CELEX:62023CO0103: Ordonanța Curții (Camera a zecea) din 3 iunie 2024.#Trasta Komercbanka AS împotriva Băncii Centrale Europene.#Cauza C-103/23 P.

ORDER OF THE COURT (Tenth Chamber)

3 June 2024 (*)

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Article 19 of the Statute of the Court of Justice of the European Union – Representation of the parties – No independent representative – Manifest inadmissibility)

In Case C‑103/23 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 February 2023,

Trasta Komercbanka AS, established in Riga (Latvia),

appellant,

the other parties to the proceedings being:

Ivan Fursin, residing in Kyiv (Ukraine),

C & R Invest SIA, established in Riga,

Figon Co. Ltd, established in Nicosia (Cyprus),

GCK Holding Netherlands BV, established in Amsterdam (Netherlands),

Rikam Holding SA, established in Luxembourg (Luxembourg),

represented by O. Behrends, Rechtsanwalt,

applicants at first instance,

European Central Bank (ECB), represented by F. Bonnard, C. Hernández Saseta and A. Pizzolla, acting as Agents,

defendant at first instance,

Republic of Latvia,

European Commission, represented initially by A. Nijenhuis, A. Steiblytė and D. Triantafyllou, and subsequently by A. Steiblytė and D. Triantafyllou, acting as Agents,

interveners at first instance,

THE COURT (Tenth Chamber),

composed of Z. Csehi, President of the Chamber, M. Ilešič and I. Jarukaitis (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By its appeal, Trasta Komercbanka AS asks the Court of Justice to set aside the judgment of the General Court of the European Union of 30 November 2022, Trasta Komercbanka and Others v ECB (T‑698/16, EU:T:2022:737; ‘the judgment under appeal’), by which the General Court dismissed the action brought by that company and the other applicants at first instance seeking the annulment of Decision ECB/SSM/2016 – 529900WIP0INFDAWTJ81/2 WOANCA-2016-0005 of the European Central Bank (ECB) of 11 July 2016 withdrawing the authorisation of Trasta Komercbanka for access to the activities of a credit institution (‘the decision at issue’).

 Legal context

2        Under Article 19 of the Statute of the Court of Justice of the European Union:

‘The Member States and the institutions of the [European] Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.

The States, other than the Member States, which are parties to the Agreement on the European Economic Area and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in same manner.

Other parties must be represented by a lawyer.

Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.

…’

 The background to the dispute and the decision at issue

3        The background to the dispute, set out in paragraphs 2 to 10 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

4        Trasta Komercbanka is a Latvian credit institution, which is small in size and significance, providing financial services under an authorisation granted to it in September 1991 by the Latvian Financial and Capital Markets Commission (‘the FCMC’).

5        Mr Ivan Fursin, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA were shareholders of the appellant (‘the shareholders’).

6        On 5 February 2016, the ECB received a proposal from the FCMC to withdraw the appellant’s authorisation for access to the activities of a credit institution, in accordance with Article 14(5) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

7        On 3 March 2016, the ECB adopted Decision ECB/SSM/2016 – 529900WIP0INFDAWTJ81/1 WOANCA-2016-0005, by which it withdrew the appellant’s authorisation to take up the business of a credit institution and rejected its application for suspension of the effects of that decision for one month (‘the first decision’).

8        On 14 March 2016, at the request of the FCMC, the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District), Latvia) initiated liquidation proceedings in respect of the appellant and appointed Mr Armands Rasa as liquidator.

9        On 17 March 2016, a notice of the opening of liquidation proceedings in respect of the appellant and of the replacement of its management by the liquidator was published in the Latvijas Vēstnesis (Latvian Official Journal).

10      On 3 April 2016, the ECB’s Administrative Board of Review received a request for review of the first decision. By an opinion of 30 May 2016, that Board considered that the procedural and substantive infringements alleged by the appellant concerning that decision were unfounded and that that decision was sufficiently motivated and proportionate.

11      On 13 May 2016, the lawyer who represented Trasta Komercbanka and the shareholders during the administrative procedure brought, on their behalf, an action for annulment of the first decision, registered as Case T‑247/16.

12      On 11 July 2016, the ECB adopted the decision at issue. That decision has, from the date of its adoption, replaced the first decision.

 Events subsequent to the bringing of the application at first instance

13      By order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), the General Court, first, held that there was no need to adjudicate on the appellant’s action, referred to in paragraph 11 above, for annulment of the first decision, because the appellant’s lawyer no longer had an authority to act properly conferred by a person authorised to that end within the meaning of Article 51(3) of the Rules of Procedure of the General Court, and, secondly, rejected the plea of inadmissibility raised by the ECB by separate document lodged at the Registry of the General Court on 29 September 2016, in so far as it concerned the action brought by the shareholders.

14      By judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the Court of Justice set aside the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623).

15      In that judgment, the Court of Justice held, inter alia, that it was necessary, first, to uphold the ECB’s plea of inadmissibility in so far as it was directed at the action brought by the shareholders in Case T‑247/16 and, consequently, to dismiss that action as inadmissible in so far as it concerned them, and, secondly, to refer that case back to the General Court for it to rule on the action brought by the appellant for annulment of the first decision.

16      By order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), which has not been the subject of an appeal by the appellant, the General Court held that there was no longer any need to adjudicate on the action brought by the appellant, since that action had become devoid of purpose as a result of the replacement, with retroactive effect, of the first decision by the decision at issue, and that, consequently, the appellant had lost its interest in seeking the annulment of that first decision.

 The procedure before the General Court and the judgment under appeal

17      By application lodged at the Registry of the General Court on 23 September 2016, Trasta Komercbanka and the shareholders brought an action for annulment of the decision at issue. They put forward eight pleas in law in support of that action.

18      By decision of 13 May 2020, the General Court granted the Republic of Latvia and the European Commission leave to intervene in support of the form of order sought by the ECB.

19      By the judgment under appeal, the General Court decided that there was no longer any need to adjudicate on the action in so far as it concerned one of the applicants at first instance, Mr Igors Buimisters, because he had passed away and his representative had not submitted any observations as to the next steps to be taken in the proceedings.

20      The General Court also noted that the Court of Justice had held, in paragraph 119 of the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), that, for the reasons set out in paragraphs 108 to 114 of that judgment, the first decision did not directly concern the shareholders and that, consequently, the ECB’s plea of inadmissibility, referred to in paragraph 13 above, had to be upheld in so far as it concerned the action brought by those shareholders and that action had to be dismissed as inadmissible. As a result, and inasmuch as the decision at issue was identical in content to the first decision which it had repealed and replaced with retroactive effect, the General Court held that it was necessary, for the same reasons as those set out in that judgment, to dismiss the action before it as inadmissible in so far as it concerned the shareholders.

21      On the substance, the General Court dismissed the action for annulment of the decision at issue in its entirety, ordered the applicants at first instance, with the exception of Mr Buimisters, to pay the costs and ordered Mr Buimisters, the Commission and the Republic of Latvia to bear their own costs.

 Forms of order sought by the parties before the Court of Justice

22      By its appeal, Trasta Komercbanka claims that the Court of Justice should:

–        set aside the judgment under appeal;

–        order the ECB to pay financial compensation in respect of the harm allegedly suffered by it as a result of the first decision, from 3 March 2016, and as a result of the conduct relating thereto;

–        determine that the material damage allegedly sustained amounts to at least EUR 162 million together with compensatory interest starting on 3 March 2016 until delivery of the judgment in the present case and with corresponding default interest from the date of that delivery until payment in full of those sums; and

–        order the ECB to pay the costs.

23      The shareholders contend, in essence, that the appeal brought by Mr Rasa should be dismissed on the ground that he cannot be regarded as a representative of Trasta Komercbanka for the purposes of Article 19 of the Statute of the Court of Justice of the European Union.

24      The ECB contends, principally, that the action should be dismissed as manifestly inadmissible and, in the alternative, that it should be dismissed as unfounded, and that Trasta Komercbanka should be ordered to pay the costs.

25      The Commission contends that the action should be dismissed and that the appellant should be ordered to pay the costs.

 The appeal

26      Under Article 181 of the Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to dismiss that appeal by reasoned order.

27      It is appropriate to apply that provision in the present case.

28      In that regard, it should be noted that Article 19 of the Statute of the Court of Justice of the European Union contains two separate but cumulative conditions as regards the representation, before the Courts of the European Union, of a party not covered by the first two paragraphs of that article. Thus, the first condition, set out in the third paragraph of that article, lays down the requirement for such a party to be represented by a lawyer. The second condition, contained in the fourth paragraph of that article, provides that the lawyer representing that party must be authorised to practise before a court of a Member State or of another State which is a party to the European Economic Area Agreement (see, to that effect, judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 55 and the case-law cited).

29      According to settled case-law, having regard to the first of those conditions, concerning the concept of ‘lawyer’, it is apparent from the wording of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, and in particular from the use of the term ‘represented’ in that provision, that a ‘party’ as referred to therein, whatever that party’s standing, is not authorised to act on its own behalf before a Court of the European Union, but must use the services of a third party. Other provisions, such as the first paragraph of Article 21 of that statute and Article 44(1)(b), Article 57(1) and Article 119(1) of the Rules of Procedure, also confirm that a party and its legal representative cannot be one and the same person (judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 58 and the case-law cited).

30      The objective of parties not covered by the first two paragraphs of Article 19 of the Statute of the Court of Justice of the European Union being represented by a lawyer is, on the one hand, to prevent private parties from acting on their own behalf before the Courts without using an intermediary and, on the other, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he or she represents. In that regard, it should be emphasised that, while the task of representation by a lawyer referred to in the third and fourth paragraphs of Article 19 of that statute must be carried out in the interests of the sound administration of justice, the objective of that task is, above all, to protect and defend the principal’s interests to the greatest possible extent, acting in full independence and in line with the law and professional rules and codes of conduct (see, to that effect, judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraphs 61 and 62).

31      The conception of the lawyer’s role in the EU legal order, which stems from the legal traditions common to the Member States and on which Article 19 of the Statute of the Court of Justice of the European Union is based, is that of a lawyer collaborating in the administration of justice, who is required to provide, in full independence and in the overriding interests of justice, such legal assistance as the client needs (see, to that effect, order of 5 July 2018, Nap Innova Hoteles v SRB, C‑731/17 P, EU:C:2018:546, paragraph 19 and the case-law cited).

32      The lawyer’s duty of independence is to be understood not as the lack of any connection whatsoever between the lawyer and his or her client, but the lack of connections which have a manifestly detrimental effect on his or her capacity to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent. In that regard, the Court of Justice has previously held that a lawyer who has been granted extensive administrative and financial powers which place his or her function at a high executive level within the legal person he or she is representing, such that his or her status as an independent third party is compromised, is not sufficiently independent from that legal person; nor is a lawyer who holds a high-level management position within the legal person he or she is representing (see, to that effect, judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraphs 64 and 65 and the case-law cited).

33      Those requirements are essential procedural requirements and failure to comply with them will render the action inadmissible (order of 25 November 2020, Vizzone v Commission, C‑191/20 P, EU:C:2020:963, paragraph 16 and the case-law cited).

34      In the instant case, it follows from the documents before the Court that the present appeal was brought by Trasta Komercbanka, represented by Mr Rasa in his capacity as liquidator of that company, and was signed by him. As is apparent from paragraphs 8 and 9 above, the management of that company was replaced, by decision of the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District)), by that liquidator.

35      Accordingly, the present appeal cannot be regarded as having been brought by the appellant represented by a lawyer, within the meaning of Article 19 of the Statute of the Court of Justice of the European Union, as interpreted by the Court of Justice, in particular in the case-law cited in paragraphs 29 to 32 above.

36      In those circumstances, it must be held that Trasta Komercbanka’s appeal is manifestly inadmissible.

 Costs

37      Under Article 137 of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings.

38      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

39      Since the ECB has applied for costs and Trasta Komercbanka has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the ECB.

40      Moreover, since the shareholders have not applied for costs, they must be ordered to bear their own costs.

41      Furthermore, under Article 140(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the Member States and institutions which have intervened in the proceedings are to bear their own costs.

42      Consequently, the Commission, as intervener, must bear its own costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

1.      The appeal is dismissed as manifestly inadmissible.

2.      Trasta Komercbanka AS shall bear its own costs and pay those incurred by the European Central Bank (ECB).

3.      Mr Ivan Fursin, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA shall bear their own costs.

4.      The European Commission shall bear its own costs.

Luxembourg, 3 June 2024.

*      Language of the case: English.