Joined Cases T‑133/16 to T‑136/16

Caisse régionale de crédit agricole mutuel Alpes Provence and Others

v

European Central Bank

(Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(e) and (3) of Regulation (EU) No 1024/2013 — Person effectively directing the business of a credit institution — Article 13(1) of Directive 2013/36/EU and the second paragraph of Article L. 511-13 of the French monetary and financial code — Prohibition on combining the role of chairman of the management body of a credit institution in its supervisory function with the role of chief executive officer of the same establishment — Article 88(1)(e) of Directive 2013/36 and Article L. 511-58 of the French monetary and financial code)

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 24 April 2018

1.      Economic and monetary policy — Economic policy — Supervision of the EU financial sector — Single supervisory mechanism — Prudential supervision of credit institutions — Combining the role of chairman of the management body of a credit institution with the role of chief executive officer of that institution — European Central Bank’s refusal to authorise — Judicial review — Scope

(Council Regulation No 1024/2013, Art. 4(3); European Parliament and Council Directive 2013/36, Art. 13(1))

2.      EU law — Interpretation — Methods — Textual, systematic, historical and teleological interpretation

3.      Economic and monetary policy — Economic policy — Supervision of the EU financial sector — Single supervisory mechanism — Prudential supervision of credit institutions — Requirement to have at least two persons effectively directing the business of the credit institution — Meaning

(European Parliament and Council Directive 2013/36, Art. 13(1))

4.      National law — Interpretation — Taking into account the interpretation adopted by the courts of the Member State concerned — Taking into account a national court’s judgment delivered after the contested decision before the EU judicature — Lawfulness

1.      As regards a decision concerning the appointment of the chairman of a board of directors of a credit institution as effective director of that institution, the European Central Bank is required, pursuant to Article 4(3) of Regulation No 1024/2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, to apply not only Article 13(1) of Directive 2013/36 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms but also the provision of national law transposing it.

Pursuant to Article 4(3) of Regulation No 1024/2013, for the purposes of carrying out the tasks conferred on it by that regulation, and with the objective of ensuring high standards of supervision, the ECB shall apply all relevant EU law, and where the EU law is composed of directives, the national legislation transposing those directives. Therefore, Article 4(3) of that regulation necessarily requires the EU judicature to assess the legality of decisions refusing the chairman of a board of directors also being approved as effective director of a credit institution in the light of both Article 13(1) of Directive 2013/36 and the relevant provision of national law at issue.

(see paras 47-49)

2.      See the text of the decision.

(see paras 54, 55)

3.      It is apparent from the textual, historical, teleological and contextual interpretations of Article 13(1) of Directive 2013/36 on access to the activity of credit institutions and prudential supervision of credit institutions and investment firms that the expression ‘two persons [who] effectively direct the business of the ... institution’ refers to the members of the management body who are also part of the senior management of the credit institution.

It necessarily follows that, in the general scheme of Directive 2013/36, the objective relating to good governance of credit institutions requires effective oversight of the senior management by the non-executive members of the management body, which necessitates checks and balances within the management body. It is clear that the effectiveness of such oversight may be jeopardised if the chairman of the management body in its supervisory function, while not formally acting as chief executive officer, is also responsible for the effective direction of the business of the credit institution.

(see paras 79, 83)

4.      The scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts. In that regard the fact that the judgment of a national court postdates the contested decision before the EU judicature does not preclude it being taken into account for the purpose of interpreting the national provision at issue, since the applicant has had the opportunity to present its observations before the EU judicature.

(see paras 84, 87)