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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

30 November 2022 (*)

(Economic and monetary policy – Prudential supervision of credit institutions – Specific supervisory tasks assigned to the ECB – Decision to withdraw a credit institution’s authorisation – Death of an applicant – No need to adjudicate in part – Powers of the national authorities of participating Member States and of the ECB under the Single Supervisory Mechanism – Equal treatment – Proportionality – Legitimate expectations – Legal certainty – Misuse of powers – Rights of the defence – Obligation to state reasons)

In Case T‑698/16,

Trasta Komercbanka AS, established in Riga (Latvia), and the other applicants whose names are set out in the annex, (1) represented by O. Behrends, lawyer,

applicants,

v

European Central Bank (ECB), represented by E. Koupepidou, C. Hernández Saseta and A. Witte, acting as Agents, and by B. Schneider, lawyer,

defendant,

supported by

Republic of Latvia, represented by K. Pommere and J. Davidoviča, acting as Agents,

and by

European Commission, represented by V. Di Bucci and A. Steiblytė, acting as Agents,

interveners,

THE GENERAL COURT (Ninth Chamber),

composed, at the time of the deliberations, of M.J. Costeira (Rapporteur), President, M. Kancheva and T. Perišin, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure, inter alia:

the decision of 13 May 2020 granting the Republic of Latvia and the Commission leave to intervene in support of the ECB,

the reassignment of the case to a new Judge-Rapporteur following the death of Judge Berke on 1 August 2021,

having regard to the designation of another Judge to complete the Chamber as one of its Members was prevented from acting,

further to the hearing on 30 March 2022,

gives the following

Judgment

1        By their action based on Article 263 TFEU, the applicants, Trasta Komercbanka AS and the other applicants whose names are listed in the annex, seek annulment of Decision ECB/SSM/2016-529900WIP0INFDAWTJ81/2 WOANCA-2016-0005 of the ECB of 11 July 2016 withdrawing the authorisation of Trasta Komercbanka for access to the activities of a credit institution (‘the contested decision’).

I.      Background to the dispute

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

3        The other six applicants are shareholders of the applicant (‘the shareholder applicants’).

4        On 5 February 2016, the European Central Bank (ECB) received a proposal from the FCMC to withdraw the applicant’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 ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

5        On 3 March 2016, the ECB adopted Decision ECB/SSM/2016-529900WIP0INFDAWTJ81/1 WOANCA-2016-0005, by which it withdrew the applicant’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’).

6        On 14 March 2016, at the request of the FCMC, the Rīgas pilsētas Vidzemes priekšpilsētas tiesa (Riga City Court (Vidzeme District), Latvia) adopted a decision initiating liquidation proceedings in respect of the applicant and appointing a liquidator.

7        On 17 March 2016, a notice of the opening of liquidation proceedings in respect of the applicant and of the management of that credit institution by the liquidator was published in the Latvijas Vēstnesis (Latvian Official Journal).

8        On 3 April 2016, the Administrative Board of Review of the ECB (‘the 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 applicant concerning that decision were unfounded and that that decision was sufficiently motivated and proportionate.

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

10      On 11 July 2016, the ECB adopted the contested decision. That decision has, from the date of its adoption, replaced the first decision.

II.    Events occurring after the application was lodged

11      By order of 12 September 2017, Fursin and Others v ECB (T‑247/16, not published, EU:T:2017:623), the General Court, first, held that there was no need to adjudicate on the applicant’s action for annulment of the first decision and, secondly, rejected the ECB’s plea of inadmissibility in so far as it concerned the action brought by the shareholder applicants.

12      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, not published, EU:T:2017:623).

13      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 concerned the action brought by the shareholder applicants in Case T‑247/16 and, consequently, to dismiss that action as inadmissible in so far as it concerned them (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, paragraphs 116 and 119 and point 4 of the operative part) and, secondly, to refer that case back to the General Court so that it could give a ruling on the action brought by the applicant seeking annulment of the first decision (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, point 5 of the operative part).

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

III. Forms of order sought

15      The applicants claim that the Court should:

–        annul the contested decision;

–        order the ECB to pay the costs.

16      The ECB, supported by the European Commission, contends that the Court should:

–        dismiss the action as unfounded so far as concerns the applicant;

–        dismiss the action as inadmissible or, in the alternative, as unfounded so far as concerns the shareholder applicants;

–        order the applicants to bear the costs.

IV.    Law

A.      The death of one of the applicants

17      Following the death of one of the applicants, Mr Igors Buimisters, the Court, by way of a measure of organisation of procedure, asked the representative of the latter to inform it whether there were any successors in title and, if that was the case, of whether or not they wished to continue the present action. In the context of that measure, the Court also requested the parties to submit their observations on the conclusions to be drawn for the conduct of the present proceedings, in particular in the light of Article 131(2) of the Rules of Procedure of the General Court, from the absence of a reply from the deceased applicant’s representative.

18      The ECB, the Commission and the Republic of Latvia argued that, in the absence of a reply within the prescribed period, there is no longer any need to adjudicate on the present action in so far as concerns the deceased applicant.

19      The deceased applicant’s representative did not provide any indication as to the next steps to be taken in the proceedings.

20      Consequently, in view of the death of Mr Buimisters and his representative’s failure to indicate any successors in title pursuing the proceedings, there is no longer any need to adjudicate on the present action so far as he is concerned.

B.      Admissibility

1.      The shareholder applicants’ lack of standing to bring proceedings

21      The ECB, supported by the Commission, submits, in essence, that, in accordance with the grounds set out in 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), the action must be dismissed as inadmissible as regards the shareholder applicants, since the contested decision was not of direct and individual concern to them.

22      The shareholder applicants dispute that inadmissibility and submit, in essence, that the requirement to demonstrate a separate interest is based on the premiss that the shareholders are able, by using the normal internal governance mechanisms of the company, to bring an action through the company. In the present case, as a result of the liquidation and transfer to the liquidator of the powers of the applicant’s management bodies, the shareholder applicants were not in a position to exercise their rights as members in order to have the applicant bring an action to defend its interests. Moreover, their standing to bring proceedings should be inferred from their involvement in the proceedings before the FCMC and from the fact that the earlier national regulatory measures addressed to them were taken into account in the contested decision.

23      In that regard, it is sufficient to note that the Court of Justice 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 of the applicant and that, consequently, the ECB’s plea of inadmissibility had to be upheld in so far as it concerned the action brought by those shareholders and that action against that decision had to be dismissed as inadmissible.

24      As a result, and inasmuch as the contested decision is identical in content to the first decision which it repealed and replaced with retroactive effect, it is necessary, for the same reasons as those set out in 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), to dismiss the present action as inadmissible so far as it concerns the shareholder applicants.

2.      Reference to the arguments put forward in Case T‑247/16

25      Without formally challenging the admissibility of any such general reference, the ECB observes that, at point 10 of the reply, the applicant refers, in a general manner, to the arguments which it submitted in Case T‑247/16. It submits, in essence, that that case and the present case are distinct and have not been joined.

26      The Court observes that it is settled case-law that the conditions for the admissibility of an action concern an absolute bar to proceeding with the action which the Court may and must consider of its own motion should such an issue arise (see, to that effect, judgment of 14 December 2005, Honeywell v Commission, T‑209/01, EU:T:2005:455, paragraph 53 and the case-law cited).

27      According to settled case-law, while the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents cannot make up for the absence of the essential arguments in law which, in accordance with Article 76 of the Rules of Procedure, must appear in the application itself (see, to that effect, judgment of 27 April 2017, Germanwings v Commission, T‑375/15, not published, EU:T:2017:289, paragraph 127 and the case-law cited).

28      In the present case, at point 10 of the reply the applicant refers in a general manner to the pleas and arguments on which it relied in Case T‑247/16. However, that general reference does not meet the requirements set out above (see, to that effect, judgment of 13 December 2018, Deutsche Telekom v Commission, T‑827/14, EU:T:2018:930, paragraph 78 (not published) and the case-law cited).

29      It follows that the general reference made by the applicant in the reply to the observations submitted in Case T‑247/16 is inadmissible.

3.      Pleas in law and arguments submitted for the first time at the stage of the reply

30      The ECB states that the reply contains several pleas in law and arguments which were not raised in the application. In particular, it submits that the arguments put forward in support of the plea relating to the notification of the contested decision, those, set out in paragraphs 45 to 58, 61 to 63, 65 to 67 and 69 of the reply, submitted in support of the plea alleging the inadequacy of the statement of reasons and those put forward in support of the plea relating to the ECB’s competence are new pleas in law and arguments which must be considered inadmissible, pursuant to Article 84 of the Rules of Procedure.

31      Under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

32      However, under Article 129 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with a case.

33      In the present case, the pleas and arguments at issue, relating, first, to the notification of the contested decision, secondly, to the statement of reasons for the contested decision and, third, to the ECB’s competence, may be interpreted as seeking to establish an infringement of essential procedural requirements, within the meaning of Article 263 TFEU, consisting of pleas involving matters of public policy which may, or even must, be raised by the EU judicature of its own motion.

34      In those circumstances, although the applicant raised those pleas and arguments out of time, the Court is nonetheless required to examine whether there has been an infringement of essential procedural requirements, inasmuch as the contested decision was allegedly not notified to the applicant, allegedly does not state the reasons on which it is based and the ECB allegedly does not have the competence to take that decision.

35      By contrast, it should be noted that the arguments set out in points 61 to 63, 65 to 67 and 69 of the reply, although raised in the context of a plea alleging infringement of essential procedural requirements within the meaning of Article 263 TFEU, relate in reality to the facts underlying the reasons for withdrawal of the applicant’s authorisation, and not to the statement of reasons for the contested decision.

36      Since they do not relate to an infringement of essential procedural requirements, are not based on matters of law or of fact which came to light in the course of the procedure, within the meaning of Article 84(1) of the Rules of Procedure, and do not amplify a plea put forward previously, whether directly or by implication, in the original application and are closely connected therewith (see, to that effect, judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraph 66 and the case-law cited), those arguments, raised for the first time at the stage of the reply, must be considered to be out of time and, therefore, inadmissible.

C.      Substance

37      In support of the action, the applicant relies, in essence, on eight pleas in law. The first plea alleges infringement of Article 24 of Regulation No 1024/2013. The second plea alleges infringement by the ECB of its obligation to examine and appraise carefully and impartially all the relevant aspects of the case. The third plea alleges infringement of Article 14(5) of that regulation and of the principle of proportionality. The fourth plea alleges that the ECB failed to comply with the principle of equal treatment. The fifth plea alleges infringement of Article 19 and recital 75 of that regulation. The sixth plea alleges failure to comply with the principles of legitimate expectations and legal certainty. The seventh plea alleges infringement of procedural issues. The eighth plea relates to the competence of the ECB.

38      The eighth plea will be examined first.

1.      The eighth plea, concerning the competence of the ECB

39      The present plea consists, in essence, of two parts.

40      The first part relates to the illegality of Regulation No 1024/2013. The second part relates to the ECB having allegedly exceeded its powers under that regulation.

(a)    The first part, concerning the illegality of Regulation No 1024/2013

41      The applicant submits, in essence, that Regulation No 1024/2013 is unlawful, in particular, inasmuch as it goes beyond Article 127(6) TFEU and inasmuch as it does not comply with the general principles of EU law. It submits that, in any event, that regulation, as interpreted implicitly by the ECB in the contested decision, is unlawful.

42      The ECB and the Commission contest the applicant’s arguments.

43      In that regard, it should be noted that the present plea of illegality was raised only at the stage of the reply. It is clear from the case-law that the action is defined by the application initiating proceedings and a plea of illegality is inadmissible at the stage of the reply (see, to that effect and by analogy, judgment of 27 September 2005, Common Market Fertilisers v Commission, T‑134/03 and T‑135/03, EU:T:2005:339, paragraph 51 and the case-law cited). Furthermore, that plea of illegality is not based, in the present case, on any matter of law or of fact which came to light in the course of the procedure within the meaning of Article 84(2) of the Rules of Procedure.

44      Moreover, the Court cannot of its own motion raise the question of the possible illegality of Regulation No 1024/2013, since such an illegality is not a matter of public policy (see, to that effect, judgment of 27 September 2005, Common Market Fertilisers v Commission, T‑134/03 and T‑135/03, EU:T:2005:339, paragraph 52 and the case-law cited).

45      In the light of the above, the plea of illegality raised by the applicant and, accordingly, the present part of the plea must be rejected as inadmissible.

(b)    The second part, alleging that the ECB exceeded its powers under Regulation No 1024/2013

46      This part of the plea comprises three complaints.

47      The first complaint relates to the ECB’s lack of competence in anti-money laundering matters. The second complaint relates to the ECB’s lack of competence as regards resolution actions. The third complaint relates to the ECB’s limited competence over the prudential supervision of credit institutions.

(1)    The first complaint, concerning the ECB’s lack of competence in anti-money laundering matters

48      The applicant submits, in essence, that all regulated activities which are subject to authorisation, other than the activities of deposit taking and lending, are excluded from the scope of Regulation No 1024/2013. According to the applicant, those activities do not fall within the scope of EU law and the law governing the ECB, but are covered by national law and the law governing the national competent authorities. That applies in particular to payment services and anti-money laundering rules. Withdrawal of the applicant’s authorisation is based on the claim that the payment services which it offers are affected by problems relating to the fight against money laundering.

49      The ECB and the Commission contest the applicant’s arguments.

50      In that regard, first, it should be observed that the failures noted in the contested decision to comply with the applicable regulatory requirements did not concern solely the anti-money laundering rules. It is apparent from that decision that the applicant did not meet the global capital requirements or the prudential requirements under Pillar 2 either and nor did it observe the large exposure limits and several other requirements laid down by the Kredītiestāžu likums (Law on Credit Institutions) (Latvijas Vēstnesis, 1995, No 163), such as the requirements relating to the functioning of the internal control system, to a prudent strategy and to the reputation of shareholders of qualifying holdings.

51      Secondly, it is admittedly apparent from recitals 28 and 29 of Regulation No 1024/2013 that the task of preventing the use of the financial system for the purposes of money laundering and terrorist financing remains a national competence and that the ECB has, in that regard, a duty of cooperation vis-à-vis the national authorities.

52      However, under Article 4(1)(a) of Regulation No 1024/2013 and subject to Article 14 of that regulation, the ECB is exclusively competent, in respect of the tasks conferred upon it under that regulation, to withdraw authorisations of credit institutions, irrespective of the significance of such institutions. Article 83(1) of Regulation (EU) No 468/2014 of the ECB of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the ECB and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1) states, in that regard, that the ECB may accept or reject the draft decision to withdraw authorisation submitted by the relevant national competent authority. Article 83(2) of that regulation also states that, in taking its decision, the ECB is to take into account all of the following: (i) its assessment of the circumstances justifying withdrawal, (ii) where applicable, the draft withdrawal decision of the relevant national competent authority, (iii) consultation with the relevant national competent authority and, where the national competent authority is not the national resolution authority, the national resolution authority and (iv) any comments provided by the credit institution pursuant to Articles 81(2) and 82(3) of that regulation.

53      Article 14(5) of Regulation No 1024/2013 also provides that, subject to paragraph 6 of that article, the ECB may withdraw the authorisation in the cases set out in relevant EU law on its own initiative, following consultation with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such national competent authority. Where the national competent authority which has proposed authorisation in accordance with Article 14(1) considers that the authorisation must be withdrawn in accordance with the relevant national law, it shall submit a proposal to the ECB to that end. In that case, the ECB is to take a decision on the proposed withdrawal taking full account of the justification for withdrawal put forward by that authority.

54      It follows that, while the national authorities are competent to implement the anti-money laundering provisions or to propose that the ECB withdraw authorisation on the ground of infringement of those provisions, they do not have the power to withdraw the authorisations of credit institutions, which falls exclusively within the competence of the ECB.

55      In the light of the foregoing, the present complaint must be rejected.

(2)    The second complaint, concerning the ECB’s lack of competence as regards resolution matters

56      The applicant submits, in essence, that the ECB does not have competence as regards resolution matters, irrespective of the size of the institution. Moreover, the reference in the FCMC’s initial draft decision to the adoption of a resolution action and to the liquidation of the applicant provides further clarification on the nature of the contested decision.

57      The ECB and the Commission contest the applicant’s arguments.

58      In that regard, it is sufficient to note that the contested decision was adopted pursuant to Regulation No 1024/2013, concerning policies relating to the prudential supervision of credit institutions, and not pursuant to Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

59      In addition, by the contested decision, the ECB withdrew the applicant’s banking authorisation, and did not resolve the applicant.

60      In the light of the foregoing, the present complaint must be rejected.

(3)    The third complaint, relating to the ECB’s limited competence over the prudential supervision of credit institutions

61      The present complaint is based on five arguments.

62      The first argument relates to failure to observe the limitations laid down in recital 15 of Regulation No 1024/2013. The second argument relates to the unlawfulness of Article 4(3) of that regulation. The third argument relates to the specific restrictions on the application of national law on authorisation. The fourth argument relates to the absence of a distinction between powers and tasks. The fifth argument relates to the need to adopt decisions at national level prior to withdrawal of the authorisation.

(i)    The first argument, relating to failure to observe the limitations laid down in recital 15 of Regulation No 1024/2013

63      The applicant submits, in essence, that the ECB completely disregarded the limitations laid down in recital 15 of Regulation No 1024/2013, according to which the ECB has competence only with respect to specific supervisory tasks which are crucial to ensuring a coherent and effective implementation of EU policy relating to the prudential supervision of credit institutions. The other supervisory tasks, in its view, fall within the competence of the national authorities. The ECB failed to explain in the contested decision which EU policy on prudential supervision it intended to further by adopting that decision.

64      The ECB and the Commission contest the applicant’s arguments.

65      In that regard, it is sufficient to note, as the ECB submits, that recital 15 of Regulation No 1024/2013, which states that the powers that are not conferred on it remain vested in the competent national authorities, does not call into question the ECB’s exclusive competence to withdraw authorisations from credit institutions, provided for by Article 4(1)(a) and Article 14(5) of that regulation.

66      Moreover, it is apparent from the examination of the interaction between Article 4(1) and Article 6 of Regulation No 1024/2013 that the logic of the relationship between them consists in allowing the exclusive competences delegated to the ECB to be implemented within a decentralised framework, rather than having a distribution of competences between the ECB and the national competent authorities of participating Member States in the performance of the tasks referred to in Article 4(1) of that regulation. That finding is supported by a reading of the recitals of that regulation. First, it is apparent from recitals 15 and 28 of that regulation that only those tasks explicitly entrusted to the ECB fall outside the competence of the Member States and that prudential supervision of financial institutions on grounds other than those listed in Article 4(1) of that regulation continues to fall within the competence of the Member States. It necessarily follows that it is at the stage of the definition of the tasks entrusted to the ECB by Article 4(1) of the regulation concerned that the competences between the ECB and those authorities were distributed. Secondly, it should be noted that, although recital 28 of the regulation concerned provides a list of the supervisory tasks that are to remain within the remit of the national authorities, it does not include any of the tasks listed in Article 4(1) of that regulation. Nor does that recital present direct supervision of less significant entities as constituting the exercise of a competence falling within the remit of the national authorities (see, to that effect, judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraphs 54 to 57).

67      Lastly, as regards the claim that the ECB failed to explain which EU policy on prudential supervision it intended to further by adopting the contested decision, it is sufficient to recall that, under Article 1(1) of Regulation No 1024/2013, that regulation confers on the ECB specific tasks concerning policies relating to the prudential supervision of credit institutions, with a view to contributing to the safety and soundness of credit institutions and the stability of the financial system within the European Union and each Member State, with full regard and duty of care for the unity and integrity of the internal market based on equal treatment of credit institutions with a view to preventing regulatory arbitrage.

68      Accordingly, the present argument must be rejected.

(ii) The second argument, relating to the unlawfulness of Article 4(3) of Regulation No 1024/2013

69      The applicant submits, in essence, that the ECB is not empowered to apply and implement national law. It submits, in that regard, that Article 4(3) of Regulation No 1024/2013 is unlawful. National law transposing directives or exercising options under regulations is national law and not EU law. The Council cannot alter that. Nor can it deprive national courts and, in particular, national constitutional courts of the possibility of exercising judicial review as regards a specific type of national law.

70      The ECB and the Commission contest the applicant’s arguments.

71      In that regard, it is sufficient to note that the present plea of illegality was not raised by the applicant until the stage of the reply. As stated in paragraphs 43 and 44 above, a plea of illegality raised at the stage of the reply is inadmissible and the Court cannot raise those issues of its own motion, since they are not a matter of public policy.

72      Furthermore, the plea of illegality is not based on any matter of law or of fact which came to light in the course of the procedure within the meaning of Article 84 of the Rules of Procedure.

73      Accordingly, the present argument must be rejected.

(iii) The third argument, relating to the specific limitations as to the application of national law in connection with authorisations

74      The applicant submits, in essence, that the provisions of Regulation No 1024/2013 relating specifically to authorisations clearly provide that the ECB is not empowered to apply national law and that decisions in that regard must be taken by the national authorities such that those decisions can be subject to judicial review by the national courts. In its view, as regards the grant of authorisation, it follows from Article 14(2) and (3) of that regulation that the competent national authority applies only national law, that the ECB applies only EU law and that the decision of the national authority is subject to review by the national courts and the ECB’s decision to review by the Courts of the European Union. The same follows from paragraph 5 of that article, concerning withdrawal of authorisations.

75      The ECB and the Commission contest the applicant’s arguments.

76      In that regard, it must be borne in mind that, under Article 4(1)(a) of Regulation No 1024/2013, and subject to Article 14 of that regulation, the ECB is exclusively competent, in respect of the tasks entrusted to it by that regulation, to authorise credit institutions established in the Member States participating in the Single Supervisory Mechanism and to withdraw authorisations from those institutions.

77      Under Article 14(5) of Regulation No 1024/2013, the ECB may withdraw the authorisation in the cases set out in relevant EU law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such national competent authority.

78      Moreover, Article 4(3) of Regulation No 1024/2013 provides that, for the purposes of carrying out the tasks conferred on it by that regulation, and with the objective of ensuring high standards of supervision, the ECB is to apply all relevant EU law, and where the EU law is composed of directives, the national legislation transposing those directives.

79      It follows that, in order to carry out the task entrusted to it by Article 4(1)(a) of Regulation No 1024/2013, the ECB is required to apply not only EU law but also the provisions of national law transposing the directives. The ECB was therefore competent to apply national law transposing a directive.

80      Accordingly, the present argument must be rejected.

(iv) The fourth argument, relating to the absence of a distinction between powers and tasks

81      The applicant submits, in essence, that, by describing in the contested decision its objective as ‘restoring legality’, the ECB assumes the most all-encompassing competence and one that is inconceivable. It would thus be possible, for example, for it to withdraw a bank’s authorisation on the ground, inter alia, that that bank did not comply with the COVID rules in force or that its principal building did not comply with the safety rules on construction.

82      The ECB and the Commission contest the applicant’s arguments.

83      In that regard, first, it is sufficient to recall that Regulation No 1024/2013, under Article 1(1) thereof, confers on the ECB specific tasks concerning policies relating to the prudential supervision of credit institutions, with a view to contributing to the safety and soundness of credit institutions and the stability of the financial system within the European Union and each Member State, with full regard and duty of care for the unity and integrity of the internal market based on equal treatment of credit institutions with a view to preventing regulatory arbitrage.

84      Secondly, Article 18 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338) exhaustively lists the cases in which the competent authorities may withdraw an authorisation. The grounds set out by the applicant are not among them.

85      Accordingly, the present argument must be rejected.

(v)    The fifth argument, relating to the need to adopt, at national level, decisions preceding the withdrawal of authorisation

86      The applicant submits, in essence, that it is necessary for the ECB to permit the adoption at national level of all the decisions which must precede the withdrawal of authorisation, that withdrawal constituting a measure of last resort. That need is particularly emphasised in Article 14(6) of Regulation No 1024/2013 as regards resolution decisions. The breach of that requirement is particularly flagrant in the present case, since the applicant was not heard by the competent national authority before the draft decision withdrawing authorisation was sent to the ECB.

87      The ECB and the Commission contest the applicant’s arguments.

88      In that regard, first of all, it should be noted that Article 18 of Directive 2013/36, which provides for the cases in respect of which the competent authorities may withdraw authorisation, does not render that measure dependent on measures taken previously. Thus, contrary to what is claimed by the applicant, withdrawal of authorisation is not a measure which can be adopted only as a last resort, where other measures have failed. It is clear from that article that recourse to that measure is determined by the nature of the breaches found of the applicable regulatory requirements.

89      Next, it has been pointed out in paragraphs 58 and 59 above that, by the contested decision, the ECB withdrew the applicant’s banking authorisation and did not resolve the applicant, with the result that Article 14(6) of Regulation No 1024/2013, which concerns resolution procedures, is not applicable in the present case.

90      Lastly, it should be borne in mind that, according to the case-law, where the acts of the national authorities constitute a stage of a procedure in which an EU institution exercises, alone, the final decision-making power without being bound by the preparatory acts or the proposals of the national authorities, it falls to the EU Courts, by virtue of their exclusive jurisdiction to review the legality of EU acts on the basis of Article 263 TFEU, to rule on the legality of a final decision adopted by the ECB and to examine, in order to ensure effective judicial protection of the persons concerned, any defects vitiating the preparatory acts or the proposals of the national authorities that would be such as to affect the validity of that final decision (judgment of 19 December 2018, Berlusconi and Fininvest, C‑219/17, EU:C:2018:1023, paragraphs 43 and 44).

91      It should be noted that Article 31 of the SSM Framework Regulation, which governs the right to be heard of the entities subject to prudential supervision, does not provide for the possibility for those entities to comment before the competent national authority has sent the draft withdrawal decision to the ECB. Consequently, the fact that the applicant was not heard before that draft decision was sent cannot render the contested decision unlawful.

92      Accordingly, the present argument must be rejected, as must, thus, both the present complaint and the present part of the plea in their entirety.

93      In the light of all of the foregoing, the present plea must be rejected.

2.      The first plea, alleging infringement of Article 24 of Regulation No 1024/2013

94      The present plea consists of eight complaints.

95      The first complaint relates to the compliance of the contested decision with Article 24(7) of Regulation No 1024/2013. The second complaint relates to the ECB’s failure to reply to the questions of the Board of Review and to the right to be heard. The third complaint relates to the inadequate representation of the applicant during the review procedure. The fourth complaint relates to the infringement of the applicant’s right to be heard before the contested decision was adopted. The fifth complaint relates to the applicant’s right of access to the file. The sixth complaint relates to an inadequate statement of reasons in the contested decision. The seventh complaint relates to withdrawal of the applicant’s authorisation by the ECB on its own initiative. The eighth complaint relates to the change in the opinion of the FCMC concerning withdrawal of authorisation.

(a)    The first complaint, relating to the compliance of the contested decision with Article 24(7) of Regulation No 1024/2013

96      The applicant claims, in essence, that the contested decision infringes Article 24(7) of Regulation No 1024/2013, inasmuch as it is not compliant with that provision. In that regard, first, the applicant submits that the Board of Review found a failure to state reasons in the first decision, with the result that that decision should be declared void ab initio or, as the case may be, abrogated in accordance with that provision. Secondly, a decision taken pursuant to that provision can give rise to only three results: abrogation of the original decision, its replacement by a decision the content of which is identical or its replacement by an amended decision. Consequently, a decision taken pursuant to such a provision should, in any event, produce effects ex tunc, and not effects at a later date, as occurred with the contested decision in the present case. Thirdly, in so far as the latter decision does not repeal the first decision ab initio in respect of the illegalities found by the Board of Review, it is vitiated by those illegalities.

97      The ECB and the Commission contest the applicant’s arguments.

98      In that regard, it should be noted at the outset that the subject matter of the present action is an application for annulment of the contested decision, and not an application for annulment of the first decision. It follows that the review of legality carried out by the Court in the present action cannot extend to the first decision.

99      Moreover, the first decision has already been the subject of an action for annulment before the Court on which there was no longer any need to adjudicate, since it had become devoid of purpose as a result of the replacement, with retroactive effect, of that decision by the contested decision, as recalled in paragraph 14 above.

100    Consequently, the applicant’s line of argument relating to the first decision must be rejected as ineffective.

101    Moreover, it should be noted that the applicant’s line of argument is based on the incorrect premiss that, first, the Board of Review found, in its opinion of 30 May 2016, that the first decision was vitiated by a failure to state reasons and, secondly, the contested decision does not have ‘ex tunc’ effect, since it produced its effects on 13 July 2016, and not on 3 March 2016 like the first decision.

102    Although it is true that, concerning the first decision, the Board of Review in its opinion of 30 May 2016 recommended that the ECB clarify certain elements, and in particular the reasons why the initial draft decision had been amended, it nevertheless found that the final version of that decision contained clear, elaborate and irrefutable reasoning based on facts justifying withdrawal of the applicant’s authorisation. It follows that, contrary to what the applicant claims, that board did not consider that that decision was inadequately reasoned. On the contrary, it considered that the procedural and substantive infringements alleged by the appellant were unfounded and that that decision was sufficiently reasoned and proportionate.

103    Consequently, given that the Board of Review neither found that the first decision was vitiated by a failure to state reasons nor considered the procedural and substantive infringements alleged by the applicant to be well founded, the applicant cannot criticise the ECB for failing to abrogate that decision ab initio in the contested decision on the grounds of the alleged illegalities. Similarly, it cannot profitably maintain that the latter decision is vitiated by the same illegalities.

104    Furthermore, Article 24(7) of Regulation No 1024/2013 provides that the review procedure may lead to three outcomes. The first consists in the simple abrogation of the initial decision. The second consists in replacing the initial decision with an identical decision. The third consists in replacing the initial decision with an amended decision (order of 17 November 2021, Trasta Komercbanka v ECB, T‑247/16 RENV, not published, EU:T:2021:809, paragraph 47).

105    Article 24(7) of Regulation No 1024/2013 also establishes an obligation on the part of the ECB to adopt a decision, following the review, which is retroactive to the time at which the original decision took effect, whatever the outcome of that review (order of 17 November 2021, Trasta Komercbanka v ECB, T‑247/16 RENV, not published, EU:T:2021:809, paragraph 48).

106    In particular, if the Supervisory Board and the Governing Council consider that the initial decision, pursuant to which the credit institution’s authorisation was withdrawn, is valid, the Governing Council does not simply reject the request for review on the merits, but rather, in accordance with Article 24(7) of Regulation No 1024/2013, adopts a decision that is identical to the one subject to that review. Nevertheless, in such a case, it is not possible to withdraw the same authorisation a second time. A decision identical in content to the reviewed decision can therefore only replace the latter with retroactive effect as from the time at which the reviewed decision took effect (order of 17 November 2021, Trasta Komercbanka v ECB, T‑247/16 RENV, not published, EU:T:2021:809, paragraph 49).

107    That interpretation, which results from the nature of the measures at issue, is also valid where the Supervisory Board and the Governing Council consider that withdrawal of authorisation is not justified or that the shortcomings identified can be remedied by less onerous measures. In such a situation, the act abrogating withdrawal of authorisation or imposing those measures must have retroactive effect so as to cancel ex tunc the withdrawal of the credit institution’s authorisation and, where appropriate, replace it with the measure considered to be the most appropriate. In the absence of such retroactive effect, the review decision could only have effect if a new authorisation was granted in accordance with the procedure laid down in Article 14 of Regulation No 1024/2013 (order of 17 November 2021, Trasta Komercbanka v ECB, T‑247/16 RENV, not published, EU:T:2021:809, paragraph 50).

108    That assessment is indirectly, but necessarily, confirmed by Article 24(8) of Regulation No 1024/2013 and by Article 9(1) of Decision 2014/360/EU of 14 April 2014 concerning the establishment of an Administrative Board of Review and its Operating Rules (OJ 2014 L 175, p. 47), according to which the request for review is not to have suspensory effect on the application of the contested decision. It follows that the replacement of the reviewed decision by an amended decision must be made with retroactive effect as from the time at which the reviewed decision took effect, as otherwise the final decision cannot have any practical effect (order of 17 November 2021, Trasta Komercbanka v ECB, T‑247/16 RENV, not published, EU:T:2021:809, paragraph 51).

109    It is also apparent from the foregoing analysis that the replacement of the initial decision by an identical or amended decision at the end of the review procedure results in the definitive disappearance of the initial decision from the legal order (order of 17 November 2021, Trasta Komercbanka v ECB, T‑247/16 RENV, not published, EU:T:2021:809, paragraph 52).

110    In the present case, it is apparent from the operative part of the contested decision that the ECB, pursuant to Article 24(7) of Regulation No 1024/2013, decided that the first decision was to be replaced in its entirety and abrogated at the date and time of its notification to the applicant. It is also apparent from that operative part that the ECB decided that the withdrawal of authorisation remained continuously in effect as from 23.00 on the date of notification of the first decision. It follows that the contested decision entirely replaced the first decision with effect from the date of notification of that decision, the date on which withdrawal of the authorisation was to take effect.

111    Therefore, contrary to what the applicant claims, the contested decision produces effects ex tunc, as provided for in Article 24(7) of Regulation No 1024/2013.

112    In any event, it should be noted that the contested decision was adopted following the administrative review initiated by the applicant against the first decision and is identical in content to that decision, within the meaning of Article 24(7) of Regulation No 1024/2013.

113    It follows that, by virtue of the contested decision, the ECB, in accordance with the legal framework governing the administrative review procedure, replaced the first decision with retroactive effect as from the point at which the first decision took effect.

114    In the light of the foregoing, the present complaint must be rejected.

(b)    The second complaint, relating to the ECB’s failure to reply to the questions of the Board of Review and to the right to be heard

115    The applicant submits, in essence, that, since the ECB did not answer a number of essential questions of the Board of Review, that board was not able to have access to all the relevant information before delivering its opinion and discharging its responsibilities under Article 24 of Regulation No 1024/2013. Furthermore, by failing to answer all the questions, the ECB deprived the applicant of the opportunity to comment on the answers which the ECB should have given to those questions.

116    The ECB and the Commission contest the applicant’s arguments.

117    In that regard, it should be noted at the outset that the present complaint is not directed, in reality, at the ECB, in its capacity as author of the contested decision, but at the Board of Review, on the grounds that the latter infringed its obligations and responsibilities under Article 24(1) of Regulation No 1024/2013.

118    Furthermore, it should be noted that the applicant does not identify the essential information to which the Board of Review allegedly did not have access before giving its opinion. Furthermore, it does not explain how the ECB’s failure to reply to certain questions of that board prevented the board from discharging its obligations and responsibilities. It merely alleges that that board infringed Article 24(1) of Regulation No 1024/2013.

119    It follows that, on any view, the line of argument at issue is not in itself sufficient to prove the alleged infringement of Regulation No 1024/2013 and, subsequently, the infringement of the applicant’s right to be heard.

120    In the light of the foregoing, the present complaint must be rejected.

(c)    The third complaint, relating to the inadequate representation of the applicant during the review procedure

121    The applicant submits, in essence, that the ECB did not guarantee it adequate representation during the review procedure by taking the view that only the liquidator represented it and not also the lawyer instructed by the applicant’s management, so that the applicant’s most basic procedural rights, including its right to be heard, were not observed.

122    The ECB and the Commission contest the applicant’s arguments.

123    In that regard, it must be recalled that the rights of the defence, which include the right to be heard, are among the fundamental rights which form an integral part of the EU legal order and are enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgments of 23 September 2015, Cerafogli v ECB, T‑114/13 P, EU:T:2015:678, paragraph 32 and the case-law cited, and of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 53).

124    The right to be heard is protected not only by Articles 47 and 48 of the Charter, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also by Article 41 of the Charter, which guarantees the right to good administration.

125    Article 41(2) of the Charter thus provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken (see, to that effect, judgment of 5 October 2016, ECDC v CJ, T‑395/15 P, not published, EU:T:2016:598, paragraph 54 and the case-law cited).

126    That principle requires that the addressees of decisions which significantly affect their interests should be afforded the opportunity to make known their views on the facts alleged against them on which the decision at issue is based (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 66, and of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraph 38).

127    In the present case, it is clear from points 1 and 5 of the Board of Review’s opinion of 30 May 2016 that, during the review procedure, the applicant (i) was duly represented and (ii) submitted its observations concerning the procedural and substantive infringements allegedly vitiating the first decision. First, the applicant was represented by the same legal counsel throughout those proceedings, who, moreover, is the same as that before the Court. Secondly, after submitting its request for review, it was invited by the ECB, by the communications of 4, 5, 7 and 8 April 2016, to supplement that request. It was also informed of its right of access to the file, a right which it exercised on 22 April 2016. Thirdly, by email from the ECB of 18 April 2016, it was formally invited to attend a hearing at the Board of Review, which was held on 27 April 2016 and which it attended.

128    In those circumstances, since it was actually represented throughout the review procedure by the lawyer appointed by its management, and it was able to submit its comments and had access to the file relating to the administrative procedure, which it does not dispute, the applicant cannot validly rely on an infringement of its rights of defence and, in particular, of its right to be heard.

129    Furthermore, the obligation to observe the right to be heard and the rights of the defence do not imply an obligation for an institution to adopt a decision in the manner envisaged by the applicant.

130    In any event, the applicant does not explain, with sufficient precision and clarity, how exactly its right to be heard and its rights of defence were infringed during the review procedure or how that procedure, without those irregularities, could have led to a different outcome. In accordance with the case-law, an infringement of the right to be heard or of the right of access to the file has no effect on the validity of the contested decision where it is not established that the outcome of the procedure might have been different without the alleged irregularity (see, to that effect, judgment of 14 May 2019, Marinvest and Porting v Commission, T‑728/17, not published, EU:T:2019:325, paragraph 57 and the case-law cited).

131    In the light of the foregoing, the present complaint must be rejected.

(d)    The fourth complaint, relating to infringement of the applicant’s right to be heard before the adoption of the contested decision

132    The applicant submits, in essence, that the ECB, by considering that it was not necessary to hear it before the adoption of the contested decision, infringed its right to be heard, provided for in Article 31 of the SSM Framework Regulation.

133    The ECB and the Commission contest the applicant’s arguments.

134    As a preliminary point in that regard, it must be noted, first, that Article 31(1) of the SSM Framework Regulation provides that ‘before the ECB may adopt an ECB supervisory decision addressed to a party which would adversely affect the rights of such party, the party must be given the opportunity of commenting in writing to the ECB on the facts, objections and legal grounds relevant to the ECB supervisory decision’.

135    Secondly, it has been recalled, in paragraphs 123 to 126 above, that the rights of the defence, which include the right to be heard, are among the fundamental rights which form an integral part of the EU legal order and are enshrined in the Charter. That principle requires that the addressees of decisions which significantly affect their interests should be afforded the opportunity effectively to make known their views on the facts alleged against them on which the decision at issue is based.

136    In the present case, first, the contested decision was adopted at the end of the review procedure, during which, as noted in paragraph 127 above, the applicant was able freely to comment. After submitting its request for review, the applicant (i) was invited by the ECB to supplement that request, (ii) was informed of its right of access to the file, that it exercised on 22 April 2016, and (iii) attended a hearing at the Board of Review on 27 April 2016.

137    Next, the contested decision was adopted on the basis of facts and legal grounds identical to the first decision, in respect of which the applicant was heard, which, moreover, it does not dispute. Specifically, it is apparent from the contested decision that the applicant was twice invited by the ECB to comment on the draft decisions sent before the adoption of the first decision and that it supplemented its second comments with additional information which, despite its late submission, was nevertheless examined by the ECB.

138    Lastly, the applicant does not identify the facts, reasons and legal bases in the contested decision in respect of which it was unable effectively to make known its views before the adoption of that decision and does not explain how that decision could have had a different outcome if it had been heard again. As was pointed out in paragraph 130 above, an infringement of the right to be heard is, according to the case-law, irrelevant to the validity of the contested decision where it is not established that the outcome of the procedure might have been different without the alleged irregularity.

139    Consequently, the fact that the applicant was not heard again before the contested decision was adopted is not, in the present case, such as to affect the lawfulness of that decision.

140    In the light of the foregoing, the present complaint must be rejected.

(e)    The fifth complaint, relating to the applicant’s right of access to the file

141    The applicant submits, in essence, that the ECB infringed its right of access to the file by stating falsely and entirely inconceivably that, with the exception of the two publications in the Latvijas Vēstnesis, no other document had been ‘obtained, produced or assembled by the ECB during the ECB’s supervisory procedure, irrespective of the medium of storage’.

142    The ECB and the Commission contest the applicant’s arguments.

143    As a preliminary point, it should be recalled that, under Article 22(2) of Regulation No 1024/2013 and Article 32 of the SSM Framework Regulation, ‘the rights of defence of the persons concerned shall be fully respected in the proceedings’, ‘they shall be entitled to have access to the ECB’s file, subject to the legitimate interest of other persons in the protection of their business secrets’ and ‘the right of access to the file shall not extend to confidential information’.

144    Furthermore, according to the case-law, the right of access to the file means that the institution concerned must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, internal documents or other confidential information are involved (see, to that effect and by analogy, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68 and the case-law cited).

145    In the present case, it should be noted at the outset that the applicant does not deny having had access to the file after the submission of its request for review and merely states that it is inconceivable that, with the exception of the two publications in the Latvijas Vēstnesis, no other document, confidential or not, was obtained, produced or assembled by the ECB, in addition to those in the list which was delivered to it on 22 April 2016.

146    In that regard, it should be noted that the applicant has not adduced the slightest evidence in support of the claim at issue and does not explain how its right of access to the file was infringed.

147    In those circumstances, such an argument is not, in itself, sufficient to establish the existence of an infringement of its right of access to the file.

148    In any event, it must be pointed out, as was observed in paragraph 130 above, that, according to the case-law, an infringement of the right of access to the file has no effect on the validity of the contested decision where it is not established that the outcome of the procedure might have been different without the alleged irregularity.

149    In the light of the foregoing, the present complaint must be rejected.

(f)    The sixth complaint, relating to the inadequate statement of reasons in the contested decision

150    The applicant submits, in essence, that the contested decision does not contain an adequate statement of reasons, since (i) the Supervisory Board merely perfunctorily discharged its task of responding to the questions asked by the Board of Review and (ii) the ECB did not address openly in the contested decision the admissibility of the request for review.

151    The ECB and the Commission contest the applicant’s arguments.

152    In that regard, so far as concerns, first, the argument that the Supervisory Board merely perfunctorily complied with the recommendations of the Board of Review, it should be recalled that, under Article 16 of Decision 2014/360, the Board of Review’s opinion is not binding on either the Supervisory Board or the Governing Council. The applicant cannot, therefore, validly claim that the statement of reasons for the contested decision was defective on the ground that the Supervisory Board merely perfunctorily complied with the Board of Review’s recommendations.

153    As regards, secondly, the argument that the ECB did not openly in the contested decision address the admissibility of its request for review, it should be noted that, by that argument, the applicant is in fact challenging the merits of the grounds of that decision, which does not fall within the scope of the obligation to state reasons but within that of the substantive legality of the decision, and which must be distinguished from that obligation.

154    In any event, the applicant cannot profitably claim that the statement of reasons for the contested decision was defective on the ground that the ECB did not openly address the admissibility of the request for review submitted.

155    In that regard, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 124 and the case-law cited).

156    In the present case, the contested decision sets out clearly and unequivocally the matters of fact and law on which the ECB relied in deciding to withdraw the applicant’s authorisation. In particular, after recalling in that decision, in point 1, the legal framework applicable, in point 2, the procedure, in point 3, the facts giving rise to the case and, in point 4.1, the irregularities found in relation to the applicant which led the FCMC to propose withdrawal of its authorisation, the ECB found, in point 4.2 (a) to (g), that the applicant did not meet the global capital requirements or the requirements of Pillar 2 and moreover did not comply with the large exposure limits and several other requirements laid down by the Latvian Law on Credit Institutions, such as the requirements relating to the functioning of the internal control system, anti-money laundering requirements, a prudent strategy and requirements relating to the reputation of shareholders of qualifying holdings. It then found, in point 4.2 (h) of that decision, that the applicant had not taken any immediate, effective and reliable actions to eliminate those deficiencies and had not provided any material evidence that it would have adopted decisions likely to improve its operations effectively and promptly. Finally, it considered that, in those circumstances, withdrawal of the applicant’s authorisation was an adequate and proportionate measure.

157    Furthermore, as noted in paragraph 155 above, it is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. The statement of reasons for the contested decision enabled the applicant to understand the reasons warranting its adoption and to formulate its objections and enabled the Courts of the European Union to exercise their power of review.

158    In the light of the foregoing, the present complaint must be rejected.

(g)    The seventh complaint, relating to withdrawal of the applicant’s authorisation on the ECB’s own initiative

159    The applicant submits, in essence, that the ECB infringed Article 14 of Regulation No 1024/2013 by adopting the contested decision on its own initiative, instead of relying on the FCMC’s proposed withdrawal of 5 February 2016.

160    The ECB and the Commission contest the applicant’s arguments.

161    In that regard, it is clear from the contested decision, and more specifically from the part entitled ‘Conclusion’, that that decision, which was adopted following the review of the first decision, was adopted by the ECB on the basis of the information provided by the FCMC in its proposed withdrawal of 5 February 2016.

162    In addition, it has been pointed out in paragraphs 52 and 53 above that, under Article 4(1)(a) of Regulation No 1024/2013, and subject to Article 14 of that regulation, the ECB alone is competent to withdraw the authorisations of credit institutions, irrespective of the significance of those institutions. In addition, Article 14(5) of Regulation No 1024/2013 provides that the ECB may withdraw the authorisation in the cases set out in relevant EU law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such national authority. Where the national competent authority which has proposed the authorisation in accordance with paragraph 1 of that article considers that the authorisation must be withdrawn in accordance with the relevant national law, it is to submit a proposal to the ECB to that end. In that case, the ECB is to take a decision on the proposed withdrawal taking full account of the justification for withdrawal put forward by that authority.

163    The applicant cannot therefore, in any event, reasonably complain that the ECB acted in breach of Article 14 of Regulation No 1024/2013 on the ground that it did not adopt the contested decision on the basis of the FCMC’s proposed withdrawal of 5 February 2016.

164    In the light of the foregoing, the present complaint must be rejected.

(h)    The eighth complaint, relating to the change in the opinion of the FCMC concerning withdrawal of the applicant’s authorisation

165    The applicant submits, in essence, that the ECB infringed Article 14 of Regulation No 1024/2013 by not treating the FCMC as part of a single supervisory mechanism. In its view, the ECB was not able to explain the change in the opinion of the FCMC, between the latter’s decision of 22 January 2016 in which it considered that a withdrawal of authorisation was not appropriate and the proposal for withdrawal of 5 February 2016. In addition, it claims that, by submitting a manipulated English version of that decision, the ECB sought to conceal the fact that it had discussed that change of opinion with the FCMC.

166    The ECB and the Commission contest the applicant’s arguments.

167    As regards, first, the argument that the ECB was not able to explain the change in the FCMC’s opinion concerning withdrawal of authorisation between the latter’s decision of 22 January 2016 and the proposal for withdrawal of 5 February 2016, it is sufficient to note, in that regard, that it is apparent from the provisions referred to in paragraph 162 above that any decision withdrawing authorisation is taken by the ECB independently, on the basis of its own assessment of the relevant circumstances of the case.

168    Therefore, since the ECB is not required to follow the draft withdrawal decision submitted by the national competent authority concerned and since any decision to withdraw authorisation is taken by it independently, on the basis of its own assessment, the applicant’s argument that the ECB was not able to explain the change in the opinion of the FCMC concerning withdrawal of authorisation, even if it were required to do so, cannot, in any event, make out an infringement of Article 14 of Regulation No 1024/2013 by the ECB and, as a result, cause the contested decision to be vitiated by illegality.

169    As regards, secondly, the allegation that the ECB sought to conceal the fact that it had been in discussion with the FCMC, it is sufficient to note, in that regard, that the applicant merely asserts, without adducing the slightest evidence in support of its conjecture, that the ECB deliberately concealed relevant information from it during the procedure. Such an allegation is not in itself sufficient to establish the existence of an infringement of its rights of defence on the ground that it did not have full access to the file. In particular, as regards the incorrect English translation of the decision of the FCMC of 22 January 2016, it is apparent from the file that the applicant had access, before the adoption of the contested decision, to the full text of the FCMC’s decision of 22 January 2016 as translated into English by the ECB’s language services. In any event, that decision had already been forwarded to it in the official language of the Member State in which it has its registered office.

170    Furthermore, as noted in paragraph 130 above, an infringement of the right of access to the file is, according to the case-law, irrelevant to the validity of the contested decision where it is not established that the outcome of the procedure might have been different without the alleged irregularity.

171    In the light of the foregoing, the present complaint must be rejected and, accordingly, the plea must be rejected in its entirety.

3.      The second plea, alleging infringement by the ECB of its obligation to examine and appraise carefully and impartially all the relevant aspects of the case

172    The present plea comprises six complaints.

173    The first complaint alleges the ECB’s failure to examine the facts. The second complaint alleges inaccuracies and manipulation in the FCMC’s file. The third complaint relates to the expertise and experience of the ECB. The fourth complaint alleges failure on the part of the ECB to take the Latvian context into consideration when assessing the facts of the case. The fifth complaint alleges the ECB’s counter-productive responses to inaccuracies and manipulation on the part of the FCMC. The sixth complaint alleges a refusal to accept the full extent of the manipulation on the part of the FCMC.

174    As a preliminary point, it should be recalled that, according to the case-law, the duty of care entails the duty of the institution concerned to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, judgment of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14).

(a)    The first complaint, alleging the ECB’s failure to examine the facts

175    The applicant submits, in essence, that the contested decision is not based on any finding of fact made by the ECB. That decision is based solely on the facts as established by the FCMC and its statement of reasons contains almost exclusively references to the appraisals of the FCMC, which are, moreover, very generic and broad.

176    The ECB and the Commission contest the applicant’s arguments.

177    In that regard, while it is true that, in the contested decision, the ECB relies on the prudential supervision history and the breaches of prudential requirements established by the FCMC, it nevertheless sets out its own assessments, which appear in the parts entitled ‘Assessment’ and ‘Conclusion’ of the contested decision.

178    In particular, first of all, in point 4.2 (a) to (g) of the contested decision, the ECB found that the applicant did not meet the global capital requirements or the Pillar 2 requirements, nor did it observe the large exposure limits or several other requirements laid down by the Law on Credit Institutions, such as those relating to the operation of the internal control system, to anti-money laundering, to a prudent strategy and to the reputation of shareholders of qualifying holdings.

179    Next, in point 4.2 (h) of the contested decision, the ECB stated that the applicant had not taken any immediate, effective and reliable actions to eliminate those deficiencies and had not provided any significant evidence that it would have taken decisions likely to improve its operations effectively and promptly.

180    Finally, in paragraph 4.2 of the contested decision, the ECB took the view that, against that backdrop, withdrawal of the applicant’s authorisation was an adequate and proportionate measure.

181    It follows that, contrary to what is claimed by the applicant, the ECB did not merely reproduce in the contested decision the findings made by the FCMC in its proposal for withdrawal of 5 February 2016.

182    Furthermore, it should be noted that the applicant does not identify the relevant aspects of the case which allegedly were not examined and assessed with care and impartiality by the ECB. It merely takes issue with the ECB for failing to carry out an independent assessment of the facts of the case. Such a criticism, made generally and without supporting evidence, cannot reasonably succeed.

183    In the light of the foregoing, the present complaint must be rejected.

(b)    The second complaint, alleging inaccuracies and manipulation in the FCMC’s file

184    The applicant submits, in essence, that, in view of the inaccuracies and manipulation in the FCMC’s proposal for withdrawal of 5 February 2016, relating, first, to its imminent and inevitable illiquidity and, secondly, to an inaccurate and misleading English translation of the decision of the FCMC of 22 January 2016, the ECB should have been led to undertake a thorough and complete re-examination of the facts. It claims that the inaccuracies and manipulation in that proposal are highlighted by the considerable differences between that proposal and the draft amended decision of the FCMC of 21 February 2016. The applicant also submits that the fact that the ECB’s decision was prepared to some extent (in fact to a very large extent) by the FCMC nevertheless does not mean that that part of the procedure and the decision-making process is exempted from judicial scrutiny.

185    The ECB and the Commission contest the applicant’s arguments.

186    As regards inaccuracies and manipulation in the FCMC’s initial draft decision, first, in respect of the applicant’s imminent and inevitable illiquidity, it should be noted at the outset that the decision to withdraw authorisation was not taken by the ECB because of deficiencies in the applicant’s liquidity or its lack of liquidity. It should also be noted that nowhere in the FCMC’s proposed withdrawal dated 5 February 2016 does it appear that the latter considered the applicant’s illiquidity to be imminent and inevitable. In that draft decision, the FCMC found only that the applicant’s liquidity, while exceeding the 60% requirement, was deteriorating. In particular, it noted that the local liquidity ratio was 79.42% on 18 December 2015 and 69.96% on 20 January 2016.

187    Secondly, as regards the inaccurate and misleading translation of the decision of the FCMC of 22 January 2016, although it is true that a provisional and incomplete translation was initially placed on the file, it was noted in paragraph 169 above, however, that the applicant had had access, before the adoption of the contested decision, to the full text of the FCMC’s decision of 22 January 2016 in its English translation produced by the ECB’s language services and that, in any event, that official decision had already been forwarded to it in the official language of the Member State in which it had its registered office.

188    Thirdly, as regards the differences between the initial draft decision and the draft amended decision of the FCMC, it should be noted, as is apparent from the contested decision and from the opinion of the Board of Review, that the applicant was invited in the course of the procedure on several occasions to submit its comments on that initial draft decision and that those comments were duly taken into account, since, on the basis of those comments, an amended draft decision was proposed by the FCMC to the ECB.

189    Consequently, the inaccuracies and manipulation alleged are unfounded.

190    Finally, as regards the applicant’s argument that the fact that the ECB decision was prepared to some extent by the FCMC nevertheless does not mean that that part of the procedure and the decision-making process is exempt from judicial scrutiny, it should be noted, as has been recalled in paragraph 90 above, that, where the acts adopted by the national authorities constitute a stage of a procedure in which an EU institution exercises, alone, the final decision-making power without being bound by the preparatory acts or the proposals of the national authorities, it falls to the EU Courts, by virtue of their exclusive jurisdiction to review the legality of EU acts on the basis of Article 263 TFEU, to rule on the legality of a final decision adopted by the ECB and to examine, in order to ensure effective judicial protection of the persons concerned, any defects vitiating the preparatory acts or the proposals of the national authorities that would be such as to affect the validity of that final decision.

191    In the light of the foregoing, the present complaint must be rejected.

(c)    The third complaint, relating to the expertise and experience of the ECB

192    The applicant submits, in essence, that the ECB’s expertise and experience in the field of banking regulation were not used in the present case. It submits in that regard that important and urgent matters, such as the initial statement regarding its imminent illiquidity, were not distinguished from secondary matters or those of no relevance. Furthermore, many of the factual statements are overly simplistic and sweeping assertions, expressed in layman’s language.

193    The ECB and the Commission contest the applicant’s arguments.

194    In the present case, first, it has been held in paragraph 186 above that the ECB’s decision to withdraw authorisation was not taken because of a deficiency in liquidity or lack of liquidity on the part of the applicant.

195    Secondly, it has been pointed out in paragraph 156 above that the contested decision set out clearly and unequivocally the matters of fact and of law on which the ECB relied in deciding to withdraw the authorisation.

196    Thirdly, as has been pointed out in paragraphs 177 to 180 above, the ECB adopted the contested decision independently after carrying out its own assessments and drawing its own conclusions. Accordingly, the ECB did not confine itself to reproducing in the contested decision the findings made by the FCMC in its proposal of 5 February 2016 for a withdrawal decision.

197    It follows that the applicant cannot, in the present case, legitimately criticise the ECB for failing in its duty of care on the ground that it did not use the expertise and experience available to it.

198    In any event, the applicant does not explain with sufficient precision and clarity how, without the alleged infringements, the outcome of the procedure might have been different. Consequently, if it does not challenge in detail any infringements committed by the ECB in the adoption of the contested decision, such a criticism formulated in general terms cannot reasonably succeed (see, to that effect, judgment of 14 May 2019, Marinvest and Porting v Commission, T‑728/17, not published, EU:T:2019:325, paragraph 57 and the case-law cited).

199    In the light of the foregoing, the present complaint must be rejected.

(d)    The fourth complaint, alleging failure to take the Latvian context into consideration when assessing the facts

200    The applicant submits, in essence, that the ECB, in its assessment of the facts of the present case, did not take into account the public comments of the Organisation for Economic Cooperation and Development (OECD) or those of the new head of the FCMC. According to the applicant, in reality, the FCMC used the applicant to implement its new anti-money laundering policy and to address the OECD’s negative comments that it did not, in the past, correctly ensure compliance with the anti-money laundering rules. In its examination, the ECB also failed to take into account that the facts alleged are, according to the OECD, true for most Latvian banks.

201    The ECB and the Commission contest the applicant’s arguments.

202    In that regard, it is sufficient to note that the applicant merely asserts, without adducing the slightest direct and specific evidence in that regard, that, first, by proposing withdrawal of authorisation, the FCMC pursued an aim other than the performance of its task of prudential supervision of credit institutions and, secondly, the facts in respect of which it is criticised are true of most Latvian banking institutions.

203    It follows that such an argument is not, in itself, sufficient to establish the existence of a breach by the ECB of its duty of care.

204    In the light of the foregoing, the present complaint must be rejected.

(e)    The fifth complaint, alleging the ECB’s counter-productive responses to inaccuracies and manipulation on the part of the FCMC

205    The applicant submits, in essence, that the ECB failed to acknowledge and discuss what the FCMC’s decision dated 22 January 2016 actually said, namely that withdrawal of authorisation was not appropriate. By failing to acknowledge the content of that decision, the ECB did not address the crucial issue of what changed between that decision and the FCMC’s proposed withdrawal dated 5 February 2016. In particular, according to the documents in the ECB’s file, the applicant’s financial situation was much better on 5 February 2016. The only significant change between those two dates was the politically driven change in the leadership of the FCMC. It is unrealistic to assume that there is no direct connection between that change of leadership and that proposal.

206    The ECB and the Commission contest the applicant’s arguments.

207    In that regard, it is sufficient to note that, in the present case, the applicant merely repeats the arguments put forward in support of the fourth complaint of the present plea. Consequently, for the same reasons as those set out in the examination of that complaint, those arguments must be rejected.

208    In addition, while it is true that, in its decision of 22 January 2016, the FCMC took the view that withdrawal of authorisation was not proportionate and that it was necessary to give the bank’s shareholders the opportunity to remedy the shortcomings identified, it nevertheless stated in that decision that the facts established were sufficient to take a decision withdrawing the bank’s authorisation and that, if the shareholders of the bank did not take measures to remedy them or if those measures were not sufficiently effective, it would require the ECB to withdraw authorisation.

209    In the light of the foregoing, the present complaint must be rejected.

(f)    The sixth complaint, alleging the ECB’s refusal to accept the full extent of manipulation on the part of the FCMC

210    The applicant submits, in essence, that the ECB refuses to accept the full extent of manipulation on the part of the FCMC. The ECB describes only as ‘incomplete’ the translation of the FCMC’s decision of 22 January 2016 which was communicated, whereas the latter omits entire sections and paragraphs. The applicant also maintains that the ECB fails to acknowledge the applicant’s actual position, namely that all the alleged infringements were considered to be remediable at that date.

211    The ECB and the Commission contest the applicant’s arguments.

212    In that regard, it is sufficient to note that in the present case the applicant merely repeats the arguments put forward in support of the eighth complaint of the first plea and the second, fourth and fifth complaints of the present plea.

213    Consequently, for the same reasons as those set out in the examination of those complaints, the present complaint must be rejected and, consequently, the plea must be rejected in its entirety.

4.      The third plea, alleging infringement of Article 14(5) of Regulation No 1024/2013 and of the principle of proportionality

214    The applicant submits, in essence, that withdrawal of a banking authorisation is a measure of last resort, where it is not possible otherwise to remedy regulatory deficiencies. It points out in that regard that it is important to note that, in its decision of 22 January 2016, the FCMC had taken the view that it was possible to remedy all the deficiencies and that therefore withdrawal of authorisation was not necessary. Accordingly, first, the applicant submits, in essence, that the FCMC in its proposal to withdraw authorisation of 5 February 2016 does not allege any significant change in the applicant’s position since the date of adoption of the decision of 22 January 2016, so that there is nothing to explain the FCMC’s change in opinion. Moreover, the failures to comply with the anti-money laundering rules are much less alarming than those found in other banks. The breaches also found of the large exposure rules were only marginal. Secondly, in order to justify its change of opinion, the FCMC was led to resort to deliberate manipulation and inaccuracies, in particular by concealing that decision from the ECB, suggesting in bad faith that the applicant’s illiquidity was imminent and sending it a misleading translation of its decision. Thirdly, its change of opinion was politically driven and motivated by the FCMC’s wish to use the applicant, because of its sound financial health, to illustrate its new anti-money laundering policy. Fourthly, the ECB failed to take sufficient account of the efforts it had made to comply with the FCMC’s requirements, in particular the anti-money laundering requirements and those in relation to capital.

215    The ECB and the Commission contest the applicant’s arguments.

216    In the contested decision, the ECB found that since the FCMC’s decision of 22 January 2016, the applicant had not taken any immediate, effective and reliable actions to eliminate the deficiencies identified and had not provided any material evidence that it would have taken decisions likely to improve its activities effectively and promptly. In particular, it noted that the applicant still was not in a position to implement an adequate and real strategy and to reform its business model. It also noted that the applicant did not comply with the regulatory capital requirements and anti-money laundering requirements. It further noted that the applicant’s shareholders of qualifying holdings had not been able to increase the applicant’s capital, as had been repeatedly requested by the FCMC, in order to comply with the applicable regulatory requirements.

217    In that context, the ECB took the view that withdrawal of the applicant’s authorisation was an adequate and proportionate measure, having regard to the interests of the depositors and the financial market, in particular were the applicant to continue to pursue its activities with serious and long-term deficiencies in anti-money laundering issues. A significant reputation risk for the whole Latvian financial market was also foreseen. Moreover, in the light of the applicant’s overall financial situation, which had deteriorated in such a way as to be regarded as irreversible, the adoption of a less severe measure was considered not to be feasible.

218    In that regard, in the first place, it has been noted in paragraph 186 above that withdrawal of the applicant’s authorisation was not based on deficiencies in the applicant’s liquidity or a lack of liquidity, with the result that the arguments put forward in that regard are ineffective. It was also noted in the same paragraph that it was not apparent from the FCMC’s proposed withdrawal of 5 February 2016 that the latter had considered the applicant’s illiquidity to be imminent and inevitable.

219    In the second place, it was noted in paragraph 88 above that withdrawal of authorisation was not a measure which could be adopted only as a last resort, when all other available measures had failed. Recourse to that measure is determined by the nature of the breaches found of the applicable regulatory requirements.

220    Furthermore, it is apparent from the contested decision that other less intrusive measures had already been adopted by the FCMC, such as warnings, fines, operating restrictions and a request to replace a member of the applicant’s board of directors. However, none of those measures had enabled the infringements found to be remedied or ensured that the applicant’s activities complied with the applicable regulatory requirements.

221    In the third place, according to the case-law, in accordance with the principle of proportionality, which is one of the general principles of EU law, the acts adopted by EU institutions must be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not exceed the limits of what is necessary in order to achieve those objectives; where there is a choice between several appropriate measures, recourse must be had to the least onerous; and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 67 and the case-law cited).

222    Furthermore, the assessment of the proportionality of a measure must be reconciled with compliance with the discretion that may have been conferred on the EU institutions at the time it was adopted (see judgment of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 53 and the case-law cited).

223    In that regard, first, as noted by the ECB, the objective pursued by withdrawal of the applicant’s authorisation was to put an end to the applicant’s serious, recurrent and persistent breaches of the regulatory requirements applicable and the resulting risks for depositors and for the European and Latvian banking systems.

224    Consequently, the applicant’s argument that its authorisation was withdrawn for political reasons is unfounded. Moreover, it was found in paragraph 202 above that the applicant had not put forward any precise and consistent evidence capable of demonstrating that the contested decision had been adopted for a purpose other than that referred to in paragraph 223 above.

225    Next, it must be held, as it was by the ECB, that, in view of the serious, recurrent and persistent breaches by the applicant of the applicable regulatory requirements, as described in the contested decision and not disputed by the applicant, in terms of capital, large exposure, anti-money laundering, business model and strategy, withdrawal of authorisation, inasmuch as it prevented the applicant from continuing its activities, was appropriate for the purposes of contributing to the objectives referred to in paragraph 223 above.

226    Lastly, it was pointed out in paragraph 220 above that the less intrusive measures adopted by the FCMC in the past, such as warnings, fines, operating restrictions and the request to replace a member of the applicant’s board of directors, had not made it possible to remedy those infringements and to ensure that the applicant’s activities complied with the applicable regulatory requirements.

227    Consequently, the applicant cannot validly maintain that less intrusive measures would have made it possible to attain the objectives pursued by withdrawal of authorisation. Moreover, the applicant itself acknowledges in the application that the preparation and implementation of a new economic model, in order to remedy those irregularities, could be carried out only in the context of a long-term plan and not in the short term. Moreover, the applicant has not provided any evidence that any measures were taken to remedy the infringements found following the FCMC’s decision dated 22 January 2016, with the result that it cannot in any event claim that the ECB did not take sufficient account of the efforts which it allegedly made to comply with the FCMC’s requirements.

228    In those circumstances, the ECB did not commit a manifest error of assessment in considering that less intrusive measures were not appropriate for achieving the objectives pursued immediately and effectively.

229    In any event, the applicant cannot effectively claim that the FCMC in its decision of 22 January 2016 had taken the view that it was possible to remedy all the infringements found and that withdrawal of its authorisation was not necessary, since, as observed in paragraph 168 above, the ECB is not required to follow the draft withdrawal decision submitted by the national competent authority concerned and any decision to withdraw authorisation is taken by it independently, on the basis of its own assessment. The same is true, for the same reason, of the applicant’s argument that, in its proposal to withdraw authorisation dated 5 February 2016, the FCMC did not allege any significant change in the applicant’s position since the FCMC’s decision dated 22 January 2016, with the result that there is nothing to explain the change in opinion of the FCMC.

230    Nor can the applicant legitimately maintain that withdrawal of authorisation was disproportionate by merely asserting, without adducing the slightest evidence, that the alleged infringements, and in particular those of the anti-money laundering rules, are much less significant than in other banks against which measures were not taken.

231    It follows from all the foregoing considerations that, by withdrawing the applicant’s authorisation, the ECB did not manifestly exceed the limits of what was necessary in order to attain the objectives pursued, within the meaning of the case-law referred to in paragraph 221 above. The ECB did not therefore commit a manifest error of assessment in considering that withdrawal of authorisation was an appropriate and proportionate measure.

232    In the light of the foregoing, the present plea must be rejected.

5.      The fourth plea, alleging breach of the principle of equal treatment

233    The applicant submits, in essence, that the ECB infringed the principle of equal treatment inasmuch as it authorised the FCMC to single out the applicant to demonstrate its new ‘regulatory’ approach, whereas most of the deficiencies identified were identical to those of other Latvian banks.

234    The ECB and the Commission contest the applicant’s arguments.

235    In that regard, it should be recalled as a preliminary point that it is settled case-law that the principle of equal treatment is a general principle of EU law, now enshrined in Articles 20 and 21 of the Charter, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraph 55 and the case-law cited).

236    In the present case, it should be noted that the applicant merely asserts, without adducing the slightest evidence, that, first, most of the irregularities found also concerned other Latvian banking institutions, against which measures were not, however, taken, and, secondly, that the national competent authorities had chosen it solely in order to justify their new anti-money laundering policy.

237    Such a line of argument is not, in itself, sufficient to establish the existence of an infringement of the principle of equal treatment. Moreover, the applicant has not put forward any evidence to show that, in respect of the same irregularities, other Latvian banking institutions were treated differently.

238    In the present case, it is appropriate to recall that the principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his or her claim, on an unlawful act committed in favour of a third party (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 84 and the case-law cited).

239    In the light of the foregoing, the present plea must be rejected.

6.      The fifth plea, alleging infringement of Article 19 and recital 75 of Regulation No 1024/2013

240    The applicant submits, in essence, that Article 19 and recital 75 of Regulation No 1024/2013 require the ECB to carry out its tasks independently of any undue political influence. However, the ECB failed to comply with that obligation and misused its powers by supporting a decision based on the intention of the Latvian Government to create the appearance of progress in the area of anti-money laundering in order to become a member of the OECD.

241    The ECB and the Commission contest the applicant’s arguments.

242    It should be noted as a preliminary point that, according to recital 75 of Regulation No 1024/2013, ‘in order to carry out its supervisory tasks effectively, the ECB should exercise the supervisory tasks conferred on it in full independence, in particular free from undue political influence and from industry interference which would affect its operational independence’.

243    Article 19(1) of Regulation No 1024/2013 provides that ‘when carrying out the tasks conferred on it by this Regulation, the ECB and the national competent authorities acting within the [Single Supervisory Mechanism] shall act independently The members of the Supervisory Board and the steering committee shall act independently and objectively in the interest of the Union as a whole and shall neither seek nor take instructions from the institutions or bodies of the Union, from any government of a Member State or from any other public or private body’.

244    Furthermore, it is apparent from settled case-law that the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose. Furthermore, where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, provided that the decision does not cease to pursue the main aim (see judgment of 13 December 2017, Crédit mutuel Arkéa v ECB, T‑52/16, EU:T:2017:902, paragraph 210 and the case-law cited).

245    It should be noted in the present case that the arguments put forward by the applicant in support of the present plea relate, in reality, to the FCMC, and not to the ECB directly. By its line of argument, the applicant claims, in essence, that the objectives pursued by the FCMC by means of its proposed withdrawal dated 5 February 2016 were not legitimate objectives of banking regulation but were political in nature. By supporting that proposal from the FCMC, the ECB is alleged to have failed to fulfil its obligation to carry out its tasks independently of any undue political influence and to have misused its powers.

246    In that regard, it should be noted that it was found in paragraph 167 above that the ECB was not required to follow the draft withdrawal decision submitted by the national competent authority concerned and that any decision to withdraw authorisation was taken by it independently and on the basis of its own assessment. It has also been pointed out in paragraphs 177 to 180 above that the ECB had made its own assessments, drawn its own conclusions and did not confine itself to reproducing in the contested decision the findings made by the FCMC in its proposed withdrawal dated 5 February 2016.

247    Accordingly, the alleged political motivation of the FCMC, even if established, cannot, in any event, be attributable to the ECB and establish an infringement by the ECB of recital 75 and Article 19(1) of Regulation No 1024/2013 and, thus, render the contested decision unlawful.

248    Furthermore, it should be noted that the applicant does not put forward any objective, relevant and consistent factors, within the meaning of the case-law referred to in paragraph 244 above, capable of demonstrating that the contested decision was adopted by the ECB for a purpose other than that for which its powers were conferred on it, namely to contribute to the safety and soundness of the credit institutions and to the stability of the financial system within the European Union. Furthermore, it has been pointed out in paragraph 223 above that the contested decision was adopted by the ECB in line with that purpose.

249    In the light of the foregoing, the present plea must be rejected.

7.      The sixth plea, alleging infringement of the principles of legitimate expectations and legal certainty

250    The applicant submits, in essence, that the ECB infringed the principles of legitimate expectations and legal certainty by acting in a manner contrary to the statements of the FCMC in the latter’s decision dated 22 January 2016 and to the FCMC’s analogous public statements according to which withdrawal of the applicant’s authorisation was not justified. Those principles were also infringed when, following a change in its leadership, the FCMC changed its approach and proposed to the ECB, on 5 February 2016, to withdraw the applicant’s authorisation. Those principles were furthermore infringed when the FCMC falsely informed the ECB that the applicant’s illiquidity was imminent and no other measure was possible to prevent a withdrawal of authorisation. It claims that it is immaterial in that context that, as a technical matter, that decision was adopted by the FCMC and that the contested decision was adopted by the ECB. The Single Supervisory Mechanism is a uniform and single mechanism for which the ECB is responsible.

251    The ECB and the Commission contest the applicant’s arguments.

252    It must be recalled as a preliminary point that the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where an EU authority has caused him or her to have justified expectations. Nevertheless, the right to rely on that principle requires that three conditions be satisfied cumulatively. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the EU authorities. Secondly, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Thirdly, the assurances given must be consistent with the applicable rules (see judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 75 and the case-law cited).

253    Furthermore, the principle of legal certainty requires that every measure of the institutions having legal effects must be clear and precise and must be brought to the notice of the person concerned in such a way that he or she can ascertain exactly the time at which the measure comes into being and starts to have legal effects (see judgment of 22 January 1997, Opel Austria v Council, T‑115/94, EU:T:1997:3, paragraph 124 and the case-law cited).

254    It should be noted at the outset that the applicant’s line of argument relates, in reality, not to the ECB directly but to the national competent authority concerned, namely the FCMC, and to the legitimate expectations which its decision of 22 January 2016 allegedly created with regard to the applicant. As is apparent from the case-law cited in paragraph 252 above, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where an EU authority, and not a national authority, has caused him or her to have justified expectations.

255    Furthermore, while it is true that, in accordance with Article 6 of Regulation No 1024/2013, the ECB is responsible for the effective and consistent functioning of the Single Supervisory Mechanism and that, to that end, it is to cooperate in good faith and to exchange information with the national competent authorities, it was nevertheless noted in paragraph 168 above that any decision to withdraw authorisation was taken by the ECB independently, on the basis of its own assessment of the relevant circumstances of the case, as stated by the FCMC in its decision.

256    Accordingly, the expectations allegedly created by the FCMC’s decision of 22 January 2016 with regard to the applicant do not arise from an authorised and reliable source, within the meaning of the case-law referred to in paragraph 252 above, with the result that the applicant cannot reasonably rely, in the present case, on the principle of the protection of legitimate expectations.

257    Moreover, even if the expectations referred to originate from an authorised and reliable source, no precise, unconditional and consistent assurances, within the meaning of the case-law referred to in paragraph 252 above, can be inferred from the FCMC’s decision of 22 January 2016, such as to give rise to a legitimate expectation on the part of the applicant that its authorisation would not be withdrawn. It is true that the FCMC took the view in that decision that withdrawal of authorisation was not proportionate and that it was necessary to give the applicant’s shareholders the opportunity to remedy the shortcomings identified and to restore its stable operation. Nevertheless, in the same paragraph, it stated (i) that those facts made it possible and sufficient for a decision to withdraw authorisation to be taken and (ii) that, if the applicant’s shareholders did not take measures to remedy those shortcomings or if those measures were not sufficiently effective to remedy them, it would require the ECB to withdraw authorisation.

258    Furthermore, according to the case-law, while the possibility of relying on the protection of legitimate expectations, as a fundamental principle of EU law, is available to any economic operator whom an institution has caused to have justified expectations, the fact remains that, where a prudent and circumspect economic operator is able to foresee the adoption of an EU measure likely to affect his or her interests, he or she cannot rely on that principle if the measure is adopted (see judgment of 7 October 2015, Accorinti and Others v ECB, T‑79/13, EU:T:2015:756, paragraph 76 and the case-law cited).

259    In the email of 8 February 2016, the applicant’s representatives remind the ECB that its authorisation, according to the terms of the decision of the FCMC of 22 January 2016, will only be withdrawn if it fails to take measures to remedy the infringements found or if the measures taken are insufficient. It is thus apparent from that email that the applicant was in a position to foresee the adoption of an EU measure likely to affect its interests, within the meaning of paragraph 76 of the judgment of 7 October 2015, Accorinti and Others v ECB (T‑79/13, EU:T:2015:756).

260    In any event, as noted in paragraph 52 above, the ECB is exclusively competent, in respect of the tasks conferred upon it, to withdraw authorisations of credit institutions. Consequently, the applicant cannot claim that the FCMC’s decision of 22 January 2016 had created a legitimate expectation on its part, since the ECB is not obliged to follow the FCMC’s proposals.

261    In the light of the foregoing, the present plea must be rejected.

8.      The seventh plea, alleging breach of procedural issues

262    The present plea comprises 10 complaints.

263    The first complaint relates to lack of involvement on the part of the ECB prior to the procedure for withdrawing authorisation. The second complaint relates to inappropriateness of the period for being heard. The third complaint relates to the submission of incorrect factual information. The fourth complaint relates to non-disclosure of the identity of the persons responsible for the inaccuracies and manipulation found. The fifth complaint relates to lack of coordination between the FCMC and the ECB. The sixth complaint relates to infringement of Article 83(1) of the SSM Framework Regulation. The seventh complaint relates to infringement of the right to be heard concerning new facts. The eighth complaint relates to refusal to provide access to the finding that the applicant was failing or likely to fail issued by the FCMC on 22 January 2016. The ninth complaint relates to the reasoning of the contested decision. The tenth complaint relates to notification of that decision.

(a)    The first complaint, relating to lack of involvement on the part of the ECB prior to the procedure for withdrawing authorisation

264    The applicant submits, as a preliminary point, that the ECB, in its capacity as the supervisor of the national competent authorities, is liable for the infringements committed by those authorities. It submits, in essence, that, in order to ensure an impartial and objective decision-making process fully respecting the rights of the defence, it is necessary for the ECB to become involved considerably in advance of any potential decision withdrawing banking authorisation and to make contact with the bank concerned in order to enable it to submit information and to make comments. In the present case, however, the ECB’s file clearly shows that it became involved only in December 2015 and that its first contact with the applicant consisted in the notification of a draft decision in English to withdraw its authorisation, in respect of which the applicant had been granted only three days to make comments.

265    The ECB and the Commission contest the applicant’s arguments.

266    In that regard, it is sufficient to note that the applicant is a less significant credit institution within the meaning of Article 6(4) of Regulation No 1024/2013. Under paragraph 6 of that article, the supervision of those establishments falls directly within the competence of the national authorities concerned. In addition, in accordance with Article 80(1) and Article 81(1) of the SSM Framework Regulation, as regards withdrawal of authorisations from those institutions, the ECB is to act on a proposal from a national competent authority. Consequently, in the light of those considerations, the ECB cannot legitimately be criticised for failing to intervene prior to the procedure for withdrawing authorisation and on the ground that it infringed the applicant’s rights of defence.

267    Furthermore, in so far as the applicant criticises the ECB for not deciding to exercise directly itself all the relevant powers, pursuant to Article 6(5)(b) of Regulation No 1024/2013, suffice it to note that, while that provision does in fact give the ECB the opportunity to exercise directly all relevant powers in respect of a less significant credit institution, it does not however impose any obligation on it and limits its intervention to the need to avoid inconsistent application of high supervisory standards by the national competent authorities.

268    Consequently, since the applicant does not put forward any evidence to support the conclusion that the ECB’s failure to intervene led to an inconsistent application of high supervisory standards by the national competent authorities, it cannot legitimately criticise it for failing to intervene prior to the procedure for withdrawal of authorisation or allege that it infringed its rights of defence.

269    In the light of the foregoing, the present complaint must be rejected.

(b)    The second complaint, relating to inappropriateness of the period for being heard

270    The applicant submits, in essence, that the period of three working days granted to credit institutions to which a decision to withdraw authorisation is addressed in order to be heard is inappropriate, having regard to the severity of the sanction, and is inconsistent with Article 41(2)(a) of the Charter. The short extension granted does not alter that conclusion.

271    The ECB and the Commission contest the applicant’s arguments.

272    In that regard, it has been recalled in paragraphs 123 to 126 above that the rights of the defence, which include the right to be heard, are among the fundamental rights which form an integral part of the EU legal order and which are enshrined in the Charter. That principle requires that the addressees of decisions which significantly affect their interests should be afforded the opportunity effectively to make known their views on the facts alleged against them on which the decision at issue is based.

273    However, according to settled case-law, fundamental rights, such as observance of the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, in the light of the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (judgments of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 63; of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 33; and of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 84).

274    In the present case, Article 31(3) of the SSM Framework Regulation provides that:

‘The party shall, in principle, be given the opportunity to provide its comments in writing within a time limit of two weeks following receipt of a statement setting out the facts, objections and legal grounds on which the ECB intends to base the ECB supervisory decision.

On application of the party, the ECB may extend the time limit as appropriate.

In particular circumstances, the ECB may shorten the time limit to three working days. The time limit shall also be shortened to three working days in the situations covered by Articles 14 and 15 of [Regulation No 1024/2013].’

275    Article 14(5) of Regulation No 1024/2013 states that the ECB may, subject to paragraph 6 of that article, withdraw the authorisation in the cases set out in relevant EU law on its own initiative, following consultations with the national competent authority of the participating Member State where the credit institution is established, or on a proposal from such authority. Where the national competent authority which has proposed the authorisation in accordance with paragraph 1 of that article considers that the authorisation must be withdrawn in accordance with the relevant national law, it submits a proposal to the ECB to that end. In that case, the ECB is to take a decision on the proposed withdrawal, taking full account of the justification for withdrawal put forward by that authority.

276    It thus follows from a combined reading of the third subparagraph of Article 31(3) of the SSM Framework Regulation and Article 14(5) of Regulation No 1024/2013, to which the former provision refers, that the period granted to the credit institution for submitting its written observations on a draft withdrawal decision is three working days.

277    As regards the first decision, it is apparent from the contested decision that the applicant had an initial period of three working days within which to submit its observations on the initial draft decision, then a second period of three working days within which to submit its comments following the amendment of that draft decision. In addition, the applicant had, at its request, an extension of two working days in respect of each of those time limits and freely supplemented its observations on the amended draft decision with additional information, which, despite its late submission, was nevertheless examined by the ECB. It follows that the applicant had, at least, in respect of each of the draft decisions, a period of five working days within which to submit its comments.

278    In addition, it has been held in paragraphs 136 to 139 above that the contested decision, the facts and legal grounds on which that decision was based being identical to those of the first decision, was adopted at the end of a review procedure during which the applicant was freely able to submit its observations on the latter decision, had access to the file and took part in a hearing with the Board of Review.

279    Moreover, it has been noted in paragraph 223 above that the objective pursued by withdrawal of the applicant’s authorisation was to put an end to its serious, recurrent and persistent breaches of the regulatory requirements applicable and the resulting risks for depositors and for the European and Latvian banking systems.

280    It must also be held, as observed by the ECB, that the EU legislature carried out an assessment as to the reasonableness of the period laid down by those provisions by weighing the relevant opposing interests: on the one hand, the private interests of the credit institutions in having as much time as possible to make their observations and, on the other, the public interest in having legality restored as quickly as possible (judgment of 6 October 2021, Ukrselhosprom PCF and Versobank v ECB, T‑351/18 and T‑584/18, appeal pending, EU:T:2021:669, paragraph 374).

281    In those circumstances, having regard to the objective pursued by withdrawal of the applicant’s authorisation, in accordance with the case-law referred to in paragraph 273 above, the applicant cannot reasonably claim that it did not have sufficient time to submit its observations and effectively make known its views on the draft withdrawal decisions which culminated in the contested decision.

282    In any event, as was pointed out in paragraph 130 above, an infringement of the right to be heard is, according to the case-law, irrelevant to the validity of the contested decision where it is not established that the outcome of the procedure might have been different without the alleged irregularity. The applicant does not explain how that procedure could have led to a different outcome if it had been granted a longer period in which to submit its observations. Consequently, such a criticism, formulated in general terms, cannot reasonably succeed.

283    In the light of the foregoing, the present complaint must be rejected.

(c)    The third complaint, relating to submission of incorrect factual information

284    The applicant submits, in essence, that its rights of defence and its right to be heard were infringed by the submission of incorrect factual information, by the manipulation of documents and by the non-disclosure of additional documents within a reasonable period. In the light of those factors, the ECB should have granted it an additional period within which to be heard.

285    The ECB and the Commission contest the applicant’s arguments.

286    In that regard, it has been concluded in paragraph 281 above that the applicant cannot reasonably claim that it did not have sufficient time to submit its observations and effectively make known its views on the draft withdrawal decisions which culminated in the contested decision. It was also found in paragraph 189 above that the allegations of inaccuracies and manipulation were unfounded.

287    In those circumstances, the applicant cannot legitimately rely on an infringement of its rights of defence and of its right to be heard.

288    In the light of the foregoing, the present complaint must be rejected.

(d)    The fourth complaint, relating to non-disclosure of the identity of the persons responsible for the inaccuracies and manipulation

289    The applicant submits, in essence, that the ECB infringed its right to an independent, objective and impartial decision by failing to disclose the identity of the persons responsible for the manipulation and the inaccuracies found and to ensure that those persons were removed from the decision-making process.

290    The ECB and the Commission contest the applicant’s arguments.

291    In that regard, it is sufficient to note that it is not apparent from the examination of the second plea that the ECB failed to fulfil its obligation to examine and assess carefully and impartially all the relevant aspects of the case. In particular, it was noted in paragraph 189 above that the allegations of inaccuracies and manipulation were unfounded.

292    In those circumstances, and since it is based on the incorrect premiss that the FCMC file contained inaccuracies and had been manipulated, the present complaint must be rejected.

(e)    The fifth complaint, relating to lack of coordination between the FCMC and the ECB

293    The applicant submits, in essence, that the ECB infringed its right to a fair administrative procedure and its rights of defence by failing to ensure appropriate coordination between, on the one hand, the English language procedure before the ECB and, on the other hand, the discussions and correspondence in Latvian with the FCMC. In addition, the ECB infringed the provisions of Regulation No 1024/2013 by not granting the applicant sufficient time to be heard. The applicant also claims that the ECB infringed the principles of legitimate expectations and legal certainty by expecting it to conduct its regulatory discussions in English through its lawyers in Frankfurt am Main (Germany), even though it had never needed to do so in the past and therefore had no experience of doing so. It considers that, in the event that a national authority proposes to the ECB that authorisation be withdrawn, all correspondence and all regulatory dialogues must necessarily be carried out before the ECB or at least also involve the ECB and be established in the language of the proceedings before the ECB.

294    The ECB and the Commission contest the applicant’s arguments.

295    In that regard, first, Article 24 of the SSM Framework Regulation provides that:

‘1.      Any document which a supervised entity or any other legal or natural person individually subject to ECB supervisory procedures sends to the ECB may be drafted in any one of the official languages of the Union, chosen by the supervised entity or person.

2.      The ECB, supervised entities and any other legal or natural person individually subject to ECB supervisory procedures may agree to exclusively use one Union official language in their written communication, including with regard to ECB supervisory decisions.

The revocation of such agreement on the use of one language shall only affect the aspects of the ECB supervisory procedure which have not yet been carried out.

Where participants in an oral hearing request to be heard in a Union official language other than the language of the ECB supervisory procedure, sufficient advance notice of this requirement shall be given to the ECB so that it can make the necessary arrangements.’

296    It follows that, in so far as it is not apparent from the file that the applicant made any express request to the ECB that their written communications be in Latvian, although it had the opportunity to do so, the ECB cannot subsequently legitimately be criticised for not having conducted them in that language.

297    Secondly, it has been concluded in paragraph 281 above that the applicant cannot reasonably claim that it did not have sufficient time to submit its observations and effectively make known its views on the draft withdrawal decisions which culminated in the contested decision.

298    In those circumstances, the applicant cannot legitimately criticise the ECB on the ground that it infringed its right to a fair administrative procedure and its rights of defence.

299    Moreover, the applicant does not explain with sufficient clarity how exactly the outcome of the procedure might have been different without the alleged irregularities. In accordance with the case-law referred to in paragraph 130 above, an infringement of the right to be heard has no effect on the validity of the contested decision where it is not established that, without that alleged irregularity, the outcome of the procedure might have been different.

300    Thirdly, it has been concluded in paragraph 266 above that the ECB cannot legitimately be alleged to have infringed the applicant’s rights of defence on the ground that it did not intervene prior to the withdrawal procedure.

301    In the light of the foregoing, the present complaint must be rejected.

(f)    The sixth complaint, relating to infringement of Article 83(1) of the SSM Framework Regulation

302    The applicant submits, in essence, that the ECB infringed Article 83(1) of the SSM Framework Regulation by failing to reject the FCMC’s initial draft decision and by wrongly treating its amended draft decision as a mere revision of the former. It argues that, evidently, the ECB acted in that way in order to avoid taking a rejection decision that would have led it to state clearly that the allegations of the FCMC were inaccurate.

303    The ECB and the Commission contest the applicant’s arguments.

304    In that regard, as it was concluded in paragraph 168 above, since the ECB is not required to follow the draft withdrawal decision submitted by the national competent authority concerned and since any decision to withdraw authorisation is taken by it independently, on the basis of its own assessment, the applicant’s claim that the ECB infringed Article 83(1) of the SSM Framework Regulation by not rejecting the initial draft decision of the FCMC and wrongly treating its amended draft decision as a mere revision of the former cannot, in any event, render the contested decision unlawful.

305    In the light of the foregoing, the present complaint must be rejected.

(g)    The seventh complaint, relating to infringement of the right to be heard concerning new facts

306    The applicant submits, in essence, that the ECB failed to take account of the fact that the letters from the FCMC received on 1 and 2 March 2016 constituted new facts requiring a right to be heard. In so far as the ECB based the contested decision on those facts, it consequently infringed Article 33(3) of the SSM Framework Regulation.

307    The ECB and the Commission contest the applicant’s arguments.

308    In that regard, it is sufficient to note, as does the ECB, that the letters of 1 and 2 March 2016 from the FCMC, which reply to the applicant’s letters concerning a property transaction which it intended to carry out and the measures which it proposed to strengthen its capital, do not contain any new fact, since those letters merely substantiate the infringements already found of the applicable anti-money laundering regulatory requirements on the part of the applicant and in respect of which it was heard.

309    In those circumstances, the applicant cannot reasonably complain that the ECB infringed Article 33(3) of the SSM Framework Regulation and its right to be heard.

310    In the light of the foregoing, the present complaint must be rejected.

(h)    The eighth complaint, relating to refusal to provide access to the finding that the applicant was failing or likely to fail issued by the FCMC on 22 January 2016

311    The applicant submits, in essence, that the ECB infringed Article 41(2)(b) and Article 42 of the Charter and Article 32 of the SSM Framework Regulation by not communicating to it the decision of the FCMC of 22 January 2016 finding that it was failing or likely to fail. Moreover, it argues, contrary to what the ECB claimed, it is implausible that no additional document, with the exception of the two publications in the Latvijas Vēstnesis, was added after the applicant’s second inspection of the file.

312    The ECB and the Commission contest the applicant’s arguments.

313    In that regard, it must be borne in mind that the right of access to the file means that the institution concerned must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, internal documents or other confidential information are involved (see, to that effect and by analogy, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68 and the case-law cited).

314    In addition, Article 32(1) and (5) of the SSM Framework Regulation provides that the right of access to the file does not extend to confidential information, which may include internal documents of the ECB and national competent authorities and correspondence between the ECB and a national competent authority or between those authorities.

315    In the present case, it is sufficient to note, as it was by the ECB, that withdrawal of the applicant’s authorisation was not based, in the contested decision, on the finding that it was failing or likely to fail, with the result that the lack of access to that decision by the FCMC cannot establish the existence of an infringement of the applicant’s right of access to the file and, consequently, the unlawfulness of the contested decision.

316    In addition, as found in paragraph 146 above, the applicant has not adduced the slightest evidence in support of its statement that it is inconceivable that, with the exception of the two publications in the Latvijas Vēstnesis, no other document, confidential or not, was obtained, produced or assembled by the ECB, in addition to those in the list which was delivered to it on 22 April 2016.

317    Moreover, as noted in paragraph 130 above, an infringement of the right to be heard, according to the case-law, has no effect on the validity of the contested decision where it is not established that the outcome of the procedure might have been different without the alleged irregularity. The applicant does not explain how the outcome of the procedure might have been different if it could have had access to that decision. Consequently, such a criticism, formulated in general terms, cannot reasonably succeed.

318    In those circumstances, as concluded in paragraph 147 above, such an argument is not, in itself, sufficient to establish the existence of an infringement of the applicant’s right of access to the file.

319    In the light of the foregoing, the present complaint must be rejected.

(i)    The ninth complaint, relating to the reasoning of the contested decision

320    First, the applicant submits, in essence, that the statement of reasons for the contested decision is very evasive and does not clearly state the main grounds which allegedly justify withdrawal of its authorisation and the weighting applied to each of those grounds. Secondly, the wording of a large part of that decision is such as to give the impression that it was the FCMC and not the ECB which adopted it and assessed the facts. Thirdly, the ECB failed to specify the legal basis for that decision. In particular, as regards the anti-money laundering issue, no clear reference is made to Article 67(o) of Directive 2013/36.

321    The ECB and the Commission contest the applicant’s arguments.

322    It should be noted as a preliminary point that, according to the second subparagraph of Article 22(2) and Article 24(9) of Regulation No 1024/2013, decisions of the ECB must state the reasons on which they are based.

323    In accordance with Article 33(1) and (2) of the SSM Framework Regulation, an ECB supervisory decision must be accompanied by a statement of reasons for that decision and the statement of reasons is to contain the material facts and legal reasons on which the ECB’s supervisory decision is based.

324    It should also be noted that Article 33(1) and (2) of the SSM Framework Regulation merely reiterates the obligation to state reasons by which EU institutions and bodies are bound under the second paragraph of Article 296 TFEU (judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 121).

325    The obligation to state reasons laid down in Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 122 and the case-law cited).

326    In that vein, the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 123 and the case-law cited).

327    Furthermore, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 124 and the case-law cited).

328    In the present case, first, it was observed in paragraph 156 above that the contested decision set out clearly and unequivocally the matters of fact and law on which the ECB relied in deciding to withdraw the applicant’s authorisation. In particular, after recalling in that decision, in point 1, the legal framework applicable, in point 2, the procedure, in point 3, the facts giving rise to the case and, in point 4.1, the irregularities found on the part of that applicant which led the FCMC to propose withdrawal of its authorisation, the ECB found, in point 4.2 (a) to (g), that the applicant did not meet the global capital requirements or the Pillar 2 requirements and that it did not, moreover, meet the large exposure limits and several other requirements provided for by the Law on Credit Institutions, such as the requirements relating to the functioning of the internal control system, the anti-money laundering requirements, the requirements relating to a prudent strategy and the requirements relating to the reputation of shareholders of qualifying holdings. Next, it found in point 4.2 (h) of that decision that the applicant had not taken any immediate, effective and reliable actions to eliminate those deficiencies and had not provided any significant evidence that decisions likely to improve its operations effectively and promptly would have been taken. Finally, it considered that in those circumstances withdrawal of authorisation was an adequate and proportionate measure.

329    Thus, first, as has been found in paragraphs 177 to 181 above, the ECB did not merely reproduce in the contested decision the findings made by the FCMC in the draft withdrawal decision. Secondly, it is apparent from paragraphs 1 and 4.2 of the contested decision that it clearly indicates the provisions of EU law and Latvian national law which form the basis of the ECB’s competence to withdraw the applicant’s authorisation and the provisions of EU law and Latvian national law that were infringed by the applicant and which justified such withdrawal.

330    In addition, while it is true that the contested decision, as regards infringements of the regulatory anti-money laundering requirements, does not expressly mention Article 67(1)(o) of Directive 2013/36, it nevertheless refers to the rules of Latvian law which relate to that provision and which transpose that directive on that issue. That omission cannot therefore render the contested decision unlawful. In any event, it is apparent from the case-law that failure to refer to a precise provision need not necessarily constitute an infringement of essential procedural requirements when the legal basis for the measure may be determined from other parts of the measure, as such explicit reference is indispensable only where, in its absence, the parties concerned and the Community judicature are left uncertain as to the precise legal basis (see order of 14 May 2008, Icuna.Com v Parliament, T‑383/06 and T‑71/07, EU:T:2008:148, paragraph 68 and the case-law cited). In the present case, the statement of reasons for the contested decision enabled the applicant to understand the provisions of EU law in question and to formulate its objections and the EU judicature to exercise its power of review.

331    Next, it should be borne in mind that the contested decision forms part of a multiannual dialogue between the applicant and the FCMC, so that the applicant was aware of the factual and procedural context of that decision.

332    Thirdly, as noted in paragraph 327 above, it is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question The statement of reasons for the contested decision enabled the applicant to understand the reasons warranting the adoption of that decision and to formulate its objections and the EU judicature to exercise its power of review.

333    In the light of the foregoing, the present complaint must be rejected.

(j)    The tenth complaint, relating to notification of the contested decision

334    The applicant submits, in essence, that the contested decision was not notified to its management, as required, but only to its liquidator, so that that decision is vitiated by a procedural defect.

335    The ECB and the Commission contest the applicant’s arguments.

336    In that regard, it is apparent from the file that the contested decision was notified to the applicant by email of 13 July 2016, which, moreover, it itself confirmed in paragraph 2 of the application. It must therefore be stated that the applicant’s argument alleging failure to notify that decision has no factual basis.

337    In any event, a failure to notify the contested decision, which is capable of affecting only the calculation of the starting point of the period for bringing an action as referred to in the sixth paragraph of Article 263 TFEU, does not, as such, constitute a procedural defect capable of affecting the legality of that decision.

338    Having regard to the above, the present complaint must be rejected and, accordingly, the plea must be rejected in its entirety.

339    In the light of all the foregoing, the action must be dismissed in its entirety, without it being necessary to order, by way of measure of inquiry, the production by the ECB of the entire file, since the Court has been able to rule on the action on the basis of the forms of order sought, the pleas in law and the arguments put forward in the course of the proceedings and in the light of the annexes lodged by the parties.

 Costs

340    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

341    As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the ECB.

342    Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court. In view of Mr Buimisters’ death during the course of the proceedings, it is appropriate to decide not to order him to pay the ECB’s costs.

343    Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings must bear their own costs. Accordingly, the European Commission and the Republic of Latvia must bear their own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Declares that there is no longer any need to adjudicate on the action in so far as it was brought by Mr Igors Buimisters;

2.      Dismisses the action;

3.      Orders Trasta Komercbanka AS and the other applicants whose names are included in the annex, with the exception of Mr Buimisters, to pay the costs;

4.      Orders Mr Buimisters to bear his own costs;

5.      Orders the European Commission and the Republic of Latvia to bear their own costs.

Delivered in open court in Luxembourg on 30 November 2022.

*      Language of the case: English.

1 The list of the other applicants is annexed only to the version sent to the parties.

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