Appeal brought on 26 February 2024 by BdM Banca SpA, formerly Banca Popolare di Bari SpA, against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 20 December 2023 in Case T-415/21, Banca Popolare di Bari v European Commission
(Case C-145/24 P)
Language of the case: Italian
Parties
Appellant: BdM Banca SpA, formerly Banca Popolare di Bari SpA (represented by: A. Zoppini, D. Gallo and G. Parisi, avvocati)
Other party to the proceedings: European Commission
Form of order sought
The appellant claims that the Court should:
(i) annul the judgment of the General Court delivered on 20 December 2023 in Case T-415/21, EU:T:2023:833, in so far as the General Court:
held that the action was inadmissible as regards the damage linked to the reduction in staff numbers;
did not find that the Commission’s unlawful conduct constituted a sufficiently serious breach;
did not give a ruling on the existence or quantum of the damage incurred by the bank and found that the causal link between the Commission’s unlawful conduct and the damage incurred by the bank was insufficient;
(ii) in accordance with Article 61 of the Statute of the Court of Justice of the European Union:
give final judgment in the case and, on the basis of all of the arguments put forward in the pleadings at first instance and in relation to the existence and quantum of damage, order the European Union, represented by the Commission, to pay the appellant EUR 203.3 million in compensation for the material damage, an appropriate amount of compensation for the non-material damage caused by the decision, to be calculated equitably, and the costs incurred at first instance and on appeal.
in the alternative, refer the case back to the General Court for a ruling on the appellant’s claim.
Grounds of appeal and main arguments
In support of its appeal, the appellant relies on the following grounds:
I Infringement of the second sentence of Article 46(1) of the Statute of the Court of Justice of the European Union in that the General Court held that the action was inadmissible as regards the damage linked to the reduction in staff numbers. More specifically, the General Court applied that provision incorrectly, because the head of damage claimed by BdM Banca SpA could clearly not be considered to have been instantaneous since it materialised only with the passage of time as the reduction in staff numbers in the credit institution was actually implemented.
II Infringement of Article 340(2) TFEU, in so far as the General Court did not find that the Commission’s unlawful conduct constituted a sufficiently serious breach. More specifically, the General Court should have found that the Commission had no discretion in applying Article 107(1) TFEU and, accordingly, should have found and declared that there had been a ‘sufficiently serious breach’ of that provision by the Commission. In any case, the General Court would not have been able to rely on the legal and factual complexity of the particular case giving rise to the decision 1 as a criterion for assessing whether there was a sufficiently serious breach, first, because the criterion concerning that complexity is a feature solely of the case-law relating to appeals against decisions of the Commission, whereas it is doubtful that it can be used in an action for extra-contractual liability and it is not, in fact, apparent that the Court of Justice has ever used it in that context. Further, and above all, if it were acknowledged that such reasoning could also be used in relation to actions for extra-contractual liability, the appellant argues that that alleged complexity had already been ruled out, first by the General Court in its judgment of 19 March 2019 and, subsequently, by the Court of Justice in its judgment of 2 March 2021.
III Infringement of Article 340(2) TFEU and Article 91(e) and Article 96 of the Rules of Procedure of the General Court of the European Union, in so far as the General Court found that the causal link between the Commission’s unlawful conduct and the damage incurred by BdM Banca SpA was insufficient. More specifically, the appellant submits that the General Court infringed Article 340(2) TFEU in ruling out the existence of a causal link, because BdM Banca SpA had not distinguished its own customers from those of Tercas, given that that circumstance was irrelevant to the present case; this is because it was not possible, following the merger of Tercas into BdM Banca SpA (at that time, Banca Popolare di Bari), to distinguish the clients of one from the other. Moreover, the General Court incorrectly applied Article 340 in finding that the voluntary intervention of the Fondo interbancario di tutela dei depositi (Interbank Deposit Protection Fund, Italy, ‘the FITD’) in favour of Tercas was incapable of showing that there was a direct causal link, given that the replacement measures that subsequently followed, appeared, from the perspective of BdM Banca SpA’s customers, much more complicated than the situation forecast in the previous business plan and, therefore, had created an environment, in addition to the extensive media coverage that ensued, that led to perceived uncertainty regarding the successful merger of Tercas and Caripe and, more generally, regarding the ability of BdM Banca SpA to pursue its strategic objectives in sound economic and financial conditions, as submitted and substantiated in the documents provided during the proceedings at first instance brought by that bank. The appellant further submits that the General Court then drew incorrectly on aspects of its previous judgment in Fondazione Cassa di Risparmio di Pesaro, where the Commission had merely questioned the existence of aid, but had not adopted a decision, whereas in the present case the Commission had adopted a binding decision. The General Court further erred where it found that there were other factors that contributed to causing the damage incurred by BdM Banca SpA, beyond the decision, since the existence of other events that may have contributed to causing the damage claimed by BdM Banca SpA did not negate the Commission’s liability and the existence of a causal link, capable, at most, of affecting the quantum of compensation. Finally, the appellant submits that the General Court’s finding that the technical reports were fundamentally unreliable, because they were based on information provided by BdM Banca SpA, is not substantiated, since, failing other evidence provided by the Commission and given that it did not decide to order an expert report as provided for under the Rules of Procedure, it is clear that the General Court should have relied on the technical report produced by the appellant.
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1 Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)) (OJ 2016 L 203, p. 1).