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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

21 January 2019(*)

(Application for interim measures — Economic and monetary policy — Prudential supervision of credit institutions — Application for suspension of operation — No urgency)

In Case T‑687/18 R,

Pilatus Bank plc, established in Ta’Xbiex (Malta), represented by O.H. Behrends, M. Kirchner and L. Feddern, lawyers,

applicant,

v

European Central Bank (ECB), represented by E. Yoo, M. Puidokas and A. Karpf, acting as Agents,

defendant,

APPLICATION based on Articles 278 and 279 TFEU seeking suspension of the operation of an act of the European Central Bank contained in an email of 10 September 2018 by which the ECB required that any communication to it by the applicant be made either through the person appointed by the Malta Financial Services Authority or with the approval of that person,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute, procedure and forms of order sought by the parties

1        The applicant, Pilatus Bank plc, used to be a less significant credit institution within the meaning of Article 6(4) 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) and, as such, subject to direct prudential supervision by the Malta Financial Services Authority (the ‘MFSA’).

2        On 21 March 2018, the MFSA ordered the applicant to terminate its operations.

3        On 22 March 2018, the MFSA appointed Mr Lawrence Connell as the so-called Competent Person in order to ‘take control of the Bank’ (the ‘Competent Person’).

4        In the context of an exchange with the applicant’s legal counsel, the ECB took in its email of 10 September 2018 the following stance (the ‘contested act’):

‘Finally, taking into consideration that, as you are aware, the [MFSA] has appointed a Competent Person to represent [the applicant] we would like to ask you to direct your comments/future communications with the ECB in respect of [the applicant] via this Person or to attach to any future submission the Competent Person’s approval.’

5        On 2 November 2018, the ECB withdrew the applicant’s authorisation as a credit institution.

6        By application lodged at the Registry of the General Court on 20 November 2018, the applicant requested that the Court annul the contested act.

7        On 7 December 2018, the applicant, by a separate document, lodged at the Court Registry an application for interim measures pursuant to Articles 278 and 279 TFEU in which it claims that the President of the Court should:

–        suspend the operation of the contested act;

–        order the ECB to pay the costs.

8        In its observations on the application for interim measures, lodged at the Court Registry on 20 December 2018, the ECB contends that the President of the Court should:

–        dismiss the application for interim measures;

–        order the applicant to pay the costs.

 Law

9        It is apparent from a reading of Articles 278 and 279 TFEU, together with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order suspension of the operation of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

10      The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

11      Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also required to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

12      In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

13      Having regard to the material in the case file, the judge hearing the application for interim measures considers that he has all the information needed to rule on the present application for interim measures, without there being any need first to hear oral argument from the parties.

14      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

15      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts. To attain that objective, urgency must usually be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

16      Furthermore, according to settled case-law, there is urgency only if the serious and irreparable harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, under an obligation to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 16 February 2017, Gollnisch v Parliament, T‑624/16 R, not published, EU:T:2017:94, paragraph 25 and the case-law cited).

17      Following settled case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).

18      Furthermore, under the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures must ‘contain all the evidence and offers of evidence available to justify the grant of interim measures’.

19      Thus, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary without any other supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P‑R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).

20      It is also established case-law that, in order to be able to determine whether the conditions set out in paragraph 16 above are met, the judge hearing the application for interim measures must have hard and precise information, supported by detailed and certified documents showing the situation of the party seeking interim relief and making it possible to examine the actual consequences which would be likely to result if the measures sought were not granted. It follows that that party, especially where it alleges harm of a financial nature, must, in principle, provide, with supporting documentation, an accurate and comprehensive picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).

21      Lastly, while the application for interim measures may be supplemented on specific points by references to documents annexed to that application, those documents cannot compensate for the failure to set out the essential elements in that application. It is not the task of the judge hearing the application for interim measures to seek, in place of the party concerned, the information that may be found in the annexes to the application for interim measures, in the main application or in the annexes to that application, which is liable to substantiate the application for interim measures. To impose such an obligation on the judge hearing the application for interim measures would also be likely to deprive of all effect Article 156(5) of the Rules of Procedure, under which the application for interim measures must be made by separate document (see order of 20 June 2014, Wilders v Parliament andCouncil, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).

22      The applicant claims, in order to prove that the condition relating to urgency is satisfied, that the contested act results in a situation in which the applicant cannot, due to the unavailability of the Competent Person, communicate with the ECB. Accordingly, the applicant is not in a position to be compliant with regulatory requirements, to defend its legal position and to assert its rights vis-à-vis the ECB. Furthermore, the applicant fears that the ECB will not be properly informed about its ‘true situation’.

23      These arguments cannot prove that the condition relating to urgency is met.

24      Notwithstanding the question whether an action against the contested act is admissible, it must be held that, in any event, the alleged harm is not imminent within the meaning of the case-law cited in paragraph 16 above.

25      It must be stressed that, at the present time, the alleged risk appears to be merely hypothetical.

26      In fact, the applicant does not provide evidence to support its contention that the ECB had refused to communicate with it if such communication was not channelled through the Competent Person or communicated without the approval of the latter and there is no reason to believe that the ECB would in fact refuse to accept such communication from the applicant.

27      That is even more unlikely since the ECB has expressly acknowledged in its written observations that, in view of a judgment by the Court of Appeal of Malta of 5 November 2018, it will no longer request the applicant ‘to coordinate’ with the Competent Person its communication with the ECB.

28      It follows from the foregoing that the application for interim measures must be dismissed for lack of urgency, without it being necessary to examine the condition relating to a prima facie case or the need to weigh up the interests involved.

29      Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 21 January 2019.

*      Language of the case: English.

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