12.2.2018   

EN

Official Journal of the European Union

C 52/31

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Annul the contested acts, in particular:

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On those grounds, they request the General Court to make a ruling:

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If the Court considers that the applicants’ claims are well founded, order the ECB, under the provisions of the articles 268 TFEU and 340 TFEU, to pay the amount of EUR 4 582 825,80, plus interest for late payment, calculated at the legal rate, which accrues until actual payment, together with such other expenses and compensation for damages arising after the interventions made;

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However, taking into account the provisions of Article 280 TFEU and that the acts ‘of the European Central Bank which impose a pecuniary obligation on persons other than States, shall be enforceable’, as provided for in Article 299 TFEU, the General Court must require the defendant to request that such amounts be settled by the BCP;

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Taking into account that the national central bank is the ‘administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings’, in accordance with the provisions of Article 11(1)(b) of Directive 2005/29/EC, and of Articles 81(1) and 83(1) of Directive 2007/64/EC, and of Article 96(1)(b) — ‘Additional penalties’ — of DL [decree-law] 317/2009, the defendant’s agent must request the BCP to ‘immediately’ credit the abovementioned amounts to the accounts of the applicants.

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The defendant:

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Notwithstanding that, under Article 256(1) TFEU, the General Court does not have jurisdiction if the national central bank does not acknowledge that it ‘failed to fulfil an obligation under the Treaties, that bank shall be required to take the necessary measures to comply with the judgment of the Court, in accordance with the provisions of Article 271(d) TFUE the question must be referred to the Supreme Court;

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Even though it is also not a matter for the General Court, if the ECJ considers that the applicants’ action is well founded, in accordance with the provisions of Article 264 TFEU, the General Court must propose to the Supreme Court to annul the decision of the national central bank, which decision was adopted by the defendant and, having regard to the provisions of Article 41(1)(c) of the CFREU, of the second paragraph of Article 296 TFEU and Article 11(3)(c) of Directive 2005/29/EC, a substantiated decision must be adopted;

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The applicants request that the defendant and the Court serve notice and request the Portuguese State/Prosecution Service/OPG to take action and to rule on the acts committed by BCP;

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The applicants call on the defendant to report the present case to OLAF;

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In accordance with Article 134(1) of the Rules of Procedure of the General Court, the applicants seek reimbursement of the costs of the proceedings, which must be duly assessed.

1.

Infringement of the obligation to state reasons laid down in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, in the second paragraph of Article 296 TFEU and in the Article 11(3) of Directive 2005/29/EC. (1)

2.

Independently of the ‘burglary’ theft of the ‘safe’, BCP knew, or ought to have known, that the financial system was being used for the purpose of money laundering and, consequently, the credit institution was aware that there was fraud or tax evasion contributing to the loss of EU budget revenue. Those acts are ‘unlawful, undermine the Union’s financial interests’ and fall within ‘overriding reasons of public interest’ which ‘constitute a legitimate objective capable of justifying an impediment to the freedom to provide services’.

3.

Irrespective of the way in which an amount of more than EUR 1 000 000 has been stolen from the ‘safe’, detriment is caused to the ‘financial interests of the Union’ and, in particular, to the revenue which supports the ‘EU budget, as well as [revenue] covered by the budget of the institutions, bodies, offices and agencies, and by the budgets managed and controlled by them’; therefore, these are also acts which constitute an ‘irregularity’ due to ‘infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the European Union or budgets managed by it, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities or by an unjustified item of expenditure’.

4.

Where a credit institution, a Member State/national central bank, the European Central Bank or the Member State/Prosecution Service/OPG are aware of such breaches or practices, allow them and do not condemn them, they encourage non-compliance with the provisions of Article 310(5) and (6) TFEU and Article 325(1), (2) and (3) TFEU and allow the credit institution in question to perform acts constituting an ‘irregularity’ due to infringement of the provisions of Article 1(2) of Regulation No 2988/95. (2)

5.

By adopting the act by which it rejected the application calling on it to take action, the defendant found a way, inter alia:

6.

Breach of the duty of impartiality, misuse of powers and breach of essential procedural requirements by the defendant’s agent, Banco de Portugal.