ORDER OF THE GENERAL COURT (Sixth Chamber)
16 May 2024 (*)
(Action for damages – Non-contractual liability – Economic and monetary policy – Prudential supervision of credit institutions – Specific supervisory tasks conferred on the ECB – Decision to withdraw a credit institution’s authorisation – Failure to comply with procedural requirements – Article 76(d) of the Rules of Procedure – Manifest inadmissibility)
In Case T‑421/23,
Versobank AS, established in Tallinn (Estonia), represented by O. Behrends, lawyer,
applicant,
v
European Central Bank (ECB), represented by E. Yoo, A. Pizzolla and G. Marafioti, acting as Agents,
defendant,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira (Rapporteur), President, M. Kancheva and P. Zilgalvis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
– the plea of inadmissibility raised by the ECB by separate document lodged at the Registry of the General Court on 9 October 2023;
– the applicant’s observations on the plea of inadmissibility lodged at the Court Registry on 22 November 2023;
– the application to intervene of the Council of the European Union lodged at the Court Registry on 26 September 2023,
makes the following
Order
1 By its action under Article 268 TFEU, the applicant, Versobank AS, seeks compensation for the damage it claims to have suffered as a result of, first, the adoption of Decision ECB-SSM-2018-EE2 WHD-2017-0012 of the European Central Bank (ECB) of 17 July 2018 withdrawing its authorisation as a credit institution and, secondly, the ECB’s conduct in connection with that decision.
Background to the dispute
2 The applicant was a credit institution established in Estonia and was classified as a less significant institution within the meaning of Article 6 of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).
3 On 26 March 2018, on the basis of Article 4(1)(a) and Article 14(5) of Regulation No 1024/2013, Article 83 of Regulation (EU) No 468/2014 of the ECB of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the ECB and national competent authorities and with national designated authorities (OJ 2014 L 141, p. 1) and Paragraph 17 of the Krediidiasutuste seadus (Estonian Law on credit institutions) of 9 February 1999, transposing 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), the ECB adopted and notified the applicant of its decision withdrawing the applicant’s authorisation (‘the decision of 26 March 2018’).
4 On 27 March 2018, the competent Estonian court adopted a decision opening the proceedings for the liquidation of the applicant.
5 On 26 April 2018, the ECB’s Administrative Board of Review received a request from the applicant for review of the decision of 26 March 2018.
6 On 22 June 2018, the ECB’s Administrative Board of Review adopted and communicated to the ECB’s Supervisory Board Opinion AB/2018/03, by which it proposed that the Supervisory Board take the view that the substantive and procedural infringements relied on were unfounded and that it adopt a decision identical in content to the decision of 26 March 2018.
7 On 17 July 2018, the ECB’s Governing Council followed that opinion and adopted a decision, which was notified to the applicant’s liquidators, repealing and replacing the decision of 26 March 2018 (‘the decision of 17 July 2018’). In that decision, the ECB expressed the view that, based on the evidence gathered and the findings of the on-site inspections carried out by the Finantsinspektsioon (FSA, Estonia), the grounds for withdrawal of authorisation set out in Article 18(f) of Directive 2013/36, as transposed into Estonian law, had to be regarded as being satisfied in relation to the applicant.
8 By applications lodged at the Court Registry on 5 June 2018 and 27 September 2018, the applicant brought actions for annulment of the decisions of 26 March 2018 (Case T‑351/18) and 17 July 2018 (Case T‑584/18).
9 By judgment of 6 October 2021, Ukrselhosprom PCF and Versobank v ECB (T‑351/18 and T‑584/18, EU:T:2021:669), the General Court, first, as regards Case T‑351/18, found that the action had become devoid of purpose after it had been brought and that, therefore, there was no longer any need to rule on it, and, secondly, as regards Case T‑584/18, dismissed the action as unfounded.
Event subsequent to the bringing of the present action
10 By judgment of 7 September 2023, Versobank v ECB (C‑803/21 P, not published, EU:C:2023:630), the Court of Justice dismissed in its entirety the applicant’s appeal seeking to have the judgment of 6 October 2021, Ukrselhosprom PCF and Versobank v ECB (T‑351/18 and T‑584/18, EU:T:2021:669), set aside.
Forms of order sought
11 The applicant claims, in essence, that the General Court should:
– order the ECB to pay compensation for the damage which it allegedly suffered as a result of the adoption of the decision of 17 July 2018 and of the ECB’s conduct in connection with that decision;
– order the ECB to pay the costs.
12 In its plea of inadmissibility, the ECB contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
13 In its observations on the plea of inadmissibility, the applicant claims, in essence, that the Court should reject that plea.
Law
14 Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may give a decision on inadmissibility or lack of competence without going to the substance of the case.
15 Moreover, under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
16 In the present case, the Court, taking the view that it has sufficient information from the material in the case file, has decided to give a decision without taking further steps in the proceedings.
17 In support of its plea of inadmissibility, the ECB submits that the claim for damages is inadmissible, since the application does not meet the requirements of Article 76(d) of the Rules of Procedure. The application does not contain any evidence capable of demonstrating the existence of unlawful conduct on the part of the ECB, the existence of actual and certain damage, and the existence of a causal link between the conduct complained of against the ECB and the alleged damage.
18 The applicant challenges the plea of inadmissibility and submits that the ECB’s position is abusive inasmuch as it insists, in particular, on the production of documents which is impossible because of the latter’s unlawful conduct. Furthermore, the applicant asserts that it referred on numerous occasions in the application to the infringements of EU law and the infringements of its rights committed by the ECB, to the damage allegedly caused to it by those infringements, and to the direct causal link between that damage and the ECB’s unlawful conduct. In particular, the application specifically refers to the following infringements of EU law: infringement of the applicant’s right of representation; infringement of the applicant’s rights of defence; infringement of the principles laid down in 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 in the Opinion of Advocate General Kokott in Joined Cases ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:323); and infringement of the applicant’s undisputed right to be treated lawfully, including in accordance with the proper allocation of competences by the ECB in its capacity as supervisory authority. In short, the plea of inadmissibility raised amounts to a refusal by the ECB to read the application.
19 As a preliminary point, it must be borne in mind that the non‑contractual liability of the European Union and the exercise of the right to compensation for damage suffered, provided for in the second paragraph of Article 340 TFEU, depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgment of 28 April 1971, Lütticke v Commission, 4/69, EU:C:1971:40, paragraph 10; see also judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106 and the case-law cited).
20 It should also be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, and under Article 76(d) of the Rules of Procedure, all applications must state the subject matter of the dispute, the pleas and arguments put forward, and a brief statement of those pleas in law. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, for the basic legal and factual particulars relied upon to be stated coherently and intelligibly in the application itself (see order of 23 January 2018, Campailla v European Union, T‑759/16, not published, EU:T:2018:26, paragraph 23 and the case-law cited).
21 In order to meet those requirements, an application seeking compensation for damage allegedly caused by an EU institution must contain information identifying the conduct which the applicant alleges against the institution, the reasons why it considers there to be a causal link between that conduct and the damage allegedly suffered, and the nature and extent of that damage (see order of 23 January 2018, Campailla v European Union, T‑759/16, not published, EU:T:2018:26, paragraph 24 and the case-law cited).
22 As regards the nature and extent of the alleged damage, according to the case-law, an applicant may not have put in figures the amount of the loss which it submits it has suffered, while clearly indicating the evidence which enables its nature and extent to be assessed, so that the defendant is in a position to conduct its defence. In such circumstances, the absence of precise figures in the application does not affect the other party’s rights of defence (order of 22 July 2005, Polyelectrolyte Producers Group v Council and Commission, T‑376/04, EU:T:2005:297, paragraph 55).
23 In the present case, the applicant merely states, in paragraph 75 of the application, that it suffered material damage, but that ‘because of the on-going nature of the interference with the [a]pplicant’s rights of defence and the current lack of an effective representation, it is not possible, currently, for the [a]pplicant to quantify this damage’. The applicant has thus failed to provide sufficient information to enable the Court and the ECB to assess the nature and extent of the damage suffered.
24 Concerning the causal link, it should be borne in mind that the damage pleaded must be a sufficiently direct consequence of the conduct complained of, which must be the determining cause of the damage, although there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation. It is for the applicant to adduce evidence of a causal link between the conduct complained of and the damage pleaded (see judgment of 8 November 2017, De Nicola v Court of Justice of the European Union, T‑99/16, not published, EU:T:2017:790, paragraph 25 and the case-law cited).
25 In the present case, the applicant does not explain why, in its view, such a link exists between the conduct complained of against the ECB and the damage allegedly suffered. It merely asserts, in paragraph 75 of the application, that ‘there can be no doubt that the ECB’s wrongful treatment of the [a]pplicant led to considerable material damage’.
26 Furthermore, the information in the application concerning the ECB’s conduct complained of by the applicant, relating, in essence, to the infringements of its rights of defence during the administrative procedure and, in particular, to the question of its effective representation during that procedure and to the fact that the ECB allegedly acted as de facto spokesperson for the applicant’s liquidator, does not identify the reasons why it considers there to be a causal link between that conduct and the damage it claims to have suffered as a result of the decision to withdraw its authorisation, and the nature and extent of that damage.
27 The Court does not have jurisdiction to ascertain itself whether there is a causal link between the conduct of the institution at issue and the alleged damage (see order of 23 January 2018, Campailla v European Union, T‑759/16, not published, EU:T:2018:26, paragraph 28 and the case-law cited).
28 It follows from all of the foregoing that the application does not meet the requirements of clarity and precision set out in the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, and in Article 76(d) of the Rules of Procedure, in order to enable the ECB to prepare its defence and the General Court to rule on the claim for damages.
29 Thus, the plea of inadmissibility raised by the ECB must be upheld and the action must be dismissed in its entirety as manifestly inadmissible, without it being necessary to rule on the lawfulness of the power of attorney of the applicant’s representative.
30 In those circumstances, and in accordance with Article 142(2) of the Rules of Procedure, there is also no longer any need to adjudicate on the application to intervene submitted by the Council of the European Union.
Costs
31 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.
32 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
33 Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the Council shall bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. There is no longer any need to adjudicate on the application to intervene submitted by the Council of the European Union.
3. Versobank AS shall pay the costs, except those relating to the application to intervene.
4. The Council shall bear its own costs.
Luxembourg, 16 May 2024.
V. Di Bucci | | M.J. Costeira |