Bankruptcy Banca Marche: the fault of Brussels or a succubus government?
Banca Marche case: the EU court rejects the claim for damages and acquits the European Commission. Giuseppe Liturri's analysis
The history of the controversial relations between our country and the Competition Directorate of the EU Commission is enriched with another chapter. After Banca Tercas, last Wednesday it was the turn of Banca Marche, one of the four banks whose shareholders and subordinated bondholders fell under the shadow of the resolution ordered by the government led by Matteo Renzi, on the proposal of the Bank of Italy, in November 2015.
A few months after the decision with which the Commission was rejected for the second time in two years on the Tercas affair, yesterday for the management led by Margrethe Vestager the revenge arrived.
Before the judges of the Court of the EU, the request for compensation for damages against the Commission, presented by the main shareholder foundations of the Marches institute, was under discussion. And the Court not only denied any responsibility of the Commission but, in order not to miss anything, it attributed the resolution of the bank to the state of failure, which was considered decisive cause .
In short, we did everything ourselves, without any significant conditioning coming from the Commission. In any case, it is not legally proven that, in the absence of the unlawful conduct of the Commission – which mistakenly believed that this intervention was State aid – the Interbank Deposit Protection Fund (FITD) would still have managed to save the bank. A diabolical test that can only be conceived and requested in the dystopian world of this EU.
It should be noted that Article 340 of the TFEU – which governs the non-contractual liability of EU institutions – leaves a rather modest space for such actions. Indeed, it is necessary to prove that there has been a violation by the Commission and that it has caused damage, according to a sufficiently direct and decisive cause-effect relationship. All to be proved against the applicants.
The lesson that is drawn from this is that the Commission can sometimes find itself succumbing to some judgments (such as Tercas) but must never be called to answer for the damages caused by its acts. This is the summary of the sword defense made by the judges, well aware of the crack that could have opened in the wall of EU law, giving the bank's shareholders right.
A thesis that is truly perplexing and that passes like a steam roller on those frantic 11 months between December 2014 and October / November 2015 in which Pier Carlo Padoan, minister of the economy at the time, was in constant contact with the offices of the Commission for convince them – or at least we dare to hope that he tried – to apply a practice that, thanks to the intervention of the FITD, had prevented bank failures from producing even worse consequences for the system.
This is the decisive point: was the government of the time sufficiently firm in defending the interests of our country? Or was he guilty acquiescent? Or, even worse, did he use the side of the Commission's "warnings" as an endorsement to take decisions that were pleasing to the Mef bureaucracy and to the Bank of Italy?
A parliamentary inquiry commission was not enough to clarify these doubts.
According to the judges, the Commission, which, by means of letters and informal warnings, warned that the intervention of the FITD would be assessed as State aid, is free from blame. These were "provisional positions". Too bad that for Padoan and Bank of Italy they sounded like "offers not to be rejected", in the words of Don Vito Corleone.
Consequently, the FITD, which even on 8 October 2015, after having completed a due diligence on the bank's accounts, had approved a capital increase of 1.2 billion, was prevented from carrying out its project. The Commission, whose thesis was accepted, only asked to notify the capital increase project in advance, so that it could fully express its opinion. Truly paradoxical thesis. But if it was not about state aid, what need would there have been to notify anything? This the judges do not explain.
On the contrary, they argue that the applicants cannot invoke the position expressed on Tercas as evidence that the Commission would have assessed in the same way the intervention of the FITD in Banca Marche for which there was only one project, and therefore the Commission could not express itself and could not consequently block anything. With this thesis, however, the Court shows an open side: then perhaps the conditions for compensation for damages exist on Banca Tercas, given that the Commission has been twice the loser in court for the decision taken on the case of the Abruzzo bank? In this case in Brussels they will not be able to justify themselves by saying that they did not have a clear outline of the project!
Too bad that the Mef in December 2015, in a long note, had explained that, despite the fact that the recapitalization plan of the FITD was already ready, it was the position of the Commission – firmly oriented to consider the intervention of the FITD as State aid – to to force the passage through the resolution, making vain the save already planned. It was the famous letter of November 19, signed by Vestager, that crystallized the aut or: do you want to involve the FITD? Then you have to go through the resolution with the sacrifice of shareholders and subordinated bondholders. Instead, the EU Court maintains that this decision was "adopted in the exercise of the competences and the margin of discretion of the Italian authorities … and was not decisively influenced by the attitude of the Commission".
But if it was the failure of the bank to impose the resolution, as the judges believe, then because until a few weeks earlier everyone believed that the FITD project would have healed it, without sacrificing the bondholders, as also results from a precise deposition of the president of the FITD, Salvatore Maccarone, before the court of Ancona? Who blocked that project (the Commission), on the basis of a completely unfounded assessment, how can today claim that that failure would have happened anyway, when it was evident that until a few weeks before the resolution it did not exist, thanks to the FITD?
It would be like arguing that anyone who prevented throwing a life jacket into the sea, moreover by facilitating drowning, is guilty because those who asked for help would have drowned anyway. With the aggravating circumstance that, in addition to not having thrown that life jacket, the rescuer may also have contributed to the drowning.
(Updated and expanded version of an article published in the newspaper La Verità)
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/dissesto-banca-marche-colpa-di-bruxelles-o-di-un-governo-succube/ on Sat, 03 Jul 2021 09:31:57 +0000.