La ECB will not have to pay any compensation to the former major shareholders of Banca Carige, that is to say the Malacalza family. It was decided there European Court of Justice which, with the sentence published today, Wednesday 5 June, ruled on the legal action presented by Malacalza Investimenti and Vittorio Malacalza.
The appeal centered on the actions or omissions of the ECB supervision on Carige starting from 2014 and on the extraordinary administration of the bank (now in Bper) at the beginning of 2019. After a cumulative investment of well over half a billion, the Malacalzas had 27,5% of the bank at the end of 2018.
Banca Carige: the Malacalza family's appeal
Carige was placed under special administration at the beginning of 2019, after years of crisis, and in 2022 it became part of the Bper group, a path supported by the supervisory authority. The Malacalzas, however, contested the choices and in 2021 asked the EU Court of Justice to order the ECB to compensate them.
Between 2015 and 2019, the ECB adopted various supervisory intervention measures. The appeal brought by Malacalza Investimenti and Vittorio Malacalza asked for condemn the Union to pay them the sums of 870.525.670 euros (for the first) and 9.546.022 euros (for the second), respectively, as compensation for damage which they believe they have suffered as a result of actions taken by the ECB. In their opinion, some of them would indeed have been contrary to the duties associated with these functions, in particular to the principles of protection of property, proportionality, good administration, impartiality, equal treatment, transparency, good faith and protection of legitimate expectations.
The ruling of the EU Court
The Court in Luxembourg does not agree, according to which "none of the offenses alleged against the ECB in the context of its supervision of Banca Carige can give rise to the non-contractual liability of the Union".
In its ruling the Court recalls that, "in order for the Union to be liable in non-contractual matters, individuals and companies must demonstrate that three conditions are cumulatively satisfied: the illegality of the behavior attributable to the institution or its agents in the exercise of their functions, the actuality of the damage and the existence of a causal link between the behavior reported and the damage complained of". The first of these conditions is satisfied when the contested behavior implies a legal rule intended to confer rights on individuals and businesses and when the violation contested against the institution is sufficiently qualified".
In this regard, he underlined the EU judges, Malacalza Investimenti and Vittorio Malacalza must demonstrate that the ECB has seriously and manifestly violated, by abusing its discretionary power, a provision of Union law which confers on them rights. In its ruling, the Court concludes that such requirement was not met. In fact, "either the relevant provisions of Union law do not confer any rights on individuals and companies, or the violation of is not sufficiently qualified, or the arguments of Malacalza Investimenti and Vittorio Malacalza are inadmissible".
The Court therefore rejected the appeal without assessing whether the other conditions for establishing non-contractual liability of the Union are satisfied.
