Action brought on 25 September 2019 — Fondazione Cassa di Risparmio di Pesaro and Others v Commission

(Case T-635/19)

(2019/C 383/80)

Language of the case: Italian

Parties

Applicants: Fondazione Cassa di Risparmio di Pesaro (Pesaro, Italy), Montani Antaldi Srl (Pesaro), Fondazione Cassa di Risparmio di Fano (Fano, Italy), Fondazione Cassa di Risparmio di Jesi (Jesi, Italy), Fondazione Cassa di Risparmio della Provincia di Macerata (Macerata, Italy) (represented by: A. Sandulli and B. Cimino, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

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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;

—	order the European Commission to pay compensation for the damage caused to the applicants, estimated according to the criteria indicated below or in such other manner as the Court may deem appropriate;

—	order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicants rely on four pleas in law.

First plea in law, concerning the admissibility of the claim for damages.

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In this regard the applicants claim that the damage complained of is attributable to a European institution even though the resolution measures concerning Banca [delle] Marche were formally adopted by a national authority. In fact, the Banca d’Italia exercised no discretion in that regard, but acted on the basis of detailed instructions given by the European Commission. Moreover, because of the manner in which the Commission exercised its power, the applicants were deprived of the possibility of bringing an ordinary action for annulment before the General Court; therefore an action for damages was the only procedural route that could be taken.

Second plea in law, alleging a serious or manifest infringement of EU law.

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In this regard the applicants claim that the European Commission prevented the recapitalisation of Banca [delle] Marche by the F.I.T.D. on the grounds that the measure would constitute State aid. However, the F.I.T.D is a private undertaking which uses private resources and is not subject to the control of any public authority, as indeed the General Court recently found in the [joined cases Italy and Others v Commission (T-98/16, T-196/16 and T-198/16, EU:T:2019:167)]. It would have been, therefore, a perfectly lawful rescue according to market rules. The infringement is also shown to be serious and manifest in the light of the clear regulatory framework in that area, the established case-law of the European Courts and the lack of discretion on the part of the European Commission.

Third plea in law, concerning the existence of damage.

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In this regard the applicants claim that the conduct ascribed to the European Commission was the effective and exclusive cause of the damage which they have suffered. From the procedural documents, in fact, it is clear that: (i) the Italian Authorities pursued every possible alternative solution to the resolution of Banca delle Marche and the European Commission’s opposition made each of those solutions impossible; and (ii) those alternative solutions would have hugely limited the detrimental effects on shareholders and bondholders.

Fourth plea in law, concerning the assessment of the damage.

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In this regard the applicants claim that the damage should be estimated taking into consideration the residual value that would have been retained by the subordinated bonds and shares which the applicants held in Banca [delle] Marche if, instead of the resolution taking place, the F.I.T.D had completed the recapitalisation of that bank.