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.