Action brought on 29 December 2023 – Alessio and Others v ECB
(Case T-1192/23)
Language of the case: Italian
Parties
Applicants: Roberto Alessio (Turin, Italy) and 77 other applicants (represented by: F. Ferraro and A. Califano, lawyers)
Defendant: European Central Bank
Form of order sought
The applicants claim that the Court should:
find that the ECB is non-contractually liable and order it to pay compensation for the material and non-material damage deriving from the decision to place Banca Carige under temporary administration (Decision ECB-SSM-2019-ITCAR-11 of the ECB of 1 January 2019), from the extension decisions (Decision ECB-SSM-2019-ITCAR-13 of the ECB of 29 March 2019 extending the period of temporary administration up to 30 September 2019; decision of the ECB of 29 September 2019 extending the period of temporary administration up to 31 December 2019; decision of the ECB of 19 December 2019 extending the period of temporary administration up to 31 January 2020), from the refusal of access to the decisions of 1 January 2019 and 29 March 2019 (LS/LDG/19/182 of the ECB of 29 May 2019) and from the exercise of supervisory functions over Banca Carige from 1 January 2019 to 6 December 2023.
Pleas in law and main arguments
In support of the action, the applicants put forward 11 pleas in law.
First plea, alleging that the ECB was its serious and manifest breach of the principle nemo auditur propriam turpitudinem allegans, of the duty of diligence and of the duty of good administration when it contributed to the weakening of Banca Carige’s capital position in the period prior to its being placed under temporary administration.
Second plea, alleging that the ECB committed a serious and manifest infringement of Articles 27 to 29 of Directive 2014/59/EU, of Article 69octiesdecies and Article 70 of the Testo Unico Bancario italiano (‘T.U.B.’) (Italian Consolidated Law on Banking) and of the principle of proportionality by unlawfully placing Banca Carige under temporary administration, as declared by the General Court of the European Union in the judgment of 11 October 2022 in Case T-502/19, Corneli v ECB. The ECB also committed a serious and manifest infringement of Article 72 of the T.U.B. when it hindered the bringing of the action for damages by the applicant shareholders against the appointment as special administrators of persons who had been part of the Board of Banca Carige immediately prior to the temporary administration regime.
Third plea, alleging that the ECB was in sufficiently serious breach of the legitimate expectations of the applicants when it first made it understood clearly and expressly that it was not absolutely urgent to act in respect of the recovery of Banca Carige, before shortly afterwards placing the Bank under temporary administration. At the same time, the ECB was in breach of the principle of cooperation in good faith with the persons concerned in pursuing the objectives of the European Union.
Fourth plea, alleging that the ECB committed a serious and manifest infringement of Article 63 TFEU and of the principle of equal treatment, in so far as the unlawful placing of Banca Carige under temporary administration and the resulting capital increase without applying pre-emption rights for the applicant shareholders arbitrarily excluded the possibility for those applicants of further investing in the Bank and participating in its restructuring, in contrast to that which occurred in the context of operations for the recovery of other credit institutions in the past.
Fifth plea, alleging that the ECB committed a serious and manifest infringement of the second paragraph of Article 1 TEU, Article 15(1) TFEU and Article 4 of Decision 2004/258/EC 1 regarding access to the documents of the institutions when it unlawfully rejected the requests for access to its decision of 1 January 2019 to place Banca Carige under temporary administration, as highlighted in the judgment of the General Court of the European Union of 29 June 2022 in Case T-501/19, Corneli v ECB.
Sixth plea, alleging that the ECB committed a serious and manifest infringement of recital 40 and of Article 29(5) and (8) of Directive 2014/59/EU, 1 and of Articles 56 and 61 of the T.U.B., when it failed to intervene regarding the unlawful decision of the special administrators to exclude the applicant shareholders from the capital increase proposed under the temporary administration regime, when it failed to review the irregularities in the authorisations regarding the vote on the capital increase and when it failed to review the effectiveness of the participation of CCB in the capital increase.
Seventh plea, alleging that the ECB implemented the unlawful decision to place Banca Carige under temporary administration in so far as it authorised the new administrators that it had appointed to adopt acts with no legal basis and did not take the necessary measures to implement the annulment judgment.
Eighth plea, alleging that the ECB committed a serious and manifest infringement of the applicants’ right to property (Article 17 of the Charter of Fundamental Rights of the European Union).
Ninth plea, alleging that the ECB committed a serious and manifest infringement of the right to good administration (Article 41 of the Charter of Fundamental Rights of the European Union).
Tenth plea, alleging that the ECB committed a serious and manifest infringement of the right of access to documents of the institutions (Article 15 TFEU and Article 42 of the Charter) and of the right to effective judicial protection (Article 47 of the Charter of Fundamental Rights).
Eleventh plea, seeking – in the disputed event that no finding of unlawfulness of the ECB’s conduct is made – in the alternative, a finding of liability for a lawful act on the part of the supervisory authority of the European Union.
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1 Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).
1 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 and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190).