ECB: two pending cases at the EU Court of Justice on CARIGE Bank

A CARIGE Bank shareholder has brought two actions against ECB at the European Court of Justice.

Taking into account article 340 of the European Treaty - the ECB is liable for damages - we read the following text of the plaints done by a shareholder of Banca CARIGE:

Action brought on 12 July 2019 — Corneli v ECB

(Case T-501/19)

Language of the case: Italian

Parties

Applicant: Francesca Corneli (Velletri, Italy) (represented by: F. Ferraro, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

annul the ECB Executive Board’s decision of 29 May 2019, ref L/LDG/19/182, refusing access to the ECB’s decision to place Banca Carige S.p.A., having its registered office in Genoa, Italy, under special administration and to the relevant case file, and order the defendant to produce and submit to the Court the abovementioned decision and all prior, preparatory, related and consequent acts; and

order the defendant to pay the costs.

Pleas in law and main arguments

This action has been brought for the annulment of the ECB Executive Board’s decision of 29 May 2019, ref L/LDG/19/182, refusing access to the ECB’s decision to place Banca Carige S.p.A., having its registered office in Genoa, Italy, under special administration and to the relevant case file, and for an order that the defendant produce and submit to the Court the abovementioned decision and all prior, preparatory, related and consequent acts.

In support of the action, the applicant relies on four pleas in law.

First plea in law, alleging infringement of Article 4 of ECB Decision 2004/3 and misapplication of the exception relating to the confidentiality of information that is protected as such under EU law.

The applicant claims in this respect that the contested decision is unlawful in so far as it lacks actual evidence indicating the confidential parts of the document at issue, their function and their purpose within the ECB and the risks attached to their disclosure. It claims that, in weighing up the various interests, there is no doubt that savers’ specific interest in protecting their shareholding as well as the efficiency and transparency of the governance of the company prevails over the general requirement — in respect of which no reasons are given — to protect supervision procedures.

Second plea in law, alleging failure to state reasons for the confidential nature of the document requested.

The applicant claims in this respect that the ECB fails to offer any reasons for its claim that the contested act is confidential, merely stating, as if it were obvious, that protecting its supervision procedures justifies the refusal of access.

Third plea in law, alleging infringement of Article 7(1) and 8(1) of ECB Decision 2004/3 and failure to state reasons.

The applicant claims in this respect serious infringement of Articles 7(1) and 8(1) of Decision 2004/3 and failure to state reasons, since the conditions for a general presumption of confidentiality are not satisfied and in any event the ECB failed to carry out a specific assessment of the documents to which access was requested.

Fourth plea in law, alleging infringement of the fundamental right to effective judicial protection (Article 47 of the Charter of Fundamental Rights of the European Union) and of Articles 7(3) and 8(2) of ECB Decision 2004/3.

The applicant claims in this respect that the ECB cannot completely thwart the interests of the parties to whom the measure is addressed, including the bank’s shareholders, who have the right to effective protection under Article 47 of the Charter of Fundamental Rights of the European Union against the ‘poor’ exercise of official authority. The ECB also infringed Articles 7(3) and 8(2) of ECB Decision 2004/3 since on a number of occasions it has referred to an exceptionally high workload without providing any proof in that regard, in order to extend, by a further 20 days, the time limit laid down for replying to the applicant’s request for access.

Action brought on 12 July 2019 — Corneli v ECB

(Case T-502/19)

Language of the case: Italian

Parties

Applicant: Francesca Corneli (Velletri, Italy) (represented by: M. Condinanzi, L. Boggio and F. Ferraro, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

declare the contested decision to be unlawful and thus null and void;

order the defendant to pay the costs; and

order, as a measure of organisation of procedure, that the contested decision and the subsequent renewal decision, in their respective full versions, be submitted to the Court.

Pleas in law and main arguments

This action has been brought against Decision ECB-SSM-2019-ITCAR-11 of the Governing Council of the European Central Bank of 1 January 2019, adopted on the basis of a draft decision of the Supervisory Board pursuant to Article 26(8) of Council Regulation (EU) No 1024/2013, ¹ pursuant to Articles 69octiesdecies, 70 and 98 of decreto legislativo n. 385 del 1° settembre 1993 (Legislative Decree No 385 of 1 September 1993; ‘the TUB’), transposing Article 29 of Directive 2014/59/EU of the European Parliament and of the Council, in conjunction with Article 9(2) of Regulation (EU) 1024/2013, to dissolve the administrative and supervisory bodies of Banca Carige S.p.A., having its registered office in Genoa, and to replace them with three special administrators and with a supervisory committee formed of three members, respectively.

In support of the action, the applicant relies on five pleas in law.

First plea in law, alleging failure to observe the principle of proportionality and infringement of Articles 28 and 29 of Directive 2014/59/EU ² and Article 69octiesdecies et seq. of the TUB.

The applicant claims in this respect that early intervention measures need to be introduced gradually, which was not the case here. The most intrusive measure is, therefore, unlawful and void.

Second plea in law, alleging failure to give adequate reasoning as regards the requirements of proportionality and of taking a gradual approach imposed by the overall early intervention system.

Third plea in law, alleging infringement of the last sentence of Article 29(1) of Directive 2014/59/EU and failure to observe the principle of sound public administration.

The applicant claims in this respect that the appointment of members of the former board of directors as temporary administrators amounts to a failure to comply with the obligation to avoid conflicts of interest.

Fourth plea in law, alleging infringement of Article 70 of the TUB, misuse of powers and a failure to provide sufficient reasoning.

The applicant claims in this respect that imposing the special administration on the grounds of serious infringements or irregularities renders the measure contradictory and inconsistent.

Fifth plea in law, alleging infringement of the rules relating to the rights of shareholders contained in Directive (EU) 1132/2017 ³ and the Italian Civil Code, as well as those which may be enforced through the fundamental principles enshrined in the Charter of Fundamental Rights of the European Union, in the European Convention on Human Rights and in the Italian Constitution on the protection of property, savings, private economic initiative and the right to self-determination of citizens in personal choices.

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¹ 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). 

² Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms (OJ 2014 L 173, p. 190). 

³ Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ 2017 L 169, p. 46).