Action brought on 18 July 2018 — Triantafyllopoulos and Others v ECB
(Case T-451/18)
(2018/C 373/13)
Language of the case: Greek
Parties
Applicants: Panagiotis Triantafyllopoulos and 487 other applicants (Patras, Greece) (represented by: N. Ioannou, lawyer)
Defendant: European Central Bank
Form of order sought
The applicants claim that the General Court should:
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order the European Central Bank to provide compensation for their actual harm, as that is specified for each of them in the pleadings, amounting to EUR 83,77 per share in the company, multiplied by the number of shares of which each applicant, natural person or legal person, is the holder;
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order the European Central Bank to pay the costs.
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Pleas in law and main arguments
The subject-matter of this action concerns the application for reparation for harm which it is claimed was caused to the applicants as shareholders of the ‘Αchaiki Syneteristiki Τrapeza Syn. PE’ (the Achaiki Cooperative Bank) by its special liquidation, and which consists of the current actual loss, that is the value of the shares held by each of the applicants. The harm is claimed to have been caused by the inadequate auditing and supervision of the Τrapeza tis Ellados (National Bank of Greece; ‘the NBG’) with respect to Αchaiki Syneteristiki Τrapeza in the period from 1999 until 2012, but also by the inadequate auditing and supervision of the European Central Bank with respect to the NBG, and, through the latter but also directly, with respect to the Αchaiki Synetiristiki Τrapeza.
In support of the action, the applicants rely on the following pleas in law:
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1.
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First plea in law: based on the facts, the criminal prosecutions that have been initiated, and national law.
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From the year 1999 and until the revocation of the licence of the Αchaiki Synetiristiki Τrapeza by the NBG, the various administrations pillaged the bank’s assets, and diverted them to criminal purposes, wholly distinct from the lawful purposes. This took place without any ostensible adherence to the lawful procedures for the operation of a bank. The NBG is under national law the sole competent supervisory authority, with power to take all measures, for prevention, auditing and enforcement, to ensure that all that happened did not happen and did not lead to the dissipation of the bank’s assets.
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2.
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Second plea in law: based on Article 340 TFEU.
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Under Article 340(3) TFEU the ECB, in that it has a separate legal personality, is obliged to make good, in accordance with the gneral principles common to the laws of the Member States, any damage caused by it or by its servants in the performance of their duties.
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3.
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Third plea in law: based on the case-law of the Court.
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The case-law of the Court requires that there be demonstated a sufficiently serious infringement of a rule of law intended to confer rights on individuals. With respect to the requirement that the infringment must be sufficiently serious, the criterion laid down in the case-law for holding that that condition is satisifed is that the Community body concerned has manifestly and seriously exceeded the limits of the discretion conferred on it. The scale and degree of the harm that has been caused, together with the number of those harmed, can be used as a criterion in relation to whether the body involved has manifestly and seriously exceeded the limits of its discretion. It should also be pointed out that there is a sufficiently serious breach of EU law if the body has committed the fault when not exhibiting the normal degree of prudence and diligence. The ECB failed to fulfil its obligations under the Treaties and under its Statute to impose penalties on the NBG, because of its inadequate supervision of the Αchaiki Synetiristiki Τrapeza. The ECB for its part is responsible for checking whether the national banks of the Member States are operating in accordance with the provisions in the Treaties and in its Statute. In the event that it has not undertaken such a check we can speak of administrative inadequacies — infringement of the principle of sound managment — which could be covered if the ECB had taken the appropriate measures to ‘remind’ the NBG of its duties under the Treaties and to make it known it that it is not permissible to leave credit institutions without supervision, becaues that jeopardises the monetary stability of the European Union, which is the basic raison d’etre of the ECB. The ECB had an obligation to review whether the NBG fulfilled its obligations as a member of the European System of Central Banks, and in the event that it found that those obligations were not fulfilled, the ECB should have adopted the appropriate measures, rather than do nothing.
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