that the second ground of appeal must be rejected.
69 It should be noted that the only element of the judgment under appeal which is specifically challenged in the second ground of appeal is a finding, set out in paragraph 96 of that judgment, which appears in the part of that judgment relating to the examination of PNB Banka’s line of argument alleging that the ECB infringed its rights of defence. Since PNB Banka does not dispute the conclusion reached by the General Court in that examination, in paragraph 97 of that judgment, namely that PNB Banka’s rights of defence were not infringed by the ECB, PNB Banka’s line of argument relating to paragraph 96 of that judgment must be rejected as ineffective.
70 As to the remainder, the line of argument put forward by PNB Banka in the present ground of appeal merely sets out claims formulated in general terms, relating to the issue of its representation and to the right to effective judicial protection, without identifying the alleged procedural errors made by the General Court and without establishing a link between the alleged difficulties of representation referred to and the proceedings before the General Court. In particular, PNB Banka has not in any way specified how its criticisms of Latvian law are such as to justify the setting aside of the judgment under appeal.
71 It must therefore be held that that line of argument is not sufficiently clear and precise to enable the Court to carry out its review of legality, with the result that it must be rejected as inadmissible, in accordance with the case-law cited in paragraphs 58 and 59 of the present judgment.
72 It follows that the second ground of appeal must be rejected as, in part, ineffective, and, in part, inadmissible.
73 It follows from all of the foregoing that, since none of the grounds raised in support of the appeal has been upheld, the appeal must be dismissed in its entirety, without it being necessary to rule on the pleas of inadmissibility raised by the ECB (see judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52, and of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 193).
74 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
75 Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
76 Since the ECB has applied for costs and PNB Banka has been unsuccessful, PNB Banka must be ordered to bear its own costs and to pay those incurred by the ECB. 1. Dismisses the appeal; 2. Orders PNB Banka AS to bear its own costs and to pay those incurred by the European Central Bank (ECB).