Appeal brought on 3 September 2021 by Fondazione Cassa di Risparmio di Pesaro and Others against the judgment of the General Court (Third Chamber) delivered on 30 June 2021 in Case T-635/19 Fondazione Cassa di Risparmio di Pesaro and Others v Commission
(Case C-549/21 P)
Language of the case: Italian
Parties
Appellants: 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 (represented by: A. Sandulli, S. Battini and B. Cimino, avvocati)
Other party to the proceedings: European Commission
Form of order sought
The appellants claim that the Court should:
set aside the judgment of 30 June 2021 delivered by the Third Chamber of the General Court of the European Union in Fondazione Cassa di Risparmio di Pesaro and Others v Commission (T-635/19);
consequently, as claimed at first instance, find and declare that the European Commission is non-contractually liable for having prevented the recapitalisation of the Banca delle Marche by the Fondo Interbancario italiano per Tutela dei Depositi (Italian Interbank Deposit Protection Fund) (‘the F.I.T.D.’) by giving unlawful instructions to the Italian national authorities;
accordingly, order the European Commission to pay compensation for the damage caused to the appellants, estimated according to the criteria indicated in the appeal or in such other manner as the Court may deem appropriate;
in any event, refer the case back to the General Court for reconsideration of the remaining pleas in law at first instance;
order the European Commission to pay the costs of the proceedings at first instance and on appeal.
Grounds of appeal and main arguments
1. First ground of appeal: manifest distortion of, and failure to have regard to, the facts and the clear sense of the evidence adduced at first instance, failure to examine a crucial fact, and illogical and incorrect reasoning.
According to the General Court, the documentary evidence is not sufficient to establish that the decision of the Italian authorities was decisively influenced by the Commission or, conversely, to show that those authorities did not take an autonomous decision, on the basis of their own assessments regarding timings, methods and requirements, to resolve the Banca delle Marche. In essence, in the General Court’s view, the resolution of the Banca delle Marche by the Italian authorities was determined essentially by its failure. On that ground, as it merely hindered/prevented the adoption of a rescue measure by the F.I.T.D., the Commission cannot be considered responsible in respect of the decision to resolve the Banca delle Marche. Such an interpretation is a manifest distortion of the clear sense of the evidence. All the facts, the evidence put forward, the indicia that came to light and the confidential documents obtained during the course of the proceedings appear unambiguous: the Italian authorities stressed, at every stage, the real and incontrovertible influence of the specific instructions received from the European Commission. It is clear from the documents submitted at first instance that: (i) the Italian authorities attempted to pursue every possible option other than resolving the Banca delle Marche, but the European Commission’s opposition made it impossible to pursue each of those options; and (ii) those options would have significantly limited the detrimental effects on shareholders and bondholders.
2. Second ground of appeal: infringement and/or incorrect application of the second paragraph of Article 340 TFEU and, more specifically, of the requirements, set by EU law, for establishing whether there is a causal link; infringement of the principle of effectiveness and proximity of evidence.
In establishing whether there was a causal link, the General Court manifestly confused the concepts of ‘determining’ and ‘exclusive’ causes of the damage. It is possible that the Commission’s conduct was not the ‘exclusive’ cause of the resolution of the Banca delle Marche. However, as documented and shown extensively by the appellants in the proceedings at first instance, the Commission’s conduct was – certainly – a ‘determining’ cause of that resolution. Accordingly, in ruling out the existence of a causal link only because the challenged conduct of that European institution was not the ‘exclusive’ cause of the damage complained of by the appellants as applicants at first instance, the General Court manifestly erred in law in its interpretation of the concept of a ‘sufficiently direct causal link’. As a result, the appellants claim that the General Court infringed and/or incorrectly applied the second paragraph of Article 340 TFEU, as well as the principle of effectiveness and proximity of evidence.
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