Official Journal of the European Union

C series

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C/2024/5618

30.9.2024

(Case C-557/24)

(C/2024/5618)

Language of the case: Italian.

Parties

Appellants: Malacalza Investimenti Srl, Vittorio Malacalza (represented by: S. Carbone, A. D’Angelo, L. Boggio, avvocati)

Other parties to the proceedings: European Central Bank, European Commission

Form of order sought

The appellants claim that the Court should:

—set aside the judgment of the General Court in case T-134/21, handed down on 5 June 2024 and notified on the same date;

—given that the General Court did not ‘examine the other conditions which must all be met in order for the European Union to incur non-contractual liability’, refer the case back to the General Court for judgment within the meaning of Article 61 of the Statute of the Court of Justice, in accordance with the principles of law to be established by the Court of Justice, granting all of the appellants’ claims for damages against the ECB, pursuant to Article 340(3) TFEU, made in the action brought before the General Court on 3 March 2021, and therefore order the ECB to pay Malacalza Investimenti s.r.l EUR 870 526 670 or any other greater or lesser amount which is deemed fair, to be determined, if necessary ex aequo et bono and Vittorio Malacalza EUR 4 546 022 or any other greater or lesser amount which is deemed fair, to be determined, if necessary ex aequo et bono;

or, in the alternative to referral back to the General Court,

—itself grant all of the appellants’ claims for damages against the ECB made in the action brought before the General Court on 3 March 2021 in the same amounts as set out above, pursuant to Article 340(3) TFEU, after admitting the applications for measures of inquiry set out in the form of order sought in that action as well as the applications for measures of inquiry and requests for measures of organisation of procedure made by applications of 29 September 2021 and 20 December 2021;

—order the ECB and the intervener, the European Commission, to pay the costs of both appellants in respect of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

The appellants put forward seven grounds of appeal regarding the substance that pertain to a number of infringements of principles and rules of EU law as well as to both the respective provisions transposing them into Italian law and further provisions of national law applicable to the supervisory activities of the ECB. As regards the facts, it should be noted that the ECB participated – including by failing to act when it should have done so in relation to providing information to shareholders and communicating with the public on behalf of the management of Banca Carige – in creating a picture of the bank’s situation and prospects on the basis of which shareholders felt confident to invest significant resources to purchase Carige shares and subscribe to increases in capital and pay for them, then undermined that confidence by means of its conduct, which took various forms, and by adopting contradictory decisions, imposing unjustified, disproportionate and also, in other respects, unlawful measures, which form part of overall unlawful and harmful conduct. Reference is made in particular to: (i) the confidence in Carige’s situation created by the increases in capital of 2014 and 2015; (ii) the subsequent undermining of that confidence as a result of ECB’s conduct and measures (inter alia by means of early intervention measures); (iii) the unlawfulness of those measures and the unlawfulness of the overall conduct of which they are part; (iv) the confidence in Carige’s situation created by the increase in capital of 2017; (v) the subsequent undermining of that confidence as a result of ECB’s conduct and measures, requiring further increases of the bank’s capital; (vi) the unlawfulness of those measures (including placing the bank under special administration in 2019, naming – in addition to this – special administrators that were not free of conflicts of interest, as well as authorising, during the period of special administration, an increase in capital with the exclusion of pre-emption rights) and the unlawfulness of the overall conduct of which they form part; (vii) undue influence and interference in the Bank’s governance processes, promoting an autocratic management by the managing directors, contrary to company law rules and the normal order of a collegiate administrative body, in order to ensure the implementation of improperly imposed measures, and also hindering a response to the management’s unlawful and harmful managerial practices, and creating weakness for the Bank.

First, the appellants criticised the decision of the General Court for having failed to take cognisance – contrary to principles well established in case-law – of the fact that some of the infringements attributed to the ECB constituted sufficiently serious infringements of the provisions relied on, limiting the investigation to only some of the facts alleged to be unlawful, thus unreasonably fragmenting the claims for compensation. The appellants then set out the seven grounds of appeal arguing that they are based on the errors committed by the General Court in the application of the principles of protection of property, proportionality, good administration, equality, impartiality and equal treatment, transparency, good faith and protection of legitimate expectations, with particular regard to Articles 17, 20 and 41 of the Charter of Fundamental Rights of the European Union, Article 5(4) of the Treaty on the European Union, as well as a number of provisions of secondary EU law and Italian banking and company law which the ECB failed to respect.

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ELI: http://data.europa.eu/eli/C/2024/5618/oj

ISSN 1977-091X (electronic edition)

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