Misunderstanding the Legal Framework applicable to the Single Supervisory Mechanism: Silvio Berlusconi vs the European Central Bank (Case T-913/16 and Joined Cases C-512/22 P and C-513/22 P)

On 19 September 2024 the Court of Justice delivered its decision in the two joined appeal cases mentioned in the title. It was the end of an administrative and judicial saga spanning more than a decade, involving national and EU administrative authorities and various courts at the Member State (Italy) and EU level. It included national and EU administrative decisions with proceedings before Italian and EU administrative courts, as well as a preliminary ruling from the Court of Justice on the interpretation of the relevant provisions of Regulation (EU) 1024/2014 (the Single Supervisory Mechanism Regulation, SSMR in short) The sum of all those acts and decisions is a remarkable judicial case, whose wrong conclusions must be mostly ascribed to the errors of facts committed by the General Court. As shown in the paper, had the General Court correctly assessed the facts of the case, the ECB’s decision would have never been annulled in appeal. This notwithstanding, the retroactivity analysis of prudential requirements enshrined in European law since 1989 in the appeal judgment is difficult to comprehend and also cause for concern. In the end, the Berlusconi case can be considered a failed test for the effectiveness of judicial protection in European prudential supervision.