Judgments nº T-552/19 of Tribunal General de la Unión Europea, June 25, 2020

• Resolution Date: June 25, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-552/19

(Access to documents - Decision of the ECB to place Banca Carige SpA under temporary administration - Refusal to grant access - Default procedure)

In Case T-552/19,

Malacalza Investimenti Srl, established in Genoa (Italy), represented by P. Ghiglione, E. De Giorgi and L. Amicarelli, lawyers,

applicant,

v

European Central Bank (ECB), represented by F. von Lindeiner and M. Van Hoecke, acting as Agents, assisted by D. Sarmiento Ramírez-Escudero, lawyer,

defendant,

APPLICATION under Article 263 TFEU for annulment of ECB Decision LS/LdG/19/185 of 12 June 2019 refusing access to several documents relating to Decision ECB-SSM-2019-ITCAR-11 of the Governing Council of the ECB of 1 January 2019 placing Banca Carige SpA under temporary administration,

THE GENERAL COURT (Fourth Chamber),

composed of S. Gervasoni, President, P. Nihoul (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 The applicant, Malacalza Investimenti Srl, is a company incorporated under Italian law. It is the main shareholder of Banca Carige SpA, of which it directly holds 27.555% of the share capital.

2 On 20 September 2018, Banca Carige’s board of directors was renewed by the general meeting of the shareholders. On the basis of its shareholding in that company, the applicant appointed the majority of the members of the board of directors.

3 On 22 December 2018, following a new general meeting of Banca Carige’s shareholders at which the proposal to increase the share capital to EUR 400 million was rejected, a number of members of the board of directors resigned.

4 By decision of 1 January 2019 (‘the decision of 1 January 2019’), the European Central Bank (ECB) placed Banca Carige under temporary administration in accordance with the Italian law implementing Article 29 of 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). It thus ordered the dissolution of the administrative and supervisory bodies of that company and appointed three temporary administrators and a three-member supervisory committee.

5 The decision of 1 January 2019 was not published and the reasons underlying it are not known to the applicant. The only form of publicity adopted by the ECB is a press release of 2 January 2019 announcing the names of Banca Carige’s temporary administrators and the members of its supervisory committee and describing in general terms the concept of temporary administration and the duties of the temporary administrators.

6 On 15 January 2019, the applicant submitted to the ECB a request for access under Article 6 of Decision 2004/258/EC of the ECB of 4 March 2004 on public access to ECB documents (OJ 2004 L 80, p. 42), concerning:

- the decision of 1 January 2019 and its annexes;

- the documents, relating to the period from 30 November 2018 to 2 January 2019, containing other decisions taken by the ECB in relation to Banca Carige, including the draft decision on the capital conversion plan with its tables and annexes, communications between the ECB and the board of directors of that company or one or more of its members, and the minutes of meetings between the ECB and the board of directors of that company or one or more of its members.

7 On 14 February 2019, the ECB informed the applicant that the period for replying to the request for access to documents had been extended by 20 working days, in accordance with Article 7(3) of Decision 2004/258, because of an increased workload.

8 On 17 February 2019, the applicant replied to the ECB, disputing the compatibility of the extension of the period for processing its application with Article 7(3) of Decision 2004/258.

9 On 19 February 2019, the ECB replied to the applicant, stating that Article 7(3) of Decision 2004/258 had been invoked to extend the period for processing the applicant’s request for access to documents in view of the receipt of numerous requests concerning Banca Carige and consultations with the Bank of Italy on the same issue.

10 By decision of 13 March 2019, the ECB rejected the request for access in its entirety.

11 On 8 April 2019, the applicant submitted a confirmatory application to the Executive Board of the ECB pursuant to Article 7(2) of Decision 2004/258, requesting a review of the ECB’s decision of 13 March 2019. In that confirmatory application, however, it excluded from its request for access the capital conversion plan with its tables and annexes, which it had received in the meantime from the temporary administrators of Banca Carige.

12 The applicant pointed out that extracts from a document presented as the decision of 1 January 2019 had been published, in the form of photographs, on the website of an Italian daily newspaper. It submitted that, if those photographs did indeed reproduce that decision, the extracts contained in them could no...