Kargins v Commission (Non-contractual liability - State aid - Unlawfulness of the conduct alleged against the EU institution - Judgment) [2025] EUECJ T-350/23 (19 March 2025)
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Kargins v Commission (Non-contractual liability - State aid - Unlawfulness of the conduct alleged against the EU institution - Judgment) [2025] EUECJ T-350/23 (19 March 2025)
URL: http://www.bailii.org/eu/cases/EUECJ/2025/T35023.html Cite as:
ECLI:EU:T:2025:312,
EU:T:2025:312,
[2025] EUECJ T-350/23
( Non-contractual liability - State aid - Intervention of the Commission as amicus curiae before a national court - Unlawfulness of the conduct alleged against the EU institution - Plea of illegality - Sufficiently serious breach of a rule of law intended to confer rights on individuals - Article 29(2) of Regulation (EU) 2015/1589 - Principles of separation of powers, independence of national courts, right to an effective remedy, impartiality and neutrality )
In Case T‑350/23,
Rems Kargins, residing in Riga (Latvia), represented by O. Behrends, lawyer,
applicant,
v
European Commission, represented by L. Flynn and B. Stromsky, acting as Agents,
defendant,
supported by
Council of the European Union, represented by A.-L. Meyer and A. Jensen, acting as Agents,
intervener,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, V. Tomljenović (Rapporteur) and W. Valasidis, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 6 November 2024,
gives the following
Judgment
1 By his action based on Article 268 TFEU and the second paragraph of Article 340 TFEU, the applicant, Mr Rems Kargins, seeks compensation for the damage which he claims to have suffered as a result of the European Commission’s alleged unlawful conduct, on account of the Commission’s intervention as amicus curiae in proceedings between Mr Kargins and a third company before the Augstākā tiesa (Supreme Court, Latvia).
Background to the dispute
2 The present action has arisen in the context of a dispute before a national court between, on the one hand, the applicant, the successor in title to a former shareholder of AS Parex banka, and, on the other hand, a third company which succeeded that bank, as regards certain rights and obligations of that third company.
3 On 12 May 2008, a former shareholder of Parex banka made a deposit with that bank for a period of seven years at an annual interest rate of 12% on the amount deposited. It was agreed that that deposit would be used by that bank as subordinated capital.
4 On 19 June 2008, ownership of the deposit in question was transferred to the applicant.
5 In the context of the banking and financial crisis which began in 2008, the authorities of the Republic of Latvia granted Parex banka a series of aid measures.
6 Those measures were the subject of the Commission Decision of 15 September 2010 on the State aid C 26/09 (ex N 289/09) which Latvia is planning to implement for the restructuring of AS Parex banka (OJ 2011 L 163, p. 28). Having found that the Republic of Latvia had granted aid beyond the aid measures which the Commission had authorised by the decision of 15 September 2010, the Commission adopted Decision (EU) 2015/162 of 9 July 2014 on the State aid SA.36612 (2014/C) (ex 2013/NN) implemented by Latvia for Parex (OJ 2015 L 27, p. 12).
7 By the decisions referred to in paragraph 6 above, the Commission approved the restructuring plan for Parex banka, which provided for the splitting of that bank’s assets in order to form, on the one hand, a new bank, known as the ‘good bank’, which would eventually be sold to a private investor, and, on the other hand, a ‘bad bank’ (‘Reverta’), which would remain the property of the Latvian State and which would hold part of the non-core and non-performing assets of the former bank.
8 In addition, the Commission validated the commitments submitted by the Republic of Latvia seeking, inter alia, to enhance burden-sharing measures, and which prevented any cash outflow, such as the payment of interest, dividends or coupons and the repayment of outstanding debts, to Parex banka’s holders of legacy subordinated loans, until all State aid granted by the Republic of Latvia was repaid in full.
9 Following the splitting of Parex banka’s assets and activities, giving rise to the ‘good bank’ and Reverta, the applicant’s deposit was assigned to Reverta, which continued to fulfil its obligations to the applicant by regularly paying him interest.
10 On 21 November 2012, the applicant brought civil proceedings against Reverta before the Latvian courts, seeking repayment of the deposit.
11 On 29 May 2013, the court of first instance, the Rīgas apgabaltiesas Civillietu tiesu kolēģija (Regional Court, Riga (Division of Civil Cases), Latvia) decided in favour of the applicant. On 10 June 2013, Reverta brought an appeal before the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division), Latvia).
12 By judgment of 13 June 2016, the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)) upheld the decision of the lower court in favour of the applicant. Reverta brought an appeal on a point of law against that judgment on 26 August 2016.
13 By letter dated 19 September 2016, the Latvian Ministry of Finance informed the Commission of the judgment of the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)) of 13 June 2016, which had upheld the applicant’s action; that situation was presented as potentially contradicting the Commission’s decisions, referred to in paragraph 6 above, approving the aid measures granted to Parex banka. In that letter, that ministry also invited the Commission to intervene in the national proceedings in question as amicus curiae, under Article 29(2) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).
14 By decision of 10 November 2016, the Commission, on the basis of Article 29(2) of Regulation 2015/1589, decided to submit observations as amicus curiae to the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)) in the context of the national proceedings in question.
15 On 26 January 2017, the Commission submitted its observations as amicus curiae before the Augstākā tiesa (Supreme Court) in the context of the national proceedings in question.
16 By judgment of 28 June 2018, the Augstākā tiesa (Supreme Court) set aside the judgment of 13 June 2016 of the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)), finding, inter alia, that the latter had not taken into account the Komercdarbības atbalsta kontroles likums (Law on the control of support for commercial activities) of 19 June 2014 (Latvijas Vēstnesis, 2014, No 123), which prohibited an undertaking that receives State aid from fulfilling subordinated obligations, including repayment of loans, until the end of the grant of the State support, if so provided for by a Commission decision or by national regulatory provisions.
Forms of order sought
17 The applicant claims, in essence, that the Court should:
– declare that the Commission is liable for the damage it has caused to the applicant as a result of its interference in national judicial proceedings;
– order the Commission to compensate the applicant for that damage, amounting to at least EUR 15 028 841.93 plus interest at the rate of 12% per annum, from 23 June 2016 until payment in full;
19 The Council of the European Union contends, in essence, that the action should be dismissed.
Law
20 By the present action, the applicant alleges that the European Union is non-contractually liable on account of the Commission’s intervention as amicus curiae in the proceedings between the applicant and Reverta before the Augstākā tiesa (Supreme Court).
21 It should be noted that the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely, first, the unlawfulness of the conduct alleged against the EU institution, second, the fact of damage and, third, the existence of a causal link between the conduct of that institution and the damage complained of (see judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 41 and the case-law cited).
22 If any one of those conditions is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union (see judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraph 65 and the case-law cited; judgment of 6 June 2019, Dalli v Commission, T‑399/17, not published, EU:T:2019:384, paragraph 46).
23 In the present case, the applicant claims that the Commission acted unlawfully by submitting its observations as amicus curiae before the Augstākā tiesa (Supreme Court).
24 As a preliminary point, the applicant submits that Article 29 of Regulation 2015/1589 is unlawful.
25 In so far as a finding that Article 29 of Regulation 2015/1589 is unlawful would necessarily entail the unlawfulness of the Commission’s conduct as a result of its intervention as amicus curiae under that provision, it is necessary to examine, at the outset, the plea of illegality raised by the applicant, before examining the other heads of illegality relied on in support of the claim for compensation.
The plea of illegality
26 The applicant asks the Court to declare, incidentally, that Article 29(2) of Regulation 2015/1589 is inapplicable, since it lacks a legal basis, infringes several provisions of EU law, namely Article 267 TFEU, the second subparagraph of Article 108(2) TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and does not offer sufficient procedural safeguards.
27 The Commission and the Council dispute the applicant’s arguments.
28 According to Article 29 of Regulation 2015/1589:
‘1. For the application of Article 107(1) and Article 108 TFEU, the courts of the Member States may ask the Commission to transmit to them information in its possession or its opinion on questions concerning the application of State aid rules.
2. Where the coherent application of Article 107(1) or Article 108 TFEU so requires, the Commission, acting on its own initiative, may submit written observations to the courts of the Member States that are responsible for applying the State aid rules. …’
29 In the first place, as regards the legal basis for the mechanism provided for in Article 29(2) of Regulation 2015/1589, it must be noted that that regulation was adopted on the basis of Article 109 TFEU. The latter provision provides that the Council may adopt any appropriate regulations for the application of Articles 107 and 108 TFEU. It therefore confers a broad power on the Council, in so far as it refers to ‘any appropriate regulations’, provided that they relate to the application of Articles 107 and 108 TFEU.
30 In that regard, first, it should be noted that the Commission plays a central and exclusive role as regards the examination of the compatibility of aid measures with the internal market. Second, it is the role of national courts to safeguard the rights of individuals, under Article 108(3) TFEU, pending a final decision of the Commission, and, where such a final decision has been adopted, the national courts must draw conclusions from the binding nature of that decision, in accordance with the principle of the primacy of EU law.
31 Thus, both the Commission, in a central role, and the national courts, as regards the safeguarding of the rights of individuals, under Article 108 TFEU, and the consequences of the decisions, under that article, are called upon, each in their respective role, to apply Articles 107 and 108 TFEU.
32 In those circumstances, it must be noted that, in the exercise of the broad power conferred by Article 109 TFEU, the Council was entitled to consider it useful, for the application of Articles 107 and 108 TFEU, to confer on the Commission powers for the purposes, inter alia, of harmonised application within the European Union and cooperation between the Commission and the national courts.
33 Recital 37 of Regulation 2015/1589 states that consistency in the application of the State aid rules requires that arrangements be established for cooperation between the courts of the Member States and the Commission, which enable national courts to ask the Commission for information or for its opinion on points concerning the application of State aid rules, and enable the Commission to submit written or oral observations to those courts, whilst acting in accordance with its duty to defend the public interest.
34 Furthermore, recital 38 of Regulation 2015/1589 states, first of all, that the Commission’s observations should be without prejudice to Article 267 TFEU and that they are not legally binding on the national courts. Next, it is stated that the observations are to be submitted in accordance with national procedural rules, including those safeguarding the rights of the parties. In addition, it is stated that the Commission’s observations are to respect the independence of the national courts. Lastly, as regards, more specifically, the observations submitted by the Commission, on its own initiative, it is stated that they are to be limited to cases that are important for the coherent application of Article 107(1) TFEU or Article 108 TFEU.
35 Accordingly, it must be held that the mechanism for cooperation between the Commission and the national courts, provided for in Article 29(2) of Regulation 2015/1589, may be regarded as useful for the purposes of applying Articles 107 and 108 TFEU, within the meaning of Article 109 TFEU.
36 In those circumstances, the applicant’s argument alleging that there is no basis in primary EU law for the mechanism provided for in Article 29(2) of Regulation 2015/1589 must be rejected.
37 In the second place, as regards the compatibility with Article 267 TFEU, it should be noted that it is not apparent from Article 29 of Regulation 2015/1589 that the Commission’s intervention, whether at the request of the national courts or on its own initiative, interferes with or prejudges the possibility or, depending on the circumstances, the obligation for national courts to refer a question to the Court of Justice for a preliminary ruling under Article 267 TFEU.
38 As stated in recital 38 of Regulation 2015/1589, the Commission’s observations, as amicus curiae, should be without prejudice to Article 267 TFEU. Thus, the mechanism provided for in Article 29 of that regulation forms part of the spirit of sincere cooperation, provided for in Article 4 TEU. This is an opportunity for national courts to ask the Commission to issue opinions and, for the Commission, to submit observations that are not binding on those courts. This is a form of support available to the national courts, in so far as they consider it useful for the application of Articles 107 and 108 TFEU.
39 In that regard, the Court of Justice has held that, if the national court entertained doubts or had difficulties as regards the application of Articles 107 and 108 TFEU, it remained open to it to contact the Commission for assistance in accordance with the principle of sincere cooperation (see, to that effect, judgment of 13 February 2014, Mediaset, C‑69/13, EU:C:2014:71, paragraph 30).
40 Similarly, as regards the Commission’s power, acting on its own initiative, to submit written observations to the courts of the Member States, the Court of Justice has held, with regard to Article 15(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), which provides, as regards the application of Articles 101 and 102 TFEU, a mechanism identical to that provided for in Article 29(2) of Regulation 2015/1589, that such a cooperation mechanism is part of the general principle of sincere cooperation, referred to in Article 4 TEU, which is of particular importance where that cooperation involves the judicial authorities of a Member State who are responsible for ensuring that EU law is applied and respected in the national legal system (see, to that effect, judgment of 11 June 2009, X, C‑429/07, EU:C:2009:359, paragraph 21).
41 By contrast, the national courts’ power or obligation to refer a question for a preliminary ruling under Article 267 TFEU is based on the principles of uniform application and primacy of EU law. Thus, that provision confers on national courts the power and, in certain circumstances, an obligation, to make a reference to the Court of Justice once the national court considers, either of its own motion or at the request of the parties, that the substance of the dispute involves a question which falls within the scope of the first paragraph of that article. It follows that the national courts have the most extensive power to make a reference to the Court of Justice if they consider that a case pending before them raises issues involving an interpretation or assessment of the validity of provisions of EU law and requiring a decision by them (see judgment of 21 July 2011, Kelly, C‑104/10, EU:C:2011:506, paragraph 61 and the case-law cited).
42 The mechanism provided for in Article 267 TFEU and that provided for in Article 29 of Regulation 2015/1589 are therefore complementary mechanisms which are not mutually exclusive, in so far as it is very conceivable that, after receiving observations from the Commission, pursuant to Article 29 of Regulation 2015/1589, on an issue relating to the application of Articles 107 and 108 TFEU, a national court may subsequently refer a question to the Court of Justice for a preliminary ruling on that same issue, pursuant to Article 267 TFEU.
43 In the case which gave rise to the judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172), the Court of Justice ruled in the context of a reference for a preliminary ruling under Article 267 TFEU, whereas, in the dispute in the main proceedings before the national court concerned, the Commission submitted observations as amicus curiae (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 37).
44 Furthermore, it should be noted that the Commission’s observations, as amicus curiae, are not binding on national courts.
45 In that regard, the Court of Justice has held that the possibility for national courts to seek clarification from the Commission on the application of Articles 107 and 108 TFEU was without prejudice to the national courts’ option or obligation to refer a question to the Court of Justice for a preliminary ruling on the interpretation of those provisions, pursuant to Article 267 TFEU (see, to that effect, judgment of 11 July 1996, SFEI and Others, C‑39/94, EU:C:1996:285, paragraphs 50 and 51).
46 It follows that, contrary to what the applicant submits, the mechanism provided for in Article 29 of Regulation 2015/1589 is not contrary to Article 267 TFEU.
47 In the third place, as regards the applicant’s arguments that the mechanism provided for in Article 29 of Regulation 2015/1589 is incompatible with the second subparagraph of Article 108(2) TFEU, in that it interferes with the jurisdiction of the Court of Justice to examine a possible failure on the part of the Member State concerned to fulfil its obligations, the following considerations must be noted.
48 Under Article 108(2) TFEU, the Commission may refer the matter directly to the Court of Justice, in infringement proceedings, where a Member State does not comply with a Commission decision finding that State aid is not compatible with the internal market, under Article 107 TFEU, and must be abolished or altered.
49 By contrast, it is not apparent from Article 108 TFEU that the possibility for the Commission to refer the matter directly to the Court of Justice is precluded by the fact that the Commission intervened as amicus curiae in national proceedings under Article 29 of Regulation 2015/1589. Similarly, it is not apparent from the latter provision that the right to intervene as amicus curiae is conditional on whether or not the Commission can refer the matter to the Court of Justice under the second subparagraph of Article 108(2) TFEU. It follows that the mechanism provided for in Article 29 of Regulation 2015/1589 in no way affects the mechanism for the Commission’s review of State aid, provided for in Article 108(2) TFEU. Thus, the fact that, in the context of national proceedings, the Commission intervenes, in a non-judicial capacity, by submitting observations which are not binding on the national courts is without prejudice to the procedure which the Commission may initiate under Article 108(2) TFEU, in the event that it considers that a State measure is contrary to Article 107 TFEU and should be abolished or altered.
50 These are therefore different, complementary and not mutually exclusive mechanisms.
51 It follows that the mechanism provided for in Article 29 of Regulation 2015/1589 is not contrary to Article 108 TFEU.
52 Even if the applicant’s wholly unsubstantiated argument, namely that Article 108 TFEU is itself unlawful, were admissible, it is entirely unfounded. The prohibition of State aid, laid down in Article 107 TFEU, is at the very basis of the functioning of the internal market, competition in which must not be distorted by State measures. Similarly, the supervisory function granted to the Commission by Article 108 TFEU is a fundamental element of the system for the review of State aid, established by the Treaties.
53 In the fourth place, as regards the procedural guarantees governing the application of Article 29(2) of Regulation 2015/1589, it follows from recital 38 of that regulation that the Commission’s observations are to be submitted in accordance with national procedural rules, including those safeguarding the rights of the parties, and are to respect the independence of national courts.
54 Accordingly, it is the procedural safeguards provided for under national law that are applicable in the context of the national proceedings in question; that law is deemed to comply with Article 19 TEU and Article 47 of the Charter. The applicant’s argument that the mechanism provided for in Article 29 of Regulation 2015/1589 does not provide sufficient procedural safeguards must therefore be rejected.
55 It follows from the foregoing considerations that the plea of illegality raised by the applicant against Article 29(2) of Regulation 2015/1589 must be rejected.
The other heads of illegality
56 In addition to the plea of illegality, the applicant relies, in support of the claim for damages, on seven heads of illegality, which overlap in part and allege, in essence, a sufficiently serious breach, first, of Article 29(2) of Regulation 2015/1589, second, of the principle of the separation of powers, third, of the principle of the independence of national courts and of the right to an effective remedy, provided for in Article 47 of the Charter, and, fourth, of the principles of impartiality and neutrality, laid down in Article 41 of the Charter.
The sufficiently serious breach of Article 29(2) of Regulation 2015/1589
57 In essence, the applicant complains that the Commission, as amicus curiae, did not submit in an objective manner observations relating to the application of Articles 107 and 108 TFEU and failed to fulfil its duty of impartiality in that it intervened on the initiative of one of the parties to the dispute, thereby infringing Article 29(2) of Regulation 2015/1589.
58 In the first place, as is apparent from its observations submitted as amicus curiae in the national proceedings at issue, the Commission merely described the decisions referred to in paragraph 6 above, which it had adopted in 2010 and 2014, relating to the compatibility of the aid granted to Parex banka. It stated that those decisions, which authorised the aid in question, were subject to conditions based on commitments by the Republic of Latvia concerning burden-sharing. The Commission explained, in that respect, that provision was made, inter alia, for the non-repayment of subordinated loans until the aid was repaid. It also stated that those decisions were binding on the Republic of Latvia. In addition, it stated that failure to comply with the conditions laid down in the decisions in question would mean that those decisions would no longer apply and that aid granted outside the conditions in the decisions could no longer be regarded as compatible, which could lead to the aid being recovered.
59 Thus, contrary to what the applicant claims, they are not ‘biased’ or ‘intimidating’ observations, but observations describing, in an objective and neutral manner, the legal situation as regards the aid granted to Parex banka, following the Republic of Latvia’s notification of that aid, pursuant to Article 108(3) TFEU. As amicus curiae, the Commission merely stated, in the context of the national proceedings in question, that that aid had been declared compatible with the internal market, subject to a series of conditions; failure to comply with them would mean that that aid would no longer be regarded as compatible and that, therefore, the aid would be caught by the prohibition in Article 107 TFEU, which would mean that it would have to be recovered by the Republic of Latvia.
60 In the second place, the applicant’s arguments that the observations submitted by the Commission as amicus curiae in the national proceedings in question do not concern the application of Articles 107 and 108 TFEU, but rather the Commission’s political preferences, cannot succeed. The decisions referred to in paragraph 6 above, which are the subject of those observations, specifically concern State aid falling within the prohibition laid down in Article 107(1) TFEU; that aid was considered by the Commission, in the context of the procedure laid down in Article 108(3) TFEU, to be compatible with the internal market under Article 107(3)(b) TFEU, subject to the commitments stipulated in those decisions. In so far as the Commission explained, in those observations, the scope of its decisions and the consequences which could follow from a failure to have regard to those decisions, it ensured the uniform application of Articles 107 and 108 TFEU, which presupposes that the Member States comply with the Commission decisions addressed to them.
61 Furthermore, in so far as the outcome of the national proceedings in question could have led, in Latvia, to a failure to have regard to the decisions referred to in paragraph 6 above, those decisions forming part of a series of measures which the Commission adopted in the context of the 2008 financial crisis, it must be held, contrary to the applicant’s arguments, that, in accordance with recital 38 of Regulation 2015/1589, the observations submitted by the Commission as amicus curiae in the national proceedings in question are useful for the consistent application of Articles 107 and 108 TFEU within the European Union.
62 In the third place, as stated in paragraph 13 above, by its letter of 19 September 2016, the Latvian Ministry of Finance informed the Commission of the existence of the national proceedings between the applicant and Reverta, the latter having succeeded Parex banka concerning the deposit on which the applicant relied. In that letter, the Ministry of Finance invited the Commission, in the context of those national proceedings, to intervene as amicus curiae.
63 In that regard, it must be noted that the letter from the Latvian Ministry of Finance of 19 September 2016 constitutes a letter providing information and an invitation to intervene in the national proceedings in question as amicus curiae, to which the Commission expressly referred in its decision of 10 November 2016. Contrary to what the applicant claims, there was no lack of transparency in relation to that letter and its content.
64 In addition, the fact that the Commission was informed of the existence of the national proceedings in question by the Latvian Ministry of Finance and that that ministry invited it to intervene in the national proceedings in question as amicus curiae, in order to explain the decisions which the Commission had adopted on the State aid granted to Parex banka, does not mean that the Commission was bound by the position of the Latvian authorities. Since the Commission was under no obligation to accept that invitation, it was entirely free to decide whether or not to intervene. Furthermore, the present case does not concern the situation provided for in Article 29(1) of Regulation 2015/1589, referred to in paragraph 28 above, since it was not the national court which asked the Commission to provide it with information. Accordingly, the fact that the Commission took the decision to intervene following the letter from the Latvian Ministry of Finance of 16 September 2016 does not mean that the Commission did not act in accordance with Article 29(2) of Regulation 2015/1589, which provides that it may, acting on its own initiative, submit observations to the national courts.
65 Lastly, the applicant refers to Reverta’s press release, by which Reverta stated that it was going to bring an appeal on a point of law against the judgment of 13 June 2016, referred to in paragraph 12 above, and that it had requested the Commission to intervene in the national proceedings in question as amicus curiae. However, that press release is irrelevant for the purposes of the Commission’s intervention under Article 29(2) of Regulation 2015/1589, irrespective of the fact that that company, following its restructuring, was majority-owned by the Latvian State.
66 In those circumstances, the head of illegality alleging a sufficiently serious breach of Article 29(2) of Regulation 2015/1589 must be rejected.
The sufficiently serious breach of the principle of the separation of powers
67 The applicant submits, in essence, that, by agreeing to the Latvian Government’s request, for the purposes of intervening in support of that government in the context of national proceedings, the Commission contributed to blurring the distinction which must be drawn, at national level, between the executive and the judiciary, in breach of the principle of the separation of powers.
68 In that regard, it must be noted that the applicant’s argument that the Commission did not intervene in the national proceedings in question as amicus curiae on its own initiative, but that it acted at the request of the Latvian Government, has no factual basis. As is clear from its decision of 10 November 2016, the Commission decided to intervene on the basis of Article 29(2) of Regulation 2015/1589.
69 The fact that the Commission was informed of the existence of the national proceedings in question by the Latvian Ministry of Finance and that the latter invited it to intervene in the national proceedings in question as amicus curiae does not in any way alter the fact that the Commission remained free to submit observations to the national courts.
70 Furthermore, the fact that the applicant considers that the observations submitted by the Commission as amicus curiae in the national proceedings in question do not support his position in the national proceedings in question, but rather that of the opposing party, does not mean that there was a breach of the principle of the separation of powers. Since those observations, submitted under Article 29(2) of Regulation 2015/1589, are not binding on the national courts, the submission of them cannot result in any interference with the exercise of the national courts’ duties. Furthermore, it is apparent from the very wording of those observations that the Commission merely described, first, the decisions referred to in paragraph 6 above, which it had adopted, declaring that the aid granted to Parex banka in the context of its restructuring was compatible, and, second, the legal consequences to be drawn from a failure to comply with the commitments provided for in those decisions.
71 Lastly, as the Council rightly submits, it follows from the system of competences of the European Union, laid down in the Treaties, that the Commission has exclusive competence to assess the compatibility of aid measures with the internal market and that its decisions are binding on the Member State to which they are addressed, in accordance with the principle of the primacy of EU law. In those circumstances, the fact that, in accordance with the principle of sincere cooperation, the Commission makes available to a national court observations on its decisions on State aid, so that that court may decide, in full knowledge of the facts, on all the relevant legal matters, cannot infringe the principle of the separation of powers, even if the Commission has taken the decision to submit those observations following a letter from the authorities of that Member State.
72 In those circumstances, the head of illegality alleging a sufficiently serious breach of the principle of the separation of powers must be rejected.
The sufficiently serious breach of the principle of the independence of national courts, and of the right to an effective remedy, laid down in Article 47 of the Charter
73 The applicant submits, in essence, that, by submitting observations as amicus curiae in the national proceedings in question, the Commission did not in any way respect the independence of the national courts.
74 In the first place, it should be noted that, as stated in paragraphs 55 and 72 above, the mechanism provided for in Article 29(2) of Regulation 2015/1589 is not vitiated by illegality and does not infringe the principle of the separation of powers.
75 It is a mechanism which falls within the framework of sincere cooperation between the Commission, which has exclusive competence to review the compatibility of State aid with the internal market, and the national courts, which are called upon to apply Articles 107 and 108 TFEU.
76 As is apparent from recital 38 of Regulation 2015/1589, the observations submitted by the Commission as amicus curiae in national proceedings are not legally binding on national courts and are submitted in full respect of the independence of those courts.
77 In the second place, as follows from paragraph 58 above, the observations submitted by the Commission as amicus curiae in the national proceedings in question were limited, first, to describing, in an objective manner, the decisions referred to in paragraph 6 above, which the Commission had adopted, declaring that the aid granted to Parex banka was compatible with the internal market, subject, inter alia, to the commitments entered into by the Republic of Latvia, including the non-repayment of subordinated loans, and, second, to indicating the consequences that followed from those decisions.
78 In those circumstances, the observations submitted by the Commission as amicus curiae in the national proceedings in question, relating solely to factual and legal elements relevant to the present case, cannot be regarded as interfering with the independence of the national courts.
79 In the third place, as regards the alleged infringement of Article 47 of the Charter, it must be noted that the applicant has not put forward any other arguments to establish that his right to an effective remedy was not respected in the present case. Moreover, the applicant states, in paragraph 56 of the application and in paragraph 56 of the reply, that he does not claim that the Latvian judges did not discharge their duties in a manner consistent with those duties.
80 The applicant merely refers to his arguments relating to the lack of neutrality of the observations submitted by the Commission as amicus curiae in the national proceedings in question and to the interference, as a result of the submission of those observations, with the independence of the national courts. However, those arguments, which, moreover, have been rejected in paragraphs 59 and 78 above, do not establish that the applicant did not have access to an effective remedy before an independent and impartial tribunal.
81 In those circumstances, the head of illegality alleging a sufficiently serious breach of the principle of the independence of national courts and of the right to an effective remedy, laid down in Article 47 of the Charter, must be rejected.
The sufficiently serious breach of the principles of impartiality and neutrality laid down in Article 41 of the Charter
82 The applicant submits that the Commission, in breach of Article 41 of the Charter and recital 38 of Regulation 2015/1589, disregarded its duty of neutrality and impartiality by agreeing to intervene in a dispute between a private person and a third company, at the request of one of the parties to the dispute. According to the applicant, the Commission did not disclose that its decision to intervene was as a result of that request.
83 In the first place, it is apparent from the file that, by its letter of 19 September 2016, the Latvian Ministry of Finance informed the Commission of the national proceedings in question, which were between the applicant and Reverta before the Latvian courts. Thus, that letter informed the Commission of the appeal on a point of law which had been brought before the Augstākā tiesa (Supreme Court) against the judgment of 13 June 2016, by which the Augstākās tiesas Civillietu tiesu palāta (Supreme Court (Civil Division)) upheld the decision of the lower court, which had found in favour of the applicant, confirming his right to repayment of the EUR 15 million deposit by Reverta, as the company which succeeded Parex banka. Referring to the decisions set out in paragraph 6 above, relating to the State aid granted to Parex banka, and to the Republic of Latvia’s burden-sharing commitments, that ministry considered that the Commission’s intervention as amicus curiae was necessary in the context of those national proceedings in order to ensure a consistent application of Articles 107 and 108 TFEU.
84 It is also apparent from the file that, in its decision of 10 November 2016, the Commission expressly referred to the letter of 19 September 2016 from the Latvian Ministry of Finance, and to that ministry’s invitation to the Commission that the latter intervene in the national proceedings in question as amicus curiae.
85 Lastly, in paragraph 5 of its observations submitted as amicus curiae in the national proceedings in question, the Commission stated that, having been informed of the pending appeal on a point of law, it had, by letter of 18 November 2016, informed the Augstākā tiesa (Supreme Court) of its decision to submit observations as amicus curiae in the national proceedings in question.
86 Therefore, contrary to what the applicant claims, the fact that the Latvian Ministry of Finance informed the Commission of the appeal proceedings pending before the Augstākā tiesa (Supreme Court) and the fact that that ministry invited the Commission to intervene in the national proceedings in question as amicus curiae did not constitute a secret.
87 In the second place, as stated in paragraph 64 above, the information and the invitation to intervene in the national proceedings in question as amicus curiae, which were sent by the Latvian Ministry of Finance to the Commission, do not alter the fact that it was the latter which took the decision, pursuant to Article 29(2) of Regulation 2015/1589, to submit written observations in those national proceedings. None of the applicant’s arguments establish that the Commission intervened in a biased manner in order to favour one of the parties to the proceedings pending before the national court concerned.
88 In the third place, as stated in paragraphs 58 and 59 above, it is apparent from the observations, submitted by the Commission as amicus curiae in the national proceedings in question, that the Commission merely set out in an objective manner, first, the scope of the decisions referred to in paragraph 6 above, which it had adopted in 2010 and 2014, relating to the State aid granted to Parex banka, and, second, the legal consequences of any failure to comply with the commitments submitted by the Republic of Latvia. The fact that what the Commission set out coincides with the interests of the opposing party, to the detriment of the applicant, in the national proceedings in question, cannot be regarded as indicative of a lack of neutrality on the part of the Commission. Accordingly, none of the applicant’s arguments establish that, in those observations, the Commission did not set out, in a neutral manner, the scope and legal implications of those decisions, relating to the State aid granted to Parex banka in the context of the latter’s restructuring.
89 In those circumstances, the head of illegality alleging a sufficiently serious breach of the principles of impartiality and neutrality must be rejected.
90 Since the applicant has not established that the Commission acted unlawfully by submitting observations in the national proceedings in question as amicus curiae, the condition relating to the unlawfulness of the conduct alleged against the EU institution is not satisfied in the present case.
91 Since one of the three cumulative conditions for non-contractual liability to be incurred is not satisfied in the present case, the present action must be dismissed, without it being necessary to examine whether the two other conditions for the European Union to incur liability, within the meaning of the case-law cited in paragraph 22 above, are satisfied. Nor is it necessary to rule on the applicant’s request for a measure of inquiry aimed at asking the Court to order the Commission to produce certain documents.
Costs
92 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
93 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Council shall bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Rems Kargins to bear his own costs and to pay those incurred by the European Commission;
3. Orders the Council of the European Union to bear its own costs.
Marcoulli
Tomljenović
Valasidis
Delivered in open court in Luxembourg on 19 March 2025.
