JUDGMENT OF THE GENERAL COURT (Third Chamber)
30 June 2021 (*)
(Non-contractual liability – State aid – Banking sector – Planned recapitalisation of a member by a private-law consortium of banks – Measure authorised by the Central Bank of the Member State – Decision not to proceed with the rescue and initiation of a resolution procedure – Directives 2014/49/EU and 2014/59/EU – Decision not to raise any objections – Requests for information and views expressed by the Commission during the preliminary examination stage – No causal link)
In Case T‑635/19,
Fondazione Cassa di Risparmio di Pesaro, established in Pesaro (Italy),
Montani Antaldi Srl, established in Pesaro,
Fondazione Cassa di Risparmio di Fano, established in Fano (Italy),
Fondazione Cassa di Risparmio di Jesi, established in Jesi (Italy),
Fondazione Cassa di Risparmio della Provincia di Macerata, established in Macerata (Italy),
represented by A. Sandulli and B. Cimino, lawyers,
applicants,
v
European Commission, represented by P. Stancanelli, I. Barcew, A. Bouchagiar and D. Recchia, acting as Agents,
defendant,
ACTION under Article 268 TFEU seeking compensation for damage allegedly suffered by the applicants as a result, in particular, of the Commission’s unlawful conduct preventing the rescue of Banca delle Marche,
THE GENERAL COURT (Third Chamber),
composed of Z. Csehi, acting as President, G. De Baere and G. Steinfatt (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 21 January 2021,
gives the following
Judgment
Background to the dispute
1 By the present action, the applicants, Fondazione Cassa di Risparmio di Pesaro, Montani Antaldi Srl, Fondazione Cassa di Risparmio di Fano, Fondazione Cassa di Risparmio di Jesi and Fondazione Cassa di Risparmio della Provincia di Macerata, seek to establish non-contractual liability on the part of the European Union under the second paragraph of Article 340 TFEU, on the ground that the alleged unlawful conduct of the European Commission – exerting unlawful pressure on the Italian authorities and, in particular, the Central Bank of Italy, Banca d’Italia (‘Bank of Italy’) – prevented the rescue of Banca delle Marche, in respect of which the applicants were shareholders and subordinated creditors, thus causing them damage. More specifically, the Commission prevented a rescue by the Fondo interbancario di tutela dei depositi (Interbank Deposits Protection Fund, Italy) (‘the FITD’), the Italian deposit guarantee scheme in the form of a consortium governed by private law between banks managing own funds, and led the Italian authorities, in particular the Bank of Italy, as the national competent authority, to initiate a resolution procedure in respect of Banca delle Marche under the Italian law rules transposing 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).
2 Banca delle Marche, established by the merger of the Macerata (Italy), Pesaro (Italy) and Jesi (Italy) savings banks, was the main banking institution in the Italian Marche region. As at 30 September 2015, it still had a network of around 300 branches, total assets of EUR 14.713 billion, a collection of savings of EUR 13.527 billion and net lending in the amount of EUR 12.237 billion.
3 On 9 January 2012, the Bank of Italy stated that Banca delle Marche was showing ‘signs of increasing difficulty’ and that the checks carried out had revealed serious shortcomings in the internal control systems which led to inevitable knock-on effects on its ‘significant exposure … to credit and financial risks’.
4 On 25 June 2013, the Bank of Italy noted that Banca delle Marche was facing ‘a significant deterioration in technical aspects, in particular with regard to the risks associated with credit and the resulting consequences on profitability and capital adequacy’.
5 On 8 October 2013, the Bank of Italy suggested that the Ministero dell’Economia e delle Finanze (Ministry of the Economy and Finance) place Banca delle Marche under extraordinary administration pursuant to Articles 70 and 98 of the Testo Unico Bancario italiano (Consolidated Italian Banking Act), introduced by decreto legislative (Legislative Decree) No 385 of 1 September 1993 (GURI No 230, 30 September 1993, Ordinary Supplement No 92) on account of ‘serious … deficiencies and irregularities’. On that date, the financial situation of Banca delle Marche consisted of collected funds amounting to EUR 20.9 billion, regulatory capital amounting to EUR 996 million, a total capital ratio of 6.65% and an estimated deficit of EUR 202 million in view of prudential requirements.
6 On 15 October 2013, Banca delle Marche was placed under extraordinary administration. Banca delle Marche’s extraordinary commissioners made a first attempt at resolving its crisis situation by means of support measures envisaged by Credito Fondiario SpA (‘FonSpa’) and the FITD, for which the FITD requested on 12 September 2014, and obtained on 3 December 2014, authorisation from the Bank of Italy. However, the planned rescue by means of the recapitalisation of Banca delle Marche was not possible because FonSpa had not been able to mobilise on the market the total amount of resources needed.
7 On 10 October 2014, in the context of a preliminary examination stage initiated of its own motion concerning the support measures envisaged by the FITD in favour of another Italian bank, Banca Tercas [SA.39451 (2014/CP)], and of Banca delle Marche [SA.39543 (2014/CP)], the Commission made a request for information to the Italian authorities, making it clear that it was possible that those measures amount to State aid.
8 By letter of 18 December 2014, the Commission informed the Italian authorities that the support measure envisaged by the FITD in favour of Banca delle Marche could constitute State aid and that, if the Bank of Italy intended to authorise such a measure, those authorities would have to notify the measure in question before its approval, in accordance with Article 108(3) TFEU.
9 On 27 February 2015, the Commission decided to initiate the formal investigation procedure with regard to the support measures by the FITD in favour of Banca Tercas [SA.39451 (2015/C) (ex 2015/NN)] (OJ 2015 C 136, p. 17). In that decision it considered, inter alia, that the interventions involved State resources and were imputable to the Italian State.
10 By letter of 21 August 2015, concerning procedure SA.39543 relating to Banca delle Marche, the Commission drew attention to the possible existence of State aid and requested the Italian authorities to provide it with updated information in that regard and to refrain from implementing any measure of the FITD before notifying it and receiving a decision from the Commission.
11 In September 2015, the Bank of Italy informed the Commission of the fact that measures to resolve the crisis situation facing three banks, including Banca delle Marche, were being decided, which provided for the absorption of losses through the reserves and the capital represented by shares, the reduction to zero or the conversion of subordinated claims, and a capital increase using either private capital or through the intervention of the FITD.
12 According to the extraordinary commissioners, the financial situation of Banca delle Marche as at 30 September 2015 reflected net capital – the accounting value of the shares – amounting to EUR 13 million, and a deficit of EUR 1.432 billion.
13 On 8 October 2015, the FITD fixed and approved the key elements of a second attempt at intervention, consisting of a capital injection into Banca delle Marche in the amount of EUR 1.2 billion, ‘by means of funding which [was] in the process of being implemented by certain member banks of the consortium’, accompanied by a restructuring plan for that bank prepared by a consultancy firm, and informed the Bank of Italy thereof by letters of 9 and 15 October 2015. In its letter of 9 October 2015, the FITD stated that, in accordance with those key elements, on the one hand, it would intervene following the transposition of Directive 2014/59 into national law (see paragraph 1 above) and, on the other, the specific terms of its intervention would be submitted to the Board of the FITD after the structure of the equity transaction had been fixed, in particular having regard to the fact that the intervention would be carried out through funding provided by a consortium of banks under market conditions. Lastly, it was noted that the entire operation was subject, in particular, to the approval by the Bank of Italy of the amendments to the articles of association of FITD which sought to introduce the new mechanism for ex ante contribution, and to the legal implementation of the capital increase operation.
14 In October 2015, the Bank of Italy sent the Commission a note entitled ‘Solution for the Banca delle Marche Group’, highlighting the financial situation of that bank, the fact that it had been placed under extraordinary administration, the failed rescue attempt in conjunction with FonSpa, and the existence of a restructuring plan mandated by the FITD and prepared by a consultancy firm. The Bank of Italy concluded that, in view of the fact that, as at 31 December 2015, it was assumed that the shareholders’ capital was close to zero, the recapitalisation of the bank would be implemented, first, by the reduction to zero or the conversion of subordinated claims (up to EUR 427.5 million as at 30 September 2015) and, second, by a capital injection in the amount of EUR 1.2 billion by the FITD. Attached to that note were, inter alia, the letter from the FITD of 9 October 2015 (see paragraph 13 above) and the restructuring plan.
15 By letter of 4 November 2015, Banca delle Marche’s extraordinary commissioners informed the Bank of Italy of the imminent suspension of payment by that bank and stated that they feared that its rescue could not take place in good time given its financial situation.
16 On 16 November 2015, the Italian Republic transposed Directive 2014/59 into national law by the adoption of decreto legislative (Legislative Decree) No 180/15 (GURI No 267 of 16 November 2015, p. 1) concerning, in particular, the creation of resolution funds with the Bank of Italy, with the possibility of delegating functions to a deposit guarantee scheme recognised under Article 96 of the Consolidated Italian Banking Act (see Articles 78 to 86 of that decree), such as the FITD.
17 By joint letter of 19 November 2015, EU Commissioners Mr Hill and Ms Vestager, who were at the time responsible for financial stability, financial services and the capital union markets, and competition, respectively, informed the Italian authorities of their interpretation of the requirements of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ 2014 L 173, p. 149), read in conjunction with Directive 2014/59, and, more specifically, drew attention to the fact that the use of a deposit guarantee scheme to recapitalise a bank, under Article 11(3) of Directive 2014/49, was subject to the application of State aid rules. Thus, according to that letter, where it is concluded that the use of such a system involves State aid, the resolution of a bank must be envisaged in the light of Directive 2014/59, which classifies any ‘extraordinary public financial support’ as ‘State aid that is provided in order to preserve or restore the viability, liquidity or solvency of an institution’. Therefore, the conditions and requirements set out in that directive would apply. If, on the other hand, the use of the deposit guarantee scheme were not classified as State aid, but rather as a purely private intervention, it would not give rise to a resolution under that directive.
18 On 21 November 2015, with the agreement of the Ministry of the Economy and Finance on 22 November 2015, the Bank of Italy initiated a resolution procedure under Article 32 of Legislative Decree No 180/15 in respect of Banca delle Marche. The draft resolution was notified to the Commission on 20 November 2015.
19 In the ‘Draft resolution of Banca delle Marche’, the Bank of Italy noted, inter alia, the fact that it was not possible for the FITD to recapitalise Banca delle Marche, in the absence of a ‘prior positive assessment by the Commission … of the compatibility of [that transaction] with the [EU] State aid rules’. In the context of the ‘provisional valuation’ carried out in accordance with the conditions for initiating a resolution procedure, within the meaning of Article 25 of Legislative Decree No 180/15 and Article 36(9) of Directive 2014/59, the Bank of Italy noted the failing nature of Banca delle Marche, as evidenced by total losses of EUR 1.445 billion and a deficit of EUR 1.432 billion as at 30 September 2015. According to the Bank of Italy, during the extraordinary administration procedure, it was not possible to decide measures by the private sector capable of resolving its crisis situation. Likewise, the intervention envisaged by the FITD in favour of Banca delle Marche was impractical and unsuited for the rapid resolution of the crisis. In the light of the public nature attributed to the guarantee schemes, the intervention envisaged required prior approval from the Commission concerning the compatibility of that intervention with EU State aid rules. That operation was submitted to the Commission but could not be carried out in the absence of a prior positive assessment by the Commission. That provisional valuation was confirmed by the final valuation carried out in April 2016 by an independent expert appointed by the Bank of Italy.
20 The resolution of Banca delle Marche, as ordered by the Bank of Italy, consisted of the transfer of the assets and liabilities of that institution to a newly established bridge bank, Nuova Banca delle Marche SpA (‘the bridge bank’), the capital of which was subscribed by newly created resolution funds by means of contributions from the banking sector, in order to maintain essential activities until the sale of the bank in an open and non-discriminatory manner. At the same time, provision was made, first, for the subsequent transfer of impaired assets – or non-performing loans – from the bridge bank to a new asset management vehicle or ‘bad bank’, namely REV – Gestione Crediti SpA, controlled by resolution funds, at a purchase price corresponding to approximately 18% of the initial value, second, for the write-down of reserves and share capital resulting in the cancellation of administrative and property rights and, third, for the yielding up of obligations subordinated to the liabilities of the former Banca delle Marche, which had become an empty shell, with no possibility for holders to recover their claims. The aid measures provided for the purposes of the implementation of resolution operations in respect of Banca delle Marche constituted, on the one hand, a ‘first measure’, consisting of a capital injection intended to cover the negative equity of the bridge bank in the amount of EUR 1.005 billion and the recapitalisation of that bank in the amount of EUR 1.041 billion, and, on the other, a ‘second measure’, consisting of a transfer of impaired assets in the amount of EUR 916 million to the bad bank.
21 On 22 November 2015, the Commission, following the preliminary examination stage, adopted Decision C(2015) 8371 final on State aid SA.39543 (2015/N) granted by Italy – Aid measures for the resolution of Banca delle Marche, not raising any objections against the aid measures envisaged in the context of the resolution of Banca delle Marche, on the grounds that they were compatible with the internal market within the meaning of Article107(3)(b) TFEU. As at that date, the equity balance of Banca delle Marche was negative in the amount of EUR 1.412 billion.
22 On 26 November 2015, the extraordinary meeting of the banks belonging to the FITD consortium approved the amendments to the articles of association authorising the voluntary ex ante intervention of the FITD. Those amendments were subsequently approved by the Bank of Italy.
23 Between 22 November and 31 December 2015, the bridge bank recorded approximately EUR 12 million in net losses. In addition, in 2016, it incurred losses totalling approximately EUR 775 million, including EUR 668.7 million resulting from further deterioration of non-performing loans.
24 On 9 December 2015, the Head of the Monitoring Department of the Bank of Italy was interviewed by the Finance Committee of the Italian Camera dei deputati (Chamber of Deputies, Italy). It is apparent from the minutes of that meeting, inter alia, that:
‘The management [by Banca delle Marche’s extraordinary commissioners] continued for an extended period of time … It was at that time that the availability of the [FITD]… [to absorb] the risks of non-performing loans became clear. The support measures of the [FITD] made it possible, with the resources provided by other banks, to lay the foundations for a way out of the crisis, without prejudice to creditors … This was not possible in the light of the preconceived opinion – that we do not share – adopted by the Commission services …, which considered that the support measures of the [FITD] constituted State aid …
As I have already stated, this form of intervention was carefully considered and defined in detail by the [FITD] … But the planned intervention was not possible in so far as the support measures taken by the FTID were categorised by the Commission services … as State aid by equating them to use of public funds. As I have already stated, we do not share this view. In Italy, guarantee schemes are private entities; their alternative interventions to the reimbursement of depositors are decided autonomously and are financed by private resources …’
25 On 23 December 2015, the Commission adopted Decision (EU) 2016/1208 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN) (OJ 2016 L 203, p. 1) (‘the decision concerning Banca Tercas’), categorising the support measures taken by the FITD in question as unlawful State aid incompatible with the Internal market and ordering their recovery.
26 In a note published on its website on 25 March 2016 entitled ‘The crisis of Banca delle Marche’, the Bank of Italy pointed out, in essence, inter alia, that, in October 2014, the Commission made a request for information to the Italian authorities concerning the support measures envisaged by the FITD in favour of Banca Tercas and Banca delle Marche, in view of the possibility that the measures constitute State aid. The Italian authorities then engaged, with the technical support of the Bank of Italy, in a long consultation with the Commission services, involving numerous email exchanges and numerous trips by Italian officials to Brussels (Belgium) during which they tried to convince the Commission that the categorisation as State aid was unfounded. According to the Bank of Italy, it was nevertheless essential to obtain prior approval from the Commission for the intervention of the FITD, the implementation of which would have otherwise led to proceedings involving the Commission being brought before the EU Courts, and all the associated immediate negative effects. However, the Commission services maintained their refusal to approve the intervention of the FITD, even in a form, such as last envisaged, allowing for burden sharing, which, in any event, would have been a much less damaging solution than that which ultimately prevailed. That approach was officially confirmed at the highest level in the letter from EU Commissioners Mr Hill and Ms Vestager of 19 November 2015.
27 By judgment of 30 December 2016 (Case No 12884/2016), following an action brought by the applicants against the Bank of Italy and the Ministry of the Economy and Finance seeking the annulment of resolution measures taken in respect of Banca delle Marche and compensation for the damage caused by that resolution, the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court, Italy) dismissed the applicants’ requests.
28 In 2017, when the bridge bank was sold, new State aid, consisting of, inter alia, a recapitalisation plan in the amount of EUR 556 million from resolution funds, was necessary and the sale price was fixed at s a symbolic euro (see Commission Decision C(2017) 3000 final of 30 April 2017 on State aid SA.39543 (2017/N‑2), SA.41134 (2017/N‑2), SA.43547 (2017/N‑2) (OJ 2018 C 140, p. 1)).
29 By judgment of 22 January 2019 (Case No 00550/2019), the Consiglio di Stato (Council of State, Italy) dismissed the appeal brought by the applicants against the judgment of the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court).
30 By judgment of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), the Court annulled the decision relating to Banca Tercas.
31 On 29 May 2019, the Commission brought an appeal against the judgment of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), which was registered as Case C‑425/19 P.
32 Following a request for revision submitted by the applicants, by order of 7 October 2019 (Case No 03465/2019), the Consiglio di Stato (Council of State) suspended the revision procedure relating to its judgment referred to in paragraph 29 above until the Court issues a final decision in Case C‑425/19 P.
33 By order of 13 November 2019, Commission v Italy and Others (C‑425/19 P, not published, EU:C:2019:980), the President of the Court dismissed the applicants’ request for leave to intervene in support of the forms of order sought by the applicants at first instance on the ground that they had failed to justify the existence of a corresponding interest in the result of Case C‑425/19 P, within the meaning of the second paragraph of Article 40 of the Statue of the Court of Justice of the European Union.
34 By judgment of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154), the Court dismissed the appeal brought by the Commission against the judgment of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167).
Procedure and forms of order sought
35 By application lodged at the Court Registry on 25 September 2019, the applicants brought the present action.
36 In the reply, lodged at the Court Registry on 14 February 2020, the applicants requested that the Court order the Commission, under Article 91 of the Rules of Procedure of the General Court, to produce the administrative file relating to Case ‘Banca delle Marche (SA.39543 2014/CP)’, including all the confidential documents set out in the defence, in order to guarantee respect for their rights of the defence and the adversarial principle, in accordance with the provisions of Article 103 of the Rules of Procedure.
37 By separate document lodged at the Court Registry on 14 April 2020, following an application for measures of inquiry submitted by the Commission requesting that the Court order the applicants to produce the minutes of the FITD Board meeting of 8 October 2015 and any other document from the FITD and relating to the letter of 9 October 2015, in addition to Annex A.7 to the application, the applicants submitted a new offer of evidence relating to those documents. In its observations of 25 June 2020, the Commission did not object to that evidence being included in the file and taken into consideration by the Court.
38 On a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral part of the procedure and, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, asked the Commission to produce the allegedly confidential documents to which it referred to in the defence. The Commission lodged the documents in question within the prescribed time limit, stating that it no longer considered the documents to be confidential.
39 At the hearing on 21 January 2021, the parties presented oral argument and replied to oral questions put by the Court.
40 The applicants claim that the Court should:
– find and declare that the European Union is non-contractually liable, in so far as the Commission prevented the recapitalisation of Banca delle Marche by the FITD by giving unlawful instructions to the Italian authorities;
– order the Commission to pay compensation for the damage caused to the applicants, estimated according to the criteria set out in paragraphs 43 to 51 of the application or in such other manner as the Court may deem appropriate;
– order the Commission to pay the costs.
41 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
Conditions which must be met in order for the European Union to incur non-contractual liability
42 It is settled case-law that the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 32 and the case-law cited ).
43 So far as concerns, in particular, the condition relating to a causal link under the second paragraph of Article 340 TFEU, it is apparent from the case-law that it concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage (see judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 32 and the-law cited).
44 In addition, the non-contractual liability of the European Union cannot be regarded as having been incurred without satisfaction of all the conditions to which the duty to make good any damage, as defined in the second paragraph of Article 340 TFEU, is thus subject (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 165; see, also, order of 12 March 2020, EMB Consulting and Others v ECB, C‑571/19 P, not published, EU:C:2020:208, paragraph 29 and the case-law cited). It follows that the failure to meet one of those conditions is sufficient grounds to dismiss the action.
45 The Court considers that it is necessary to start by examining whether there is a sufficiently direct causal link between the Commission’s alleged unlawful conduct and the damage complained of, within the meaning of the case-law cited in paragraph 43 above.
The existence of a sufficiently direct causal link
46 The applicants maintain that the Commission’s alleged unlawful conduct – namely, in particular, its failure to take account of the concept of State aid, as confirmed by the judgment of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), was the effective and exclusive cause of the damage which they suffered. It is established that, on the one hand, the Italian authorities pursued every possible alternative solution to the resolution of Banca delle Marche and the Commission’s opposition made each of those solutions impossible, and that, on the other, those alternative solutions would have hugely limited the detrimental effects on the shareholders and bondholders in question. They note the various checks carried out by the Commission services from October 2014 with regard to the ongoing rescue operations, in particular in favour of Banca Tercas and Banca delle Marche. It was apparent from the note published by the Bank of Italy on the crisis of Banca delle Marche that the Ministry of the Economy and Finance then engaged, with the technical support of the Bank of Italy, in a long consultation with the Commission, involving numerous email exchanges and numerous trips by Italian officials to Brussels, since the Italian authorities were convinced that the categorisation as State aid was unfounded and that it was possible to convince the Commission of that. Notwithstanding those attempts by the Italian authorities to establish lawfulness, the Commission sent several letters with an increasingly harsh tone, including the iterative warning that granting such support to Banca delle Marche would require giving it prior notification and waiting for its decision. According to the applicants, as stated by the Bank of Italy in its note, ‘the [Commission] services stubbornly maintained their refusal to approve the intervention of the FITD, even in a form, such as last envisaged, allowing for burden sharing, which, in any event, would have been a much less damaging solution than that which ultimately prevailed’. That approach was ‘officially confirmed at the highest level in the letter from EU Commissioners Mr Hill and Ms Vestager of 19 November 2015’.
47 The applicants consider that the unlawful position adopted by the Commission was such as to have a paralysing effect on the action of the Italian authorities. As stated by the Bank of Italy in its note referred to in paragraph 46 above, it would have been essential to obtain prior approval from the Commission for the intervention envisaged by the FITD, the implementation of which would have otherwise led to proceedings involving the Commission being brought before the EU Courts, with all the associated immediate negative effects. By its action, the Commission thus prevented the rescue of Banca delle Marche despite the efforts made by the Italian authorities.
48 The applicants explain that the effects of the rescue of Banca delle Marche by the FITD would have been different to those resulting from the mobilisation of the resolutions funds. Such a rescue would have been less detrimental to shareholders, who could have retained a participating percentage and continued to be shareholders with the expectation of the future recovery of the bank in question once it becomes profitable again. In their final report, Banca delle Marche’s extraordinary commissioners thus stated that the intervention ‘in a form, such as last envisaged, allowing for burden sharing, would, in any event, have been “a much less damaging solution than that which ultimately prevailed”’. Intervention taken by the FITD in October and November 2015 would have provided Banca delle Marche with the necessary resources to overcome the crisis by continuing activities, as confirmed by the final report and by the Bank of Italy itself, without sacrificing creditors and sacrificing shareholders to a lesser extent.
49 The Commission disputes the arguments put forward by the applicants. At the hearing, however, it declined to challenge the admissibility of the Bank of Italy’s note referred to in paragraph 46 above, in respect of which it took formal notice in the minutes of the hearing.
50 The Court observes, as a preliminary point, that the applicants claim, in essence, that the conduct and actions of the Commission that prevented the intervention envisaged by the FITD and, therefore, led to the adoption of the decision to proceed with the resolution of Banca delle Marche, are the result of the Commission’s misapplication of the concept of State aid, in that it wrongly considered that, notwithstanding their private nature, the interventions of the FITD amounted to measures that are imputable to the Italian State and involved State resources.
51 It must be observed that the Commission’s letters and provisional position taken during the preliminary examination phase relating to the situation of Banca delle Marche, as set out in paragraph 7 et seq. above, contain no legal assessment of the criteria inherent in the concept of State aid.
52 Thus, in the first place, in the request for information of 10 October 2014, the Commission merely noted that it was conceivable that the interventions envisaged by the FITD in favour of Banca Tercas and Banca delle Marche constitute State aid (see paragraph 7 above).
53 In the second place, in its letter of 18 December 2014, the Commission merely informed the Italian authorities that the support measure envisaged by the FITD in favour of Banca delle Marche was likely to constitute State aid and that, if the Bank of Italy considered authorising such a measure, those authorities would have to notify the measure in question before its approval, in accordance with Article 108(3) TFEU (see paragraph 8 above).
54 In the third place, in its letter of 21 August 2015, concerning, in particular, procedure SA.39543 relating to the Banca delle Marche, the Commission merely drew attention to the possibility that the intervention envisaged amounted to State aid and requested the Italian authorities to provide it with updated information in that regard and to refrain from implementing any measure of the FITD before notifying it and receiving a decision from the Commission (see paragraph 10 above).
55 In the fourth place, by the letter of 19 November 2015, that is to say just one day before the Italian authorities notified the Commission of the initiation of the resolution procedure in respect of Banca delle Marche, on 21 November 2015 (see paragraph 18 above), EU Commissioners Mr Hill and Ms Vestager informed the Italian authorities only of their interpretation of the joint requirements laid down by Directives 2014/49 and 2014/59 and the State aid rules. More specifically, they drew attention to the fact that the use of a deposit guarantee scheme to recapitalise a bank, under Article 11(3) of Directive 2014/49, was subject to the application of State aid rules, while acknowledging that if the use of the deposit guarantee scheme were not classified as State aid, but rather as a purely private intervention, it would not lead to a resolution under that directive (see paragraphs 17 and 18 above).
56 It follows from the foregoing that the position taken by the Commission before the initiation of the resolution procedure in respect of Banca delle Marche was merely procedural in nature, reminding the Italian authorities of the need to give prior notification and not to implement possible aid measures in favour of that bank in particular. The position taken did not concern either a specific measure – since no measure had yet been clearly defined or notified – or the way in which the Commission would interpret the concept of aid within the meaning of Article 107(1) TFEU in that regard.
57 It is true that the documents provided by the Bank of Italy, subsequent to the events referred to in paragraphs 52 to 55 above, show that the latter was convinced that the Commission services considered that the interventions of the FITD in favour of a failing bank were likely to constitute State aid, in particular in so far as they were imputable to the Italian State and involved resources controlled by the Italian State. In its provisional valuation of the conditions for initiating a resolution procedure in respect of Banca delle Marche, the Bank of Italy noted, in essence, that the Commission would have to be notified of any support measure taken by the FITD in favour of Banca delle Marche and the Commission’s prior authorisation would have to be sought with regard to the compatibility of such a measure with EU State aid rules (see paragraph 19 above). Furthermore, the testimony of one of its collaborators and its note on the crisis of Banca delle Marche show that, during the administrative procedure, the Commission services had stated that the support measures of the FITD constituted State aid, in particular on the grounds that its resources amount to State resources or are public in nature. The record of that testimony thus shows that, unlike the Italian authorities and the Bank of Italy, the Commission considered that the interventions of the FITD were to be treated as State aid by classifying its resources as public funds (see paragraph 24 above). Contrary to the Commission’s submissions, the content of that testimony is confirmed by the Bank of Italy’s note on the crisis of Banca delle Marche, in which it is clearly stated that the Italian authorities and the Bank of Italy failed to convince the Commission services that the interventions planned by the FITD in favour of Banca Tercas and Banca delle Marche could not be classified as State aid (see paragraph 26 above).
58 However, it does not follow from that evidence that, at the relevant stage, that is to say immediately before the Bank of Italy and the Ministry of the Economy and Finance adopted, in the exercise of their competences and margin of discretion (see, to that effect, judgment of 16 December 2020, Council and Others v K. Chrysostomides & Co. and Others, C‑597/18 P, C‑598/18 P, C‑603/18 P and C‑604/18 P, EU:C:2020:1028, paragraphs 106 to 108), the decision to initiate the resolution procedure in respect of Banca delle Marche, the Commission, for the reasons set out in paragraph 57 above, threatened the Italian authorities that it would block or prohibit any interventions taken by the FITD in favour of Banca delle Marche in the light of Article 107 TFEU or applied pressure in that regard.
59 In that regard, the applicants cannot rely on the decision to initiate the formal investigation procedure relating to the intervention of the FITD in favour of Banca Tercas, adopted on 27 February 2015 and, therefore, several months before the resolution procedure in respect of Banca delle Marche was initiated, in which the Commission considered that that intervention met the criteria used to demonstrate immutability to the State and State resources (see paragraphs 45 to 61 of that decision to initiate the resolution procedure and paragraph 9 above). Unlike the support measures in favour of Banca Tercas, before the adoption of the resolution decision in respect of Banca delle Marche, there was no definite plan for intervention by the FITD with respect to the Banca delle Marche, no request for authorisation in respect of such a plan made to the Bank of Italy (see paragraph 13 above), no formal notification of that plan, or any other reason for the Commission to initiate the formal investigation procedure in that regard. In those circumstances, at that stage, it was impossible for the Commission to know with sufficient certainty whether the intervention envisaged by the FITD in favour of Banca delle Marche was likely to meet the criteria of a State aid measure.
60 To the contrary, it is apparent from the provisional valuation carried out by the Bank of Italy in accordance with the conditions for initiating a resolution procedure (see paragraph 19 above) that the decisive elements in favour of that decision were the fact that Banca delle Marche was failing, as evidenced by total losses of EUR 1.445 billion and a deficit of EUR 1.432 billion as at 30 September 2015, and the fact that, during the extraordinary administration procedure, it had not been possible to decide measures by the private sector capable of resolving its crisis situation. The Bank of Italy thus pointed out that the intervention of the FITD had proven to be impractical and unsuited for the rapid resolution of the crisis. In that context, as stated by the Bank of Italy, the fact that such an intervention would have required the prior authorisation of the Commission under the rules on State aid certainly constituted an additional obstacle to such a rapid resolution, but, in the light of the still incomplete nature of the planned intervention by the FTID in favour of Banca delle Marche (see paragraph 59 above), it was not decisive in itself for the resolution decision ultimately adopted by those authorities. Furthermore, since the Bank of Italy indicated that that intervention had been submitted to the Commission, but could not be implemented in the absence of a prior positive assessment by the Commission, it was clearly referring to the note entitled ‘Solution for the Banca delle Marche Group’ (see paragraph 14 above), from which it suffices to note that submission to the Commission cannot be treated as a formal notification of a definite and practical intervention plan that could have been prohibited or authorised by it.
61 In the first place, that assessment is confirmed by the fact that on 8 October 2015 the FITD had only established the key elements of a second measure of support for Banca delle Marche, which consisted of a capital injection into that bank in the amount of EUR 1.2 billion, accompanied by a restructuring plan, in respect of which it informed the Bank of Italy by letters of 9 and 15 October 2015. In its letter of 9 October 2015, the FITD thus stated that, in accordance with those key elements, first, its intervention would take place only after the transposition of Directive 2014/59 into national law, and after the approval by the Bank of Italy of the amendments to its articles of association necessary for its implementation and, second, the specific terms of its intervention would be submitted to the Board of the FITD after the structure of the equity transaction had been defined, in particular, having regard to the fact that the intervention would be carried out through funding provided by a consortium of banks under market conditions (see paragraph 13 above). Therefore, as the Commission maintains, the specific terms and methods of such an intervention were still far from being decided by the internal bodies of the FITD, which is why, unlike the FITD’s first intervention that was proposed but not carried out (see paragraph 6 above), no authorisation from the Bank of Italy was requested in the letter in question or subsequently thereafter. Unlike the letter sent by the FITD to the Bank of Italy on 12 September 2014 relating to the planned intervention with the support of FonSpa, its letters of 9 and 15 October 2015 cannot be interpreted as including such a request for authorisation. In response to a specific question asked in that regard by the Court during the hearing, the applicants pointed out that, at that stage, the consultancy firm engaged had already validated the intervention envisaged by the FITD and that, by those letters, it had informed the Bank of Italy that it was ready to implement it, but they were not able to identify a passage in those letters which could have been understood as being a request for authorisation.
62 In the second place, even before the transposition into national law of Directive 2014/59 by the adoption of Legislative Decree No 180/15, on 16 November 2015, which, according to the FITD, made such support measures possible, by letter of 4 November 2015, Banca delle Marche’s extraordinary commissioners informed the Bank of Italy of the imminent suspension of payment by that bank and stated that they feared that its rescue could not take place in good time given its financial situation. That in itself indicates the impossibility of a rapid intervention by the FITD, irrespective of the possible need to notify the Commission of it in advance under Article 108(3) TFEU (see paragraphs 14 and 16 above). That impossibility is confirmed by the fact that the extraordinary meeting of the banks belonging to the FITD consortium approved the amendments to the articles of association of FITD, making such an intervention possible in accordance with the new regulatory framework, only on 26 November 2015 (see paragraph 21 above), that is to say five days after the adoption of the resolution decision in respect of Banca delle Marche.
63 In the third place, contrary to the applicants’ views, neither the testimony of one of the Bank of Italy’s collaborators, nor its note on the crisis of Banca delle Marche (see paragraphs 24 and 26 above) are capable of challenging that assessment. Those documents were drawn up a long time after the resolution decision in respect of Banca delle Marche and at a time when, in particular, claims for damages had already been brought by the applicants against the Bank of Italy before the Italian courts. Furthermore, the note on the crisis of Banca delle Marche contains an alleged refusal by the Commission to accept the planned recapitalisation of Banca delle Marche by the FITD, which was ‘officially confirmed at the highest level in the letter from EU Commissioners Mr Hill and Ms Vestager of 19 November 2015’, even though such content cannot be attributed to that letter (see paragraph 55 above). In any event, it no longer appears plausible that the need to notify the Commission of such an intervention by the FITD, the specific terms and methods of which were not yet decided, in particular with regard to the type and level of involvement of its members, by the internal bodies of the FITD and by the competent authorities, by itself precluded the rescue of Banca delle Marche, as is apparent from part of that testimony. The Bank of Italy’s note on the crisis of Banca delle Marche does not support another interpretation. Whilst that note highlights the need to notify such a measure to the Commission, and to obtain its prior approval, it lacks consistency in that it fails to signal the importance of the crisis situation of that bank as at the beginning of November 2015, and as recorded in the provisional valuation carried out by the Bank of Italy which preceded and justified the resolution decision.
64 In the fourth place, that understanding is consistent with the judgments of the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court) and the Consiglio di Stato (Council of State) (see paragraphs 27 and 29 above), in respect of which the applicants claim, without any foundation, to have indicated, in essence, that the Bank of Italy’s decision to order the resolution of Banca delle Marche had not been ‘autonomous’ but ‘imposed’ by the Commission. The passages from those judgments relied on by the applicants merely recall, in substance, some of the facts set out in paragraphs 52 et seq. above without, however, making such a legal characterisation. Thus, the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court) did repeat the Bank of Italy’s words which ‘expressly stated in the operative part of the resolution that the intervention of the [FITD] [could not have] taken place because the Commission … was not in favour of it, in so far as it was not compatible with State aid rules and that the intervention of the [FITD] should have been formally submitted [to it] in advance for examination in order for it to verify compatibility with those rules’. However, contrary to the applicants’ submissions at the hearing in response to a question from the Court, that quotation does not indicate that the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court) took the view that the Bank of Italy no longer had any freedom of action solely because of the attitude adopted by the Commission. In its own assessment and legal characterisation of the facts, that court instead highlighted the various evidence and economic data which justified the conclusion that, at the time of the adoption of the resolution decision, Banca delle Marche was failing and that, therefore, its resolution was both reasonable and proportional. Moreover, as for the Consiglio di Stato (Council of State), in its judgment, having pointed out that, in accordance with its approach in the Banca Tercas case, the Commission classified the interventions of the FITD as State aid (paragraphs 8.3 and 8.4), it did not carry out an in-depth assessment of the elements of fact and law, but merely dismissed the evidence of a causal link between the failure to initiate rescue proceedings in respect of Banca delle Marche and alleged damage, as well as the fact of damage (paragraphs 8.5 and 9).
65 In the fifth place, the parallel proceedings concerning Banca Tercas demonstrate that, whilst the Italian authorities, the Bank of Italy and the FITD were convinced of both the necessity and possibility of rescuing Banca delle Marche, they could only follow the same contradictory approach as in that other case, which led to the adoption of the decision in respect of Banca Tercas, the judgment of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), and the appeal proceedings in Case C‑425/19 P. In that regard, it must be observed that the first intervention of the FITD in favour of Banca Tercas took place a long time before the transposition into national law of Directive 2014/59, such that it cannot decisively explain in itself the hesitation of the Italian private banking sector to offer support to Banca delle Marche. Furthermore, the Commission noted, without being contradicted by the applicants, that it had, in the meantime, signalled its agreement with the second intervention of the FITD in favour of Banca Tercas in the light of State aid rules, showing that it was not necessarily inclined to prohibit any such intervention, and that it was necessary to carry out an assessment on a case-by-case basis, without it being possible to apply the result of a specific assessment to another case.
66 In the sixth place, it must be recalled that, in the order of 13 November 2019, Commission v Italy and Others (C‑425/19 P, not published, EU:C:2019:980, paragraphs 17 to 21), the President of the Court dismissed the applicants’ request for leave to intervene in support of the forms of order sought by the applicants at first instance on the ground that they failed to justify the existence of an interest in the result of Case C‑425/19 P, within the meaning of the second paragraph of Article 40 of the Statue of the Court of Justice of the European Union. It held, inter alia, that the applicants had failed to establish the existence of a causal link between the position adopted by the Commission in the decision in respect of Banca Tercas, or even the initiation of the procedure leading to the adoption of that decision, and, on the other, the resolution of Banca delle Marche.
67 In the light of all the foregoing considerations, the applicants’ claim that the Commission’s alleged unlawful conduct prevented the rescue of Banca delle Marche, notwithstanding the efforts made by the Italian authorities, and was the effective and exclusive cause of the damage which they suffered cannot be upheld. The overall assessment of the relevant evidence supports the finding that, whilst that conduct played a certain role in the investigation process which led the Italian authorities to decide on the resolution of that bank, in so far as they considered that the requirement to notify the Commission in advance of a possible support measure in favour of that bank constituted an obstacle to the rapid resolution of the financial crisis facing Banca delle Marche, their decision of 21 November 2015 to initiate the resolution procedure in respect of Banca delle Marche, adopted in the exercise of their competences and discretion (see the case-law cited in paragraph 58 above), was no less autonomous, was not decisively influenced by the attitude of the Commission, and was essentially based on their finding relating to the failing nature of that bank, which constituted the determining cause of that resolution, within the meaning of the case-law (see, to that effect, judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 32).
68 In other words, the applicants are not in a position to establish to the requisite legal standard the plausibility of the counterfactual hypothesis according to which, in the absence of the Commission’s alleged unlawful conduct, the FITD, with the agreement of the Italian authorities and, in particular, the Bank of Italy, would have been able to rescue Banca delle Marche in November 2015.
69 It follows that, in the present case, the applicants have not established the existence of a causal link between the Commission’s alleged unlawful conduct and the alleged damage, which is sufficient to find that the conditions to incur non-contractual liability on the part of the European Union have not been met (see the case-law cited in paragraph 44 above).
70 With regard to the applicants’ request for measures of inquiry concerning the entirety of the administrative file relating to Case ‘Banca delle Marche (SA.39543 2014/CP)’, it need only be noted that the Court considers that it has sufficient information from the documents in the file to rule on the dispute and that the applicants should not be able to search, in that file, for documents which are unlikely to have any bearing on the Court’s finding that there is no causal link.
71 In those circumstances, the action must be dismissed without it being necessary to examine the other conditions required to incur non-contractual liability on the part of the European Union.
Costs
72 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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Fondazione Cassa di Risparmio di Pesaro, Montani Antaldi Srl, Fondazione Cassa di Risparmio di Fano, Fondazione Cassa di Risparmio di Jesi and Fondazione Cassa di Risparmio della Provincia di Macerata to pay the costs.
Delivered in open court in Luxembourg on 30 June 2021.
[Signatures]