Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Third Chamber)

9 September 2015 (*)

(Economic and monetary policy — Application to initiate an investigation for an alleged breach of EU law — Decision of the EBA — Decision of the Board of Appeal of the European Supervisory Authorities — Finding of the Court of its own motion — Lack of competence of the author of the act — Action for annulment — Period allowed for commencing proceedings — Delay — Partly inadmissible)

In Case T‑660/14,

SV Capital OÜ, established in Tallinn (Estonia), represented by M. Greinoman, lawyer,

applicant,

v

European Banking Authority (EBA), represented by J. Overett Somnier and Z. Giotaki, acting as Agents, and by F. Tuytschaever, lawyer,

defendant,

supported by

European Commission, represented by W. Mölls and K.-P. Wojcik, acting as Agents,

intervener,

APPLICATION for the annulment, first, of Decision C 2013 002 of the EBA of 21 February 2014 rejecting the applicant’s request for an investigation to be initiated against the Estonian and Finnish financial sector supervisory authorities, pursuant to Article 17(2) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12), as a result of an alleged breach of EU law and, secondly, of Decision 2014-C1-02 of the Board of Appeal of the European Supervisory Authorities of 14 July 2014 dismissing the action brought against that decision,

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas (Rapporteur), President, N. J. Forwood and E. Bieliūnas, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written procedure and further to the hearing on 29 June 2015,

gives the following

Judgment

 Background to the dispute

1        By letter of 24 October 2012, the applicant, SV Capital OÜ, requested the European Banking Authority (‘the EBA’) to initiate an investigation, pursuant to Article 17 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12), into the Finnish and Estonian financial sector supervisory authorities (‘the complaint’).

2        In support of its complaint, the applicant invoked a breach of Articles 40 and 42 of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (OJ 2006 L 177, p. 1) in that the supervisory authorities at issue failed to remove two directors of the branch of a Finnish bank, established in Estonia, who failed to satisfy the requirements of ‘sufficiently good repute [and] … sufficient experience’ to direct the business of the credit institution at issue, within the meaning of Article 11(1) of that directive. In that regard, the applicant submitted that the directors in question made false statements in civil proceedings brought in Estonia against that branch.

3        Having not received a response to its complaint, the applicant formally requested the EBA, by letter of 17 January 2013, to initiate an investigation, and at the same time furnished additional evidence implicating a third director of the same institution, who the applicant accuses of having signed an allegedly falsified document during an internal audit.

4        By letter of 25 January 2013, the EBA rejected the complaint as inadmissible on grounds of lack of competence and referred it to the Finnish and Estonian financial sector supervisory authorities (‘the letter of 25 January 2013’).

5        By document of 14 February 2013, the applicant lodged an appeal with the Board of Appeal of the European Supervisory Authorities (‘the Board of Appeal’), pursuant to Article 60(1) of Regulation No 1093/2010, against the letter of 25 January 2013.

6        By Decision 2013-008 of 24 June 2013, the Board of Appeal, first, declared the complaint admissible under Article 22 of Directive 2006/48, read in the light of the EBA Guidelines of 22 November 2012 on the assessment of the suitability of members of the management body and key function holders and, secondly, remitted the case to the competent body of the EBA for it to rule on the merits, in accordance with Article 60(5) of Regulation No 1093/2010.

7        By Decision DC 2013 03 of 15 October 2013, the EBA took formal note of the admissibility of the complaint, in accordance with Articles 2.5 and 2.6 of its Internal Processing Rules on Investigation regarding Breach of [EU] Law (‘the Internal Rules’), without prejudice to Article 17(2) of Regulation No 1093/2010.

8        By Decision C 2013 002 of 21 February 2014 (‘the decision of the EBA’), the EBA rejected the complaint on the basis that there were insufficient grounds for initiating an investigation under Article 17 of Regulation No 1093/2010.

9        By document of 31 March 2014, the applicant lodged an appeal against the decision of the EBA before the Board of Appeal.

10      By Decision 2014-C1-02 of 14 July 2014 (‘the decision of the Board of Appeal’), the Board of Appeal dismissed the appeal brought against the decision of the EBA. In essence, the Board of Appeal, first, declared the appeal against the decision of the EBA admissible and, then, dismissed it in its entirety as unfounded.

11      As regards, first, the examination of the admissibility of the appeal, the Board of Appeal took the view that the decision of the EBA constituted, in the particular circumstances of the individual case, an act open to challenge on the basis of Article 60 of Regulation No 1093/2010, which permits any natural or legal person to appeal against a decision of the EBA addressed to him.

12      As regards, next, the examination of the substance of the appeal, the Board of Appeal considered, first, that the assessment carried out by the EBA, to the effect that the two directors implicated in the applicant’s complaint did not hold key functions within the financial institution concerned, was without error and that the claims relating to the third director had not been established. Secondly, the Board of Appeal stated that, in the light of the fact that the applicant was not amongst the entities entitled to request the EBA to initiate an investigation into an alleged breach of EU law, this case concerned a refusal on the part of that authority to initiate an investigation on its own initiative. Moreover, it found that, in the light of the evidence furnished by the applicant in support of its claim that there had been a breach of EU law and the Internal Rules, it had not been demonstrated that the EBA had erred in the exercise of its discretion. Thirdly, the Board of Appeal stated that the failure on the part of the EBA to have given the applicant the opportunity to make known its views before adopting its decision, as required under Article 39(1) of Regulation No 1093/2010, did not constitute a procedural defect such as to invalidate that decision. Fourthly, it had not been shown that the procedure envisaged prior to the adoption of the decision of the EBA was not followed. Fifthly and finally, the Board of Appeal found that no breach by the EBA of Article 41 of the Charter of Fundamental Rights of the European Union had been established.

 Procedure and forms of order sought

13      By document lodged at the Court Registry on 12 September 2014, the applicant brought the present action.

14      By separate document lodged at the Court Registry on 12 December 2014, the EBA raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991. The applicant submitted its observations on that objection on 16 January 2015.

15      By document lodged at the Court Registry on 22 January 2015, the European Commission sought leave to intervene in the proceedings in support of the form of order sought by the EBA. The parties submitted their observations on that application by letters of 17 February 2015. On 20 February 2015, the President of the Third Chamber of the General Court decided to suspend consideration of the application for leave to intervene pending a decision on the objection of inadmissibility.

16      By decision of 17 March 2015, it was decided that the case be given priority over others, in accordance with Article 55(2) of the Rules of Procedure of 2 May 1991, and the parties were informed of that decision.

17      By order of the Court (Third Chamber) of 19 March 2015, adopted on the basis of Article 114(4) of the Rules of Procedure of 2 May 1991, the decision on the objection of inadmissibility was reserved for the final judgment and costs were reserved.

18      By way of a measure of organisation of procedure adopted in accordance with Article 64(3) of the Rules of Procedure of 2 May 1991, the parties were invited to express their views on the plea which the Court intended to raise of its own motion, to the effect that the Board of Appeal lacked competence, under Article 60(1) and (2) of Regulation No 1093/2010, to give a decision on the appeal brought before it on the basis of that provision against the decision of the EBA.

19      By document lodged at the Court Registry on 15 April 2015, the applicant submitted, on the basis of Article 48(2) of the Rules of Procedure of 2 May 1991, written pleadings setting out the new facts and points of law which had come to light during the procedure.

20      By letters lodged at the Court Registry on 15 and 20 April 2015 respectively, the applicant and the EBA complied with the request referred to in paragraph 18 above.

21      By order of 21 April 2015, the President of the Third Chamber of the General Court granted the Commission’s application for leave to intervene. In accordance with Article 64(3) of the Rules of Procedure of 2 May 1991, that institution was also invited to submit its view, in its statement in intervention, on the plea which the Court intended to raise of its own motion, referred to in paragraph 18 above.

22      The Commission complied with that request by letter lodged at the Court Registry on 20 May 2015.

23      Acting upon a report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and to invite the parties, in accordance with Article 64(3)(b) of the Rules of Procedure of 2 May 1991, to focus in their pleadings, in particular, on the issue of the competence of the Board of Appeal to give a decision on the appeal against the decision of the EBA.

24      By document lodged at the Court Registry on 15 June 2015, the applicant, on the basis of Article 64(4) of the Rules of Procedure of 2 May 1991, repeated the request for the adoption of measures of organisation of procedure which it had made in the application in support of the fifth plea in law, claiming that the Court should order the EBA to produce all the documents it had received from the Estonian and Finnish financial sector supervisory authorities in connection with the examination of the complaint. Having heard the parties, the Court rejected that request, and the parties were informed of that decision by letter of 25 June 2015.

25      The parties presented oral argument and answered the questions put by the Court at the hearing on 29 June 2015.

26      The applicant claims that the Court should:

–        annul the decision of the EBA;

–        annul the decision of the Board of Appeal;

–        remit the case to the competent body of the EBA for an examination of the substance of the complaint;

–        order the EBA to pay the costs, including those incurred in complying with any judgment or order delivered by the Court, in accordance with Article 87(1) and (2) of the Rules of Procedure of 2 May 1991.

27      In its objection of inadmissibility, the EBA claims that the Court should:

–        dismiss the action as inadmissible;

–        order the applicant to pay the costs.

28      In its observations on the objection of inadmissibility, the applicant contends that the Court should:

–        dismiss the objection as manifestly inadmissible or, in the alternative, as unfounded;

–        reserve the decision as to costs.

29      In its defence, the EBA, supported by the Commission, contends that the Court should:

–        dismiss the action as inadmissible;

–        in the alternative, dismiss the action as unfounded;

–        order the applicant to pay the costs.

30      At the hearing, the applicant withdrew the fourth head of claim raised in the application in so far as it referred to Article 89 of the Rules of Procedure of 2 May 1991, which was noted in the minutes of the hearing.

 Law

 Admissibility

31      THE EBA, supported by the Commission, submits that the action is inadmissible in its entirety, in that its refusal to initiate an investigation on its own initiative, on the basis of Article 17 of Regulation No 1093/2010, produces no legal effects vis-à-vis the applicant. In the defence, the EBA maintains its position that the action is inadmissible in its entirety and submits that the fourth head of claim in the application is inadmissible in so far it claims that the EBA should be ordered to pay the costs incurred in complying with any judgment or order delivered by the Court, on the basis of Article 89 of the Rules of Procedure of 2 May 1991.

32      The applicant contends that the objections of inadmissibility is manifestly inadmissible or, in the alternative, unfounded. In that regard, it maintains, first, that that objection is not compliant with Article 46(1)(b) of the Rules of Procedure of 2 May 1991 in that it lacks clarity and a coherent structure, secondly, that it is contrary to Articles 60(5) and 61(1) of Regulation No 1093/2010, in so far as the part of the decision of the Board of Appeal regarding admissibility and costs, which is not contested by the applicant before the Court, is not binding on the EBA. Thirdly, that it disregards Article 257 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union in that, as with appeals brought before the Court of Justice of the European Union, the inadmissibility of an action cannot be invoked for the first time before the General Court, as otherwise the applicant would be deprived of a legal remedy and, fourthly, that its action is admissible, in accordance with Article 263 TFEU and Articles 60(1) and 61(1) of Regulation No 1093/2010.

33      At the hearing, the parties were heard on the admissibility of the action in so far as it seeks the annulment of the decision of the EBA, which was noted in the minutes of the hearing. In that respect, the applicant submitted, referring to its argument set out in the written pleading lodged on 15 April 2015 (see paragraph 19 above), that the action brought against that decision was admissible. The EBA and the Commission, on the other hand, contended that that action should be rejected as inadmissible because it is out of time.

34      It is appropriate to examine the admissibility of the action, first, in so far as it seeks the annulment of the decision of the EBA and, secondly, in so far as it seeks the annulment of the decision of the Board of Appeal.

35      Furthermore, since the applicant partly withdrew its fourth head of claim in so far as it concerns Article 89 of the Rules of Procedure of 2 May 1991, there is no longer any need to rule on the admissibility of that head of claim and, accordingly, on the objection of inadmissibility raised in that respect by the EBA.

 Admissibility of the action in so far as it seeks the annulment of the decision of the EBA

36      In the first place, the Court notes that, according to settled case-law, the time-limit for bringing an action is a matter of public policy since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the European Union Courts must ascertain of their own motion whether that time-limit has been observed (see order of 13 November 2012 in ClientEarth and Others v Commission, T‑278/11, ECR, EU:T:2012:593, paragraph 30 and the case-law cited).

37      According to equally settled case-law, the time-limits for bringing proceedings are at the discretion of neither the Court nor the parties (see order in ClientEarth and Others v Commission, cited in paragraph 36 above, EU:T:2012:593, paragraph 31 and the case-law cited).

38      In the second place, it must be recalled that, according to the sixth paragraph of Article 263 TFEU, actions for annulment must be brought within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

39      In the present case, the decision of the EBA was notified to the applicant on 21 February 2014.

40      Pursuant to Article 58(1)(b) of the Rules of Procedure of the General Court, according to which a time-limit expressed in months ends with the expiry of whichever day in the last month falls on the same date as the day during which the event or action from which the time-limit is to be calculated occurred or took place, and Article 60 of those rules, according to which procedural time-limits are to be extended on account of distance by a single period of 10 days, the period prescribed for instituting proceedings expired on 1 May 2014 at midnight.

41      It follows that, at the time the present action was brought, namely 12 September 2014, the applicant was time-barred from contesting the decision of the EBA. Accordingly, in so far as it seeks the annulment of that decision, the action is inadmissible.

42      In that respect, it must be noted that, in its pleading, lodged on 15 April 2015 (see paragraph 19 above), under the guise of presenting new pleas in law based on new elements of law or of fact, the applicant actually put forward arguments concerning the admissibility of the action in so far as it seeks the annulment of the decision of the EBA and, in particular, the observance of the period prescribed for instituting proceedings. It suffices to note that such arguments must be rejected as inadmissible.

43      Moreover, the circumstances cited by the applicant in that written pleading of 15 April 2015, in support of the alleged existence of a situation of force majeure under the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court pursuant to 53 thereof, and of an excusable error, are not such as to permit a derogation from the period prescribed for instituting proceedings. In that regard, it must be recalled that the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings (see order of 18 January 2005 in Zuazaga Meabe v OHIM, C‑325/03 P, ECR, EU:C:2005:28, paragraph 25 and the case-law cited).

44      In the present case, the applicant cannot find any support in the fact that the Board of Appeal did not declare that it lacked competence during the administrative procedure and, in particular, when it decided on the appeal brought against the letter of 25 January 2013 (see paragraphs 4 to 6 above). Although, by the decision of 24 June 2013, the Board of Appeal declared the complaint admissible, it did not decide on the substance of that complaint and remitted the case to the competent EBA body, in accordance with Article 60(5) of Regulation No 1093/2010. In that context, no specific assurance was provided to the applicant as regards the competence of the Board of Appeal to decide on an appeal concerning the decision of the EBA which would subsequently be adopted. Moreover, the applicant was not denied the possibility of bringing, as a precautionary measure, an action before the General Court against the decision of the EBA, pursuant to Article 61(1) of Regulation No 1093/2010, according to which proceedings may be brought before the Court of Justice of the European Union, in accordance with Article 263 TFEU, contesting a decision taken by the Board of Appeal or, in cases where there is no right of appeal before the Board of Appeal, by the EBA.

45      It should also be noted, for the sake of completeness, that, even if the applicant had contested the decision of the EBA within the period prescribed by Article 263 TFEU, the action against that decision would, in any event, have been rejected by the Court as inadmissible on the ground that there was no challengeable act, as the EBA submits, and since the EU judicature would have been required to raise such a plea of its own motion.

46      In that respect, it must be borne in mind that the applicant’s complaint was based on Article 17(2) of Regulation No 1093/2010, according to which, upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the Banking Stakeholder Group, or on its own initiative, and after having informed the competent authority concerned, the EBA ‘may’ investigate the alleged breach or non-application of EU law.

47      It follows from that provision that the EBA has a discretion as regards the initiation of investigations, both when it receives a request from one of the entities expressly mentioned in Article 17(2) of Regulation No 1093/2010 and when it acts on its own initiative.

48      According to settled case-law, developed in the context of actions for annulment of Commission decisions refusing to initiate infringement proceedings, and applicable by analogy to the present case, where an EU institution or body is not bound to initiate a procedure, but has a discretion which excludes the right for individuals to require it to adopt a specific position, it is not open to persons who have lodged a complaint to bring an action before the EU judicature against a decision to take no further action on their complaint. That possibility would arise only if those persons had procedural rights, comparable to those they might have in the case of a procedure under Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), enabling them to require that institution or body to inform them and to grant them a hearing (see, to that effect, orders of 17 July 1998 in Sateba v Commission, C‑422/97 P, ECR, EU:C:1998:395, paragraph 42, and 14 January 2004 in Makedoniko Metro and Michaniki v Commission, T‑202/02, ECR, EU:T:2004:5, paragraph 46).

49      Since the applicant is not one of the entities expressly mentioned in Article 17(2) of Regulation No 1093/2010, it cannot be equated to complainants benefiting from procedural rights which may be enforced before the EU judicature, with the result that the case-law relating to the rejection of, or decisions to take no further action on, complaints brought by interested parties concerning State aid under Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1) (see, to that effect, judgment of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, ECR, EU:C:2008:422, paragraphs 36 and 53 and the case-law cited) or by complainants, under Regulation No 1/2003 and Commission Regulation (EC) No 773/2004, of 7 April 2004, relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18) (see, to that effect, judgment of 18 September 1992 in Automec v Commission, T‑24/90, ECR, EU:T:1992:97, paragraph 79, and order of 5 June 2014 in Stanleybet Malta and Stanley International Betting v Commission, T‑416/13, EU:T:2014:567, paragraph 23 and the case-law cited), is not applicable in the present case.

50      In view of the foregoing, the action must be dismissed as inadmissible in so far as it seeks the annulment of the EBA decision and, consequently, the first head of claim must be rejected. Moreover, given the obligation for the Court to examine of its own motion the admissibility of the action, mentioned, inter alia, in paragraph 45 above, it is not necessary to rule on the plea of inadmissibility raised by the applicant as regards the objection of inadmissibility (see paragraph 32 above).

 Admissibility of the action in so far as it seeks the annulment of the decision of the Board of Appeal

51      Despite the fact that the EBA claims that the action is inadmissible in its entirety, it has none the less not raised any specific argument as regards the admissibility of the action in so far as it seeks the annulment of the decision of the Board of Appeal. In that respect, it must be noted, in particular, that it is apparent from the wording of Article 61(1) of Regulation No 1093/2010, as recalled in paragraph 44 above, that that decision constitutes an act challengeable before the Court. The Court therefore finds that the present action is admissible in so far as it seeks the annulment of that decision.

52      In those circumstances, it is not necessary to rule on the plea of inadmissibility raised by the applicant as regards the objection of inadmissibility (see paragraph 32 above).

 Admissibility of the third head of claim

53      By its third head of claim, the applicant claims that the Court should remit the case to the competent body of the EBA for an examination of the substance of the complaint. By that head of claim, the applicant claims, in essence, that the Court should issue a direction to the EBA. However, according to settled case-law, in an action for annulment, the jurisdiction of the EU judicature is limited to reviewing the legality of the contested measure and the Court may not, in the exercise of its jurisdiction, issue directions to EU institutions. It is for the institution concerned to adopt, under Article 266 TFEU, the measures necessary to implement a judgment given in proceedings for annulment (see, to that effect, order of 12 March 2014 in PAN Europe v Commission, T‑192/12, EU:T:2014:152, paragraph 15 and the case-law cited).

54      It follows that the third head of claim must be rejected as inadmissible.

 Substance

55      The applicant essentially raises five pleas in support of its action, alleging: (i) errors of fact and of law and inadequate reasoning which vitiate the EBA’s decision; (ii) infringement of the obligation to state reasons and an error of law which vitiate the decisions of the EBA and of the Board of Appeal; (iii) breach of Article 39(1) of Regulation No 1093/2010 and Article 16 of the EBA’s Code of Good Administrative Behaviour; (iv) procedural irregularity and infringement of the rights of the defence by the Board of Appeal, in that it failed to have regard to Article 3(3), (4) and (5) of the EBA’s Internal Rules; and (v) infringement of the principles of impartiality and equality of arms laid down in Article 41 of the Charter of Fundamental Rights.

56      The EBA contests the arguments raised in support of those pleas.

57      As a preliminary point, it must be noted that, according to settled case-law, infringement of essential procedural requirements within the meaning of Article 263 TFEU constitutes a ground of ‘public policy’, which must be raised by the EU judicature of its own motion. The same is true for lack of competence, within the meaning of that article (see judgment of 13 December 2013 in Hungary v Commission, T‑240/10, ECR, EU:T:2013:645, paragraph 70 and the case-law cited).

58      Moreover, in fulfilling its duty to raise of its own motion a ground of public policy, the EU judicature must have regard to the rule that the parties should be heard (see judgment in Hungary v Commission, cited in paragraph 57 above, EU:T:2013:645, paragraph 71 and the case-law cited).

59      In the present case, the Court must raise of its own motion the plea relating to the Board of Appeal’s lack of competence, having regard to Article 60(1) and (2) of Regulation No 1093/2010, to decide on the appeal brought before it against the decision of the EBA on the basis of that provision, the parties having been heard on that question.

60      In that respect, the applicant submits that the Board of Appeal had competence to decide on the appeal brought before it, since, irrespective of its form, the decision of the EBA fell within the scope of Article 60(1) of Regulation No 1093/2010. Furthermore, it argues that that interpretation is consistent with recital 58 in the preamble to that regulation and with the guarantees that the rights of the parties concerned will be protected, as stated in that recital.

61      The EBA, supported by the Commission, submits that the Board of Appeal should have declared that the appeal brought before it against the EBA’s decision was inadmissible, since the requirements of Article 60(1) of Regulation No 1093/2010, which reflect those of Article 263 TFEU, were not satisfied and that, consequently, the action before the Court, for the purposes of that article, was also inadmissible. The EBA did not, however, expressly state its views on whether the Board of Appeal had competence to decide on the appeal. When questioned by the Court on that issue at the hearing, the EBA stated that the Board of Appeal did not have competence to decide on the appeal brought before it.

62      The Commission adds that it is apparent from a reading of Article 58 to 60 of Regulation No 1093/2010 that the Board of Appeal is not a judicial body, but an internal body of the EBA, and that it only has competence to confirm decisions taken by the competent body of the EBA or to remit the case to that body for it to adopt a decision. At the hearing, the Commission added that the Board of Appeal should have declared the appeal before it inadmissible in accordance with Article 60(4) of Regulation No 1093/2010.

63      In the present case, it must be recalled, first of all, that the applicant made a complaint to the EBA, under Article 17 of Regulation No 1093/2010, alleging infringement of Directive 2006/48 by the Estonian and Finnish financial sector supervisory authorities, which constitute ‘competent authorities’ within the meaning of Article 4(4) of that directive, read in conjunction with Article 4(2)(i) of that regulation.

64      In that respect, it must also be recalled that, under Article 17(1) of Regulation No 1093/2010, where a competent authority has not applied the acts referred to in Article 1(2) of that regulation, or has applied them in a way which appears to be a breach of EU law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15 of the regulation, in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, the EBA is to act in accordance with the powers set out in Article 17(2), (3) and (6) of the regulation.

65      Next, it must be noted that, in accordance with Article 60(1) of Regulation No 1093/2010, any natural or legal person, including competent authorities, may appeal against a decision of the EBA referred to in Articles 17, 18 and 19 of that regulation and any other decision taken by the EBA in accordance with the EU acts referred to in Article 1(2) of the regulation which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

66      It follows that, in order for an appeal to the Board of Appeal to lie against a decision of the EBA, for the purpose of Article 60 of Regulation No 1093/2010, that decision must either have been taken in accordance with the EU acts referred to in Article 1(2) of that regulation, or be one of the decisions referred to in Articles 17 to 19 of the regulation.

67      First, and despite the fact that infringement of certain provisions of Directive 2006/48 was alleged in support of the complaint, the decision of the EBA was not based on Article 1(2) of Regulation No 1093/2010. The EBA did not express any view in its decision on whether or not that directive had been infringed by the competent authorities or by the credit institution concerned.

68      Secondly, it suffices to point out that the decision of the EBA is clearly not one of the decisions referred to in Articles 18 and 19 of Regulation No 1093/2010, by which the EBA may require national supervisory authorities to take specific action to address an emergency or to settle disagreements that may arise in cross-border situations between those authorities, and this is common ground between the parties. Furthermore, it suffices to note that no breach of the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15 of that regulation, as referred to in Article 17(1) of the regulation, was alleged in support of the applicant’s complaint, and this was confirmed by the applicant at the hearing. In addition, contrary to what is claimed by the applicant, it is not apparent either from the letter of 2 July 2013 that it sent to the EBA, or from its reply to the EBA’s response, submitted on 20 May 2014 in the administrative procedure, that the applicant alleged breach of the standards referred to in Articles 10 to 15 of Regulation No 1093/2010 following the submission of the complaint.

69      Thirdly, as pointed out in paragraphs 46 and 49 above, it suffices to note that the applicant is not one of the entities expressly referred to in Article 17(2) of Regulation No 1093/2010 which may request the EBA to initiate an investigation into an alleged breach of or failure to apply EU law (which are limited to the competent authorities, the Parliament, the Council, the Commission and the Banking Stakeholder Group).

70      The applicant also does not claim to be a member of the Banking Stakeholder Group, established in accordance with Article 37 of Regulation No 1093/2010, to help facilitate consultation with stakeholders in areas relevant to the tasks of the EBA. In that respect, it can be seen from Article 37(2) that that group is composed of 30 members, representing in balanced proportions credit and investment institutions operating in the European Union, their employees’ representatives as well as consumers, users of banking services and representatives of SMEs.

71      Fourthly, it should be noted that, except in the case of a refusal to initiate an investigation upon a request by one of the entities exhaustively listed in Article 17(2) of Regulation No 1093/2010, the recommendations made or decisions taken by the EBA pursuant to Article 17(2) to (6) of that regulation are addressed to either the competent authorities or the financial institutions concerned. Article 17(3) of that regulation provides that ‘the [EBA] may … address a recommendation to the competent authority concerned setting out the action necessary to comply with Union law’. According to Article 17(4), ‘[w]here the competent authority has not complied with Union law … the Commission may, after having been informed by the [EBA], or on its own initiative, issue a formal opinion requiring the competent authority to take the action necessary to comply with Union law’. In addition, Article 17(6) of Regulation No 1093/2010 states that ‘where a competent authority does not comply with the formal opinion …, the [EBA] may … adopt an individual decision addressed to a financial institution requiring the necessary action to comply with its obligations under Union law including the cessation of any practice’.

72      It follows from the examination of the relevant provisions of Regulation No 1093/2010 that the decision of the EBA challenged before the Board of Appeal in the present case cannot be regarded as being based, having regard to its nature, on one of those provisions. Accordingly, the Board of Appeal did not have competence to decide on the appeal brought before it on the basis of Article 60(1) of Regulation No 1093/2010.

73      Having regard to the foregoing, and without it being necessary to examine the merits of the pleas raised by the applicant, the action must be upheld in so far as it seeks the annulment of the decision of the Board of Appeal on grounds of lack of competence.

 Costs

74      Under the first paragraph of Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that each party bear its own costs. In the present case, since the applicant and the EBA have each been partially unsuccessful in this case, they should be ordered to bear their own costs.

75      In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Annuls Decision 2014-C1-02 of the Board of Appeal of the European Supervisory Authorities of 14 July 2014;

2.      Dismisses the action as to the remainder;

3.      Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 9 September 2015.

[Signatures]

* Language of the case: English.

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