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‑330/19, EU:T:2022:775; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the European Central Bank (ECB), notified by letter of 21 March 2019, to oppose the acquisition of qualifying holdings in B (‘the decision at issue’).
2 According to Article 15 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): ‘1. Without prejudice to the exemptions provided for in point (c) of Article 4(1), any notification of an acquisition of a qualifying holding in a credit institution established in a participating Member State or any related information shall be introduced with the national competent authorities of the Member State where the credit institution is established in accordance with the requirements set out in relevant national law based on the acts referred to in the first subparagraph of Article 4(3). 2. The national competent authority shall assess the proposed acquisition, and shall forward the notification and a proposal for a decision to oppose or not to oppose the acquisition, based on the criteria set out in the acts referred to in the first subparagraph of Article 4(3), to the ECB, at least ten working days before the expiry of the relevant assessment period as defined by relevant Union law, and shall assist the ECB in accordance with Article 6. 3. The ECB shall decide whether to oppose the acquisition on the basis of the assessment criteria set out in relevant Union law and in accordance with the procedure and within the assessment periods set out therein.’
3 The background to the dispute is set out in paragraphs 2 to 52 of the judgment under appeal. For the purposes of the present proceedings, it may be summarised as follows.
4 On 1 October 2018, PNB Banka, which, on that date, was a ‘less significant’ credit institution within the meaning of Regulation No 1024/2013 established in Latvia, notified the Finanšu un kapitāla tirgus komisija (Financial and Capital Market Commission, Latvia; ‘the FCMC’) of its intention to acquire directly a qualifying holding in B, another Latvian credit institution.
5 On 1 and 19 October 2018, CR and CT, respectively, in their capacity as shareholders of PNB Banka, notified the FCMC of their intention each to acquire indirectly a qualifying holding in B.
6 On 1 March 2019, the FCMC submitted to the ECB a proposal for a decision, on the basis of Article 15(2) of Regulation No 1024/2013, to oppose that acquisition.
7 By letter of 21 March 2019, the ECB notified the proposed acquirers in respect of the decision at issue, by which it opposed the proposed acquisition.
8 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.
9 On 22 August 2019, the FCMC requested the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District), Latvia) to declare PNB Banka insolvent.
10 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.
11 On the same date, the FCMC requested the ECB to withdraw PNB Banka’s authorisation.
12 On 17 February 2020, the ECB withdrew that authorisation, with effect from 18 February 2020.
13 By application lodged at the Registry of the General Court on 31 May 2019, PNB Banka and two of its shareholders, CR and CT, brought an action for annulment of the decision at issue.
14 They relied on eight pleas in support of their action. The first two pleas alleged procedural defects. The third and fourth pleas alleged infringement of, respectively, Article 23 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), and the principle of proportionality. The fifth plea alleged an error of law as to the extent of the ECB’s competence. The sixth plea alleged an error as to the facts. The seventh plea alleged infringement of the principles of the protection of legitimate expectations and legal certainty. The eighth plea alleged a failure to take into account the responsibility of the ECB and of the FCMC for the loss of confidence in the regulatory process.
15 By decision of the President of the Fourth Chamber of the General Court of 28 October 2019, the European Commission was granted leave to intervene in support of the form of order sought by the ECB.
16 By letter of 8 July 2021, the representative of PNB Banka, CR and CT informed the General Court that he no longer represented CR and CT. By order of 21 December 2021, the General Court decided that there was no longer any need to adjudicate on the action brought by CR and CT.
17 By the judgment under appeal, the General Court dismissed the action brought by PNB Banka.
18 First, in paragraphs 67 to 75 of that judgment, the General Court rejected PNB Banka’s requests, made on 28 April and 28 June 2021, for a stay of proceedings; those requests were based on an alleged refusal by the insolvency administrator to grant, to the lawyer authorised by PNB Banka’s board of directors, access to PNB Banka’s premises, information and financial resources.
19 Second, in paragraphs 88 to 244 of that judgment, the General Court rejected all the pleas raised by PNB Banka.
20 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 bear 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.
21 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.
22 The Commission contends that the Court of Justice should: - dismiss the appeal as manifestly inadmissible; 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 In support of its appeal, PNB Banka relies on a single ground, alleging infringement of its procedural rights.
27 It states that its appeal relates mainly to the difficulties concerning its representation by a lawyer in the proceedings before the General Court.
28 PNB Banka submits that its appeal was drawn up under very difficult circumstances and that it is based primarily on the hope that the Courts of the European Union will reconsider their position in the light of the current situation in Latvia. It states, in that regard, that the Republic of Latvia firmly rejects any argument that a person other than the insolvency administrator may represent PNB Banka, and claims that that Member State exerts significant pressure on PNB Banka’s representatives other than the insolvency administrator.
29 PNB Banka submits that the judgment under appeal is based on the finding that it did not initiate 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.
30 PNB Banka argues 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 and 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
31 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).
32 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.
33 The ECB and the Commission contend that PNB Banka’s single ground of appeal must be rejected as inadmissible. The ECB adds that that ground of appeal is, in any event, unfounded.
34 It should be borne in mind that, in accordance with Article 169(1) of the Rules of Procedure, an appeal may only seek to have set aside, in whole or in part, the decision of the General Court as set out in the operative part of that decision.
35 Furthermore, 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 (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).
36 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. The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the judgment under appeal which may be vitiated by an error of law must be dismissed as clearly 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).
37 The Court has also repeatedly held that a mere abstract statement of the grounds in the application does not alone satisfy the requirements laid down in Article 21 of the Statute of the Court of Justice of the European Union and in Article 169 of the Rules of Procedure (order of 5 February 2025, Dakem v Commission, C‑308/24 P, EU:C:2025:55, paragraph 43 and the case-law cited).
38 In the present case, although the form of order sought in the appeal formally seeks to have set aside the judgment under appeal and the decision at issue, it must nevertheless be noted that the single ground put forward by PNB Banka in its appeal does not criticise the General Court’s analysis of the pleas which it raised in its application at first instance and that that single ground of appeal does not refer to any paragraph in that analysis.
39 Thus, the only element of that judgment which is specifically challenged in the appeal is a finding in paragraph 72 of that judgment, which appears in the section of that judgment relating to the General Court’s examination of two requests for a stay of proceedings submitted by PNB Banka.
40 It should be noted, first, that that section of the judgment under appeal is part of the General Court’s reasoning intended only to reject those requests for a stay of proceedings. That part, which is clearly separate from the grounds on which the General Court dismissed the action on the merits, cannot therefore be regarded as forming the basis of the operative part of that judgment.
41 Second, PNB Banka has not criticised the General Court’s rejection of those requests for a stay of proceedings and has not provided any explanation as to the link that it wishes to establish between (i) the alleged error, which, moreover, it has not clearly identified and which it claims was made by the General Court in the examination of those requests for a stay of proceedings and (ii) the operative part of the judgment under appeal.
42 As to the remainder, the appeal merely sets out allegations formulated in general terms, relating to the alleged pressure exerted by the Republic of Latvia on certain representatives of PNB Banka and relating to the right to effective judicial protection.
43 However, that line of argument is not sufficiently clear and precise to enable the Court of Justice to carry out its review of legality. In particular, PNB Banka has not in any way specified how its criticisms of Latvian law, which do not relate to the General Court’s analysis of the pleas which it raised in its application at first instance, are such as to justify setting aside the judgment under appeal.
44 It follows from all of the foregoing considerations that the single ground of appeal must be rejected as inadmissible and that, consequently, the appeal must be dismissed in its entirety.
45 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.
46 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.
47 Since the ECB and the Commission have 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 and by the Commission. 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) and by the European Commission.