ORDER OF THE GENERAL COURT (Second Chamber)
10 July 2019 (*)
(Action for annulment — Economic and monetary policy — Prudential supervision of credit institutions — Suspension measures taken by the national supervisory authority — Appointment of a contact person — Limited communication with the ECB — Procedural defects — Intermediary or preparatory measures — Rights of defence — Inadmissibility)
In Case T‑687/18,
Pilatus Bank plc, established in Ta’Xbiex (Malta), represented by O. Behrends, M. Kirchner and L. Feddern, lawyers,
applicant,
v
European Central Bank (ECB), represented by E. Yoo, M. Puidokas and A. Karpf, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU seeking annulment of the ECB’s email of 10 September 2018 in so far as, by that email, the ECB requested the applicant to direct its communications via the Competent Person appointed under Maltese law or with the Competent Person’s approval,
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, E. Buttigieg and B. Berke (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Pilatus Bank plc, is a credit institution established under Maltese law. Pilatus Bank plc was the subject of administrative proceedings concerning a licence withdrawal initiated by the Malta Financial Services Authority.
2 On 22 March 2018, when those proceedings were initiated, the Malta Financial Services Authority appointed a ‘Competent Person’, within the meaning of Maltese law, to whom it transferred all powers of the applicant and of its board of directors.
3 On 29 June 2018, the Malta Financial Services Authority submitted to the European Central Bank (ECB) a proposal to withdraw the applicant’s licence as a credit institution. On 2 August 2018, it submitted to the ECB a revised proposal to withdraw that licence.
4 In that context, on 10 September 2018, the ECB sent an email to the applicant, in which it requested, inter alia, that the applicant direct its communications in the administrative proceedings relating to the withdrawal of its licence via the Competent Person or with the Competent Person’s approval (‘the contested email’).
5 By a decision of 2 November 2018, the ECB withdrew the applicant’s licence.
Procedure and forms of order sought
6 On 20 November 2018, the applicant brought the present action.
7 By a separate document lodged at the Court Registry on 7 December 2018, the applicant brought an application for interim measures. By order of 21 January 2019, Pilatus Bank v ECB (T‑687/18 R, not published, EU:T:2019:28), that application was dismissed and the costs were reserved.
8 By a separate document lodged at the Court Registry on 5 February 2019, the ECB filed an application for a declaration that there is no need to adjudicate, pursuant to Article 130(2) of the Rules of Procedure of the General Court, and a plea of inadmissibility pursuant to Article 130(1) of those rules.
9 By a separate document lodged at the Court Registry on 18 March 2019, the applicant submitted its observations on the application for a declaration that there is no need to adjudicate and on the plea of inadmissibility.
10 By a separate document lodged at the Court Registry on 20 March 2019, the applicant filed an application for measures of organisation of procedure seeking to have the Court hear officials from the ECB as witnesses or to have them testify in writing.
11 By a separate document lodged at the Court Registry on 10 April 2019, the ECB requested the Court to dismiss that application for measures of organisation of procedure.
12 The applicant claims that the Court should:
– dismiss the application for a declaration that there is no need to adjudicate and the plea of inadmissibility;
– annul the contested email in so far as, by that email, the ECB requested the applicant to direct its communications to it via the Competent Person appointed under Maltese law or with the Competent Person’s approval;
– order the ECB to pay the costs.
13 The ECB contends that the Court should:
– declare that the action for annulment is devoid of purpose;
– in the alternative, declare the action for annulment inadmissible;
– order the applicant to pay the costs.
Law
14 Under Article 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the Court may rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the ECB has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, decides to rule on that application without taking further steps in the proceedings.
15 In accordance with settled case-law, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position may be the subject of an action for annulment on the basis of Article 263 TFEU (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51 and the case-law cited).
16 In order to determine whether an act produces legal effects, it is necessary to look in particular to its subject matter, its content and substance, as well as to the factual and legal context of which it forms part (order of 8 March 2012, Octapharma Pharmazeutika v EMA, T‑573/10, not published, EU:T:2012:114, paragraph 30; see also, to that effect, order of 13 June 1991, Sunzest v Commission, C‑50/90, EU:C:1991:253, paragraphs 12 and 13, and judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 58).
17 In that regard, an intermediate or preparatory measure cannot be open to challenge by an action for annulment, since such a measure does not have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 29; and of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraph 37).
18 Thus, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, an act is in principle open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and, to that effect, of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
19 The position would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings were themselves the culmination of a special procedure distinct from that intended to permit the institution to take a decision on the substance of the case (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11).
20 Furthermore, whilst measures of a purely preparatory character may not themselves be the subject of an application for a declaration that they are void, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12).
21 In the present case, the contested email followed an exchange of emails between the ECB and the applicant’s legal adviser in administrative proceedings relating to withdrawal of the applicant’s licence to operate as a credit institution.
22 In the contested email, the ECB notified that legal adviser, inter alia, that he would be granted authorisation to access the case file concerning the proceedings relating to withdrawal of the applicant’s licence to operate as a credit institution, informing him that the period for submitting observations on the proposed licence withdrawal decision had been extended and requesting that he direct his future communications concerning those licence withdrawal proceedings via the appointed Competent Person or with the approval of that Competent Person.
23 It is thus clear from the subject matter, the content and the substance, as well as from the factual and legal context of which the contested email forms part, that that measure, by specifying the forms which communications addressed to the ECB should take, has solely the purpose and effect of expressing the ECB’s view on a particular aspect of the course of the preparatory proceedings concerning the adoption of a potential licence withdrawal decision.
24 It follows that the contested email does not produce legal effects that are distinct from the licence withdrawal decision, but only limited effects, characteristic of an intermediate measure forming part of a preliminary administrative procedure.
25 Furthermore, it must be stated that the contested email governs only certain aspects of the licence withdrawal proceedings and does not include any decision on the substance. It does not therefore constitute the culmination of a special procedure distinct from that intended to permit the institution to take a decision on the substance of the case within the meaning of the case-law set out in paragraph 19 above.
26 Consequently, it must be concluded that the contested email does not produce binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position and, therefore, is not open to challenge by an action for annulment.
27 It must nevertheless be recalled that any legal defects vitiating the contested email may, as appropriate, be relied on in an action directed against the act definitively withdrawing the licence.
28 In those circumstances, the possible perception that the contested email produces binding legal effects, alleged by the applicant, is not capable of calling into question the fact that it does not have any such effects (see, to that effect, orders of 11 October 2017, Guardian Glass España, Central Vidriera v Commission, T‑170/16, EU:T:2017:722, paragraphs 115 to 117, and of 24 September 2018, Estampaciones Rubí v Commission, T‑775/17, not published, EU:T:2018:607, paragraphs 96 to 98).
29 The same applies with regard to any intention on the part of the ECB’s officials whose testimony the applicant requests.
30 Lastly, the seriousness of the alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the Treaty and make it possible to challenge acts that are not amenable to challenge because they do not produce binding legal effects. Whether an act is open to challenge cannot be deduced from its possible unlawfulness (see, to that effect, judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 87).
31 In the light of the foregoing, the present action must be dismissed as being inadmissible, without it being necessary to rule on whether the applicant continues to have an interest in bringing proceedings or on the application for a measure of organisation of procedure.
Costs
32 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
33 As the applicant 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 ECB, including the costs of the interlocutory proceedings.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The action is dismissed as being inadmissible.
2. Pilatus Bank plc shall pay the costs, including those relating to the interlocutory proceedings.
Luxembourg, 10 July 2019.