In a judgement delivered on Wednesday 19 December (Case C-219/17), the Court confirmed that the Court of Justice of the European Union has sole jurisdiction to assess whether the legality of the European Central Bank's (ECB) decision opposing the acquisition of a qualifying holding in Banca Mediolanum by Fininvest and Mr Berlusconi is affected by possible defects in the preparatory acts of the Bank of Italy.
In October 2016, the ECB opposed the acquisition by Fininvest – held by former Italian President Silvio Berlusconi – of a qualifying stake in Banca Mediolanum. It acted on the basis of an unfavourable report from the Bank of Italy as to the good repute of the buyers. The Italian businessman, who indirectly acquired the bank stake as the majority shareholder of Fininvest, was convicted of tax fraud.
Mr Berlusconi and Fininvest challenged the ECB's decision before the General Court of the European Union (Case T-913/16) and the acts of the Bank of Italy before the Italian State Council. The latter asked the Court whether it is for the national judges or those of the Union to review the legality of the acts of a competent national authority, in this case Bank of Italy, as part of a procedure for authorising a qualifying participation in a banking institution.
By its judgement, the Court finds that the TFEU (Article 267) confers on the courts of the Union, exclusive competence to review the legality of acts adopted by a Union institution, such as the ECB.
The act of the EU institution is sometimes adopted following a decision-making process in which the acts of a national competent authority constitute intermediate stages.
The Court makes a clear distinction between two situations: (1) the European Union institution has only a limited or non-existent margin of discretion, so that the act of the national authority binds the Union institution; (2) the European Union institution alone exercises a final decision-making power without being bound by the act of a national authority.
In the first case, it is for the national courts to deal with irregularities that may affect such a national act, by referring the matter to the Court for a preliminary ruling where appropriate.
In the second case, it is for the Union judge to not only rule on the legality of the final decision taken by the Union institution, but also to examine any potential defects in the preparatory acts or proposals made by the national authority that might affect the validity of that final decision.
Within the euro zone banking union, the ECB has sole competence to decide whether or not to authorise the proposed acquisition following the procedure governed by the so-called 'CRD IV' Directive (2013/36) and Regulation (1024/2013) establishing the single supervisory mechanism.
Consequently, the Court considers that the Union judge alone has competence to assess the legality of the ECB's contested decision of October 2016. (Original version in French by Mathieu Bion)