CJEU, 2nd chamber, September 3, 2026, No C-145/24 P

Judgment

1 By its appeal, BdM Banca SpA, formerly Banca Popolare di Bari SpA, asks the Court of Justice to set aside the judgment of the General Court oof the European Union of 20 December 2023, Banca Popolare di Bari v Commission (T‑415/21, ‘the judgment under appeal’, EU:T:2023:833), by which the General Court dismissed its action under Article 268 and the second paragraph of Article 340 TFEU, seeking compensation for the damage which it claims to have suffered as a result of the adoption of Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to Banca Tercas (Case SA.39451 (2015/C) (ex 2015/NN)) (OJ 2016 L 203, p. 1; ‘the Tercas decision’).

Legal context

The FEU Treaty

2 The second paragraph of Article 340 TFEU provides:

‘In the case of non-contractual liability, the [European] Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.’

The Statute of the Court of Justice of the European Union

3 Article 46 of the Statute of the Court of Justice of the European Union reads as follows:

‘Proceedings against the Union in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court of Justice or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Union. In the latter event the proceedings must be instituted within the period of two months provided for in Article 263 [TFEU]; the provisions of the second paragraph of Article 265 [TFEU] shall apply where appropriate.

…’

Background to the dispute

4 The background to the dispute is set out in paragraphs 2 to 18 of the judgment under appeal as follows:

‘2. On 30 April 2012, on a proposal by Banca d’Italia (Bank of Italy), which had identified irregularities within Banca Tercas (“Tercas”), the Italian Ministry of Economy and Finance decided to place Tercas under special administration.

3. In October 2013, after assessing various options, the special administrator, appointed by the Bank of Italy, entered into negotiations with the [appellant], which had expressed an interest in subscribing to a capital increase in Tercas, on condition that a due diligence inquiry into Tercas was first carried out and that the Fondo interbancario di tutela dei depositi (Interbank Deposit Protection Fund, Italy; “the FITD”) covered in full that bank’s negative equity.

4. On 28 October 2013, further to a request made by the special administrator of Tercas, the Executive Committee of the FITD decided to grant support measures in favour of Tercas, which were approved by the Bank of Italy.

…

6. On 30 May 2014, the Executive Committee and the Board of the FITD decided to take action for the benefit of Tercas.

7. On 7 July 2014, the Bank of Italy authorised the action to be taken by the FITD for the benefit of Tercas. That action consisted in three measures: first, a EUR 265 million contribution intended to cover Tercas’ negative equity, second, a guarantee of EUR 35 million intended to cover the credit risk associated with certain exposures of Tercas and, third, a guarantee of EUR 30 million intended to cover the costs arising from the tax treatment of the first measure.

8. The special administrator of Tercas, in agreement with the Bank of Italy, convened a general meeting of Tercas’ shareholders on 27 July 2014, in order for them to be able to take a decision on partly covering the losses discovered during the special administration and on a capital increase reserved for the [appellant]. That capital increase took place on the same day.

9. On 1 October 2014, Tercas was taken out of special administration and the [appellant] appointed the new bodies of that bank.

10. In December 2014, the [appellant] effected a capital increase, which included the issue of new shares. The capital increase served to reinforce the [appellant]’s capital ratios, which had been affected by the acquisition of Tercas and its subsidiary, Banca Caripe SpA …

11. In March 2015, the [appellant] subscribed to a new increase in Tercas’ capital, in order to cope with losses recorded in the fourth quarter of 2014, to cover the restructuring costs in 2015 and 2016 and to improve Tercas’ capital ratios.

12. By letter of 27 February 2015, the European Commission had informed the Italian Republic of its decision to initiate the procedure laid down in Article 108(2) TFEU in respect of the measures adopted by the FITD for the benefit of Tercas.

13. On 23 December 2015, the Commission adopted the Tercas decision.

14. In that decision, the Commission concluded that the measures, authorised by the Bank of Italy on 7 July 2014 and adopted by the FITD for the benefit of Tercas, the entirety of [the] capital [of] which had been held by the [appellant] since 1 October 2014, constituted State aid incompatible with the internal market that had to be recovered from its beneficiary by the Italian Republic.

15. On 4 February 2016, the FITD carried out a “voluntary” intervention for the benefit of Tercas and, on 14 July 2016, the [appellant] acquired Tercas.

16. By judgment of the General Court of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), upheld by the Court of Justice in its judgment of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154), the Tercas decision was annulled.

17. By letter of 28 April 2021, the [appellant] applied to the Commission, under Article 46 of the Statute of the Court of Justice of the European Union, for compensation for the damage it had allegedly suffered as a result of the adoption of the Tercas decision, requesting the payment of compensation in the sum of EUR 228 million.

18. On 11 May 2021, the Commission rejected that request.’

The action before the General Court and the judgment under appeal

5 By application lodged at the Registry of the General Court on 10 July 2021, the appellant brought an action seeking, on the basis of Article 268 and the second paragraph of Article 340 TFEU, compensation for the damage which it claimed to have suffered as a result of the Tercas decision.

6 It claimed that the General Court should:

– order the European Union, represented by the Commission, to pay it compensation in the sum of EUR 280 million or, in the alternative, EUR 203 million, in respect of the material damage it had allegedly suffered, together with appropriate compensation in respect of the non-material damage it had allegedly suffered, as a result of the adoption of the Tercas decision;

– order the Commission to pay the costs.

7 By the judgment under appeal, the General Court dismissed the appellant’s action in its entirety, holding it to be in part inadmissible and in part unfounded.

8 As regards admissibility, the General Court held, in essence, that that action was time-barred and, therefore, inadmissible in so far as it sought compensation for the alleged damage relating to the reduction in staff numbers and in the fee notes for legal assistance, with the exception of that concerning the commencement of legal proceedings relating to the Tercas decision before the General Court and the Court of Justice.

9 More specifically, as regards the possible damage associated with the reduction in staff numbers, in paragraph 61 of the judgment under appeal, the General Court held that the damage resulted from the original incentive plan for the departure of employees, which had been put in place on 30 December 2015. Thus, according to the General Court, it was at that precise time that the alleged damage materialised and, consequently, that the five-year limitation period regarding compensation of that damage had expired when the appellant made its prior application to the Commission.

10 As regards the other alleged damage, the General Court dismissed the action as unfounded on the ground that the conditions for the European Union to incur non-contractual liability relating to the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, on the one hand, and the existence of a causal link between the conduct complained of and the damage pleaded, on the other, were not satisfied.

11 More specifically, concerning, first, the condition relating to the existence of a sufficiently serious breach, in paragraph 120 of the judgment under appeal, the General Court held that the Commission was required to apply the concept of ‘State aid’ within the meaning of Article 107(1) TFEU in a particularly complex legal and factual context, one where the aid measures were granted by a private entity, and had accordingly assessed the circumstances and information which supported the inference that the measure could be imputed to the State, the factual and legal context of the national measures addressed in the Tercas decision, the involvement of State representatives at the various stages of the intervention and the public mandate with which the FITD had been entrusted.

12 In paragraph 121 of the judgment under appeal, the General Court observed that the fact that, in complex legal and factual circumstances, the Commission had not proved to the requisite legal standard, in the Tercas decision, the involvement of the Italian public authorities in the adoption of the measure at issue or, consequently, that that measure could be imputed to the State, for the purposes of Article 107(1) TFEU, was not sufficient to establish the existence of a manifest and grave disregard for the limits on the Commission’s discretion. In paragraph 122 of that judgment, the General Court considered that the Commission’s unlawful conduct in the present case was not alien to the normal, careful and diligent conduct of an institution entrusted with the task of overseeing the application of competition rules, within the meaning of the Court’s case-law.

13 Second, as regards the condition relating to the existence of a causal link between the conduct alleged against the Commission and the damage pleaded, in paragraphs 160 and 161 of the judgment under appeal, the General Court held, in essence, that the appellant had not established the existence of such a causal link. In particular, it considered that it was apparent from an overall assessment of the relevant evidence that, even if the Tercas decision played a part in the progressive loss of confidence of the appellant’s customers, that loss was also caused by other factors, and so that decision cannot be regarded as the decisive and direct cause of the alleged damage.

Forms of order sought by the parties to the appeal

14 By its appeal, the appellant claims that the Court of Justice should:

– set aside the judgment under appeal;

– give final judgment as to the substance, in accordance with Article 61 of the Statute of the Court of Justice of the European Union;

– in the alternative, refer the case back to the General Court for it to rule on the action; and

– order the Commission to pay the costs of the proceedings before the General Court and the Court of Justice.

15 The Commission contends that the Court of Justice should:

– dismiss the appeal; and

– order the appellant to bear all the costs.

The appeal

16 In support of its appeal, the appellant raises three grounds of appeal, alleging, first, infringement of the second sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union, in so far as the General Court held that the action was inadmissible to the extent that it concerns damage relating to the reduction in staff numbers, second, infringement of the second paragraph of Article 340 TFEU, in so far as the General Court did not find that the Commission’s unlawful conduct constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals, and, third, infringement of the second paragraph of Article 340 TFEU and of Article 91(e) and Article 96 of the Rules of Procedure of the General Court, in so far as the General Court found that there was no causal link between the Commission’s unlawful conduct and the damage allegedly suffered by the appellant.

17 The Commission raises, as a preliminary point, that the appeal is inadmissible in its entirety. However, its line of argument in that regard is developed only in its observations on the three grounds put forward in support of the appeal. It is therefore necessary to examine the specific grounds of inadmissibility thus relied on in the assessment of the grounds of appeal to which they relate.

The first ground of appeal

Arguments of the parties

18 By its first ground of appeal, the appellant complains that the General Court infringed the second sentence of the first paragraph of Article 46 of the Statute of the Court of Justice of the European Union by holding that the action at first instance was inadmissible, in so far as it concerned damage relating to the reduction in staff numbers.

19 According to the appellant, the General Court was wrong to hold, in paragraphs 61 and 68 of the judgment under appeal, that the action for damages relating to the possible damage linked to the reduction in staff numbers was time-barred on the ground that that damage was instantaneous in nature. The appellant criticises, in particular, the General Court’s findings that the damage caused by that reduction resulted from the incentive plan put in place on 30 December 2015 and materialised precisely on that date. Although it is true that, on 30 December 2015, the appellant concluded an agreement with trade unions concerning that incentive plan, account should nevertheless be taken of the fact that the burden relating to that agreement was actually borne over the following years, as the disbursements linked to the progressive implementation of the incentive plan were made, and, thus, to a large extent, after 28 April 2016. Therefore, the alleged damage did not occur instantaneously, but arose gradually, alongside the actual reduction in the appellant’s staff numbers, with the result that that damage was continuous in nature.

20 The Commission contends that the first ground of appeal is inadmissible to the extent the appellant seeks, by that ground, to obtain a new assessment of the evidence and facts by the Court of Justice, without, however, alleging a manifest distortion of that evidence or those facts. In any event, according to the Commission, that ground of appeal is unfounded.

Findings of the Court of Justice

21 In the first place, as regards the admissibility of the first ground of appeal, it should be noted that, by that ground of appeal, the appellant disputes, in essence, the legal classification of the facts made by the General Court, to the extent that it classified the alleged damage not as ‘continuous’, but as ‘instantaneous’. It results from the case-law of the Court of Justice that the classification for legal purposes of an act by the General Court is a question of law which may be raised in an appeal (judgment of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 41 and the case-law cited).

22 It follows that the first ground of appeal is admissible.

23 In the second place, as regards the merits of that ground of appeal, it should be recalled that, under Article 46 of the Statute of the Court of Justice of the European Union, which applies to proceedings before the General Court by virtue of the first paragraph of Article 53 of that Statute, actions against the European Union in matters arising from non-contractual liability are time-barred after a period of five years from the occurrence of the event giving rise thereto.

24 In accordance with the case-law of the Court of Justice, that period begins to run once the requirements governing the obligation to provide compensation for damage are satisfied and, in particular, once the damage to be made good has materialised (see judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 34 and the case-law cited).

25 In that regard, in paragraph 61 of the judgment under appeal, the General Court noted that possible damage associated with the reduction in staff numbers resulted from the incentive plan which was put in place on 30 December 2015, such that it was at that precise time that the alleged damage materialised. It follows, according to the General Court, that the five-year limitation period had expired when the appellant made its prior application to the Commission. Even though the General Court does not expressly rule on the nature of that damage, it is apparent from that paragraph of the judgment under appeal that, by referring to a specific point in time at which it occurred, it attributes an instantaneous nature to that damage.

26 In so far as the appellant submits, contrary to what follows from paragraph 61 of the judgment under appeal, that the damage resulting from the reduction in staff numbers was continuous in nature because it resulted from the successive disbursements linked to the staff departures, it should be noted that, according to the case-law of the Court of Justice, damage is considered to be ongoing in nature due to the fact that the amount of the alleged damage increases in proportion to the number of days which have elapsed (judgment of 28 February 2013, Inalca and Cremonini v Commission, C‑460/09 P, EU:C:2013:111, paragraph 80 and the case-law cited).

27 In the present case, as the Advocate General observed in point 14 of his Opinion, while it is true that, on the date the incentive plan was adopted, the appellant was not in a position to quantify the exact amount of the damage, which could vary according to the success or failure of that plan, it could, however, at that date, assess the maximum amount of the alleged damage and allocate the resources needed to address that eventuality. Moreover, as the appellant submitted before the Court of Justice, the amount of the charge to be borne was set aside in advance by the appellant and entered in its balance sheet on 31 December 2015.

28 Thus, from 30 December 2015, the date on which the incentive plan was put in place, the maximum amount likely to be committed under that plan was known and was not intended to increase over time, which precludes the damage in question from being classified as ‘continuous’.

29 Accordingly, the General Court did not err in law in holding that the alleged damage relating to the reduction in staff numbers had materialised at the precise time when the incentive plan was put in place and that the claim for compensation relating to that damage was already time-barred when the appellant made its prior application to the Commission.

30 Consequently, the first ground of appeal must be rejected as unfounded.

The second ground of appeal

Arguments of the parties

31 By its second ground of appeal, the appellant complains that the General Court infringed the second paragraph of Article 340 TFEU by finding that the Commission’s unlawful conduct in adopting the Tercas decision did not constitute a ‘sufficiently serious breach’ of a rule of law intended to confer rights on individuals.

32 In that regard, it submits, first, that the General Court failed to draw the appropriate conclusions from the judgment of the General Court of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), upheld on appeal by the judgment of the Court of Justice of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154). In that first judgment, the General Court clearly stated that the Commission had made manifest errors of assessment relating to fundamental factual and legal circumstances, which was confirmed without reservation by the Court of Justice in that second judgment. According to the appellant, those clear assertions, which can no longer be re-examined on appeal, are sufficient to demonstrate the existence of such a sufficiently serious breach.

33 More specifically, the appellant submits that the General Court did not correctly apply the test relating to the existence of a manifest and serious breach, as defined in the case-law of the Court of Justice, according to which, where an EU institution has reduced discretion or no discretion in carrying out its activities, a mere infringement of the rule is sufficient to establish the non-contractual liability of that institution.

34 The appellant submits that, in the present case, the Commission had no discretion to assess whether the measures adopted by the FITD for the benefit of Tercas constituted State aid within the meaning of Article 107(1) TFEU, as it was a question of applying a legal concept of an objective nature. The General Court should therefore have found and declared that the Commission had committed a sufficiently serious breach of that provision.

35 Second, according to the appellant, even if it were to be accepted that the Commission had a margin of discretion on account of the alleged legal and factual complexity of the case, in the light of the manifest and serious infringements found in the judgments of the General Court and of the Court of Justice referred to in paragraph 32 above, the General Court could not, in the present case, have taken such complexity into consideration for the purpose of assessing the existence of a sufficiently serious breach in the context of an action for non-contractual liability. In any event, it should have ruled out that complexity, given that it was expressly disregarded in those judgments.

36 The Commission contends that the second ground of appeal is inadmissible in so far as the appellant, first, failed to identify precisely the points in the grounds of the judgment under appeal which are contested and, second, merely repeated arguments which were already rejected by the General Court, thereby seeking to obtain a mere re-examination of the facts, which falls outside the jurisdiction of the Court of Justice on appeal. Moreover, the assessment of the degree of complexity of the case at issue is a question of fact open to review by the Court only in the event of distortion, which has not, however, been relied on by the appellant.

37 The Commission contends, in the alternative, that that ground of appeal is unfounded.

Findings of the Court of Justice

38 In the first place, as regards the admissibility of the second ground of appeal, in so far as the Commission criticises the appellant, first, for failing to identify precisely which paragraphs of the judgment under appeal are being challenged, it must be recalled that, according to the case-law of the Court, it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and from Article 168(1)(d) and Article 169(2), of the Rules of Procedure of the Court of Justice, that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 46 and the case-law cited).

39 In the present case, it is clear from the part of the appeal relating to the second ground of appeal and from the title thereof that, by that part of the appeal, the appellant seeks to challenge, in its entirety, the General Court’s reasoning concerning the concept of ‘sufficiently serious breach’, set out in paragraphs 114 to 125 of the judgment under appeal.

40 As regards, second, the Commission’s assertion that, in the second ground of appeal, the appellant merely reiterated arguments already rejected by the General Court, it should be borne in mind that, admittedly, an appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by that Court, does not satisfy the requirements to state reasons under the provisions referred to in paragraph 38 above. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, a matter which falls outside the jurisdiction of the Court of Justice (judgment of 20 September 2016, Mallis and Others v Commission and ECB, C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraph 35 and the case-law cited).

41 However, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. If an appellant could not thus base his or her appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 20 September 2016, Mallis and Others v Commission and ECB, C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraph 36 and the case-law cited).

42 In the present case, the appellant seeks, by its second ground of appeal, to call into question the General Court’s interpretation and application of the concept of ‘sufficiently serious breach’, which, in accordance with the case-law referred to in the preceding paragraph, may be subject to review by the Court of Justice on appeal.

43 As regards, third, the Commission’s assertion that the assessment of the degree of complexity of the case at issue constitutes a question of fact which falls outside the jurisdiction of the Court of Justice on appeal, except where the facts have been distorted, it must be stated that, according to the case-law of the Court of Justice, where the General Court has found or appraised the facts, the Court of Justice has jurisdiction to carry out a review, provided that the General Court has defined their legal nature and determined the legal consequences. The jurisdiction of the Court of Justice to review extends, inter alia, to the question whether the General Court has taken the right legal criteria as the basis for its appraisal of the facts (judgment of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 72 and the case-law cited).

44 In the present case, contrary to what the Commission claims, the appellant challenges the legal criteria applied by the General Court, in particular the criterion relating to the degree of factual and legal complexity of the case, which the General Court derived from the case-law cited in paragraphs 106, 110 and 113 of the judgment under appeal, in order to determine whether there was a ‘sufficiently serious breach’, which is a question of law subject to review by the Court of Justice on appeal.

45 Consequently, the second ground of appeal is admissible.

46 In the second place, concerning the merits of the second ground of appeal, it must be noted first of all that, according to the Court’s case-law, 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 the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (judgment of 5 March 2024, Kočner v Europol C‑755/21 P, EU:C:2024:202, paragraph 117 and the case-law cited).

47 As regards the requirement of a sufficiently serious breach of a rule of law intended to confer rights on individuals, which is the subject of the present ground of appeal, the General Court, in the judgment under appeal, held that, by failing to apply correctly in the Tercas decision, the concept of ‘intervention by the State or through State resources’ for the purposes of Article 107(1) TFEU, the Commission had not committed a sufficiently serious breach of that provision.

48 In paragraphs 120 and 121 of the judgment under appeal, the General Court found more specifically that, in view of the complex legal and factual context in which the State aid measures at issue had been granted by a private entity, the fact that the Commission had not proved to the requisite legal standard, in the Tercas decision, the involvement of the Italian public authorities in the adoption of the measure at issue or, consequently, that that measure could be imputed to the State for the purposes of Article 107(1) TFEU could not constitute a manifest and grave disregard for the limits on the Commission’s discretion.

49 In that regard, concerning, first, the appellant’s argument that the General Court did not correctly apply the test relating to the ‘manifest and serious breach’, as defined in the case-law of the Court of Justice, it should be recalled that, according to that case-law, the existence of a sufficiently serious breach of EU law must be assessed on the basis of each type of situation. Thus, a breach of EU law is sufficiently serious where, in the exercise of its legislative power, over which EU law affords it a margin of discretion, an EU institution has manifestly and gravely disregarded the limits on the exercise of that power. Conversely, where that institution was not faced with legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see, to that effect, judgments of 19 April 2007, Holcim (Deutschland) v Commission C‑282/05 P, EU:C:2007:226, paragraph 47 and the case-law cited, and of 5 March 2024, Kočner v Europol C‑755/21 P, EU:C:2024:202, paragraph 126 and the case-law cited).

50 In the present case, it was held, in the judgment of the General Court of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167, paragraphs 70 and 87 to 90) and, on appeal, in the judgment of the Court of Justice of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154, paragraphs 63 and 67), that the unlawfulness of the Tercas decision resulted, in essence, from two conceptual errors. The first of those errors alleges confusion between the condition relating to the imputability of a measure to the State and that relating to State resources, and the second lies in the assessment of the condition of the aid’s imputability to the State, even though it was granted by a private entity, by means of the same test as that which is applied when aid is granted by a public undertaking.

51 According to settled case-law, ‘State aid’, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the EU Courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 87 and the case-law cited).

52 Consequently, the Commission has only considerably reduced, or even no, discretion as regards the classification of a measure as ‘State aid’ within the meaning of Article 107(1) TFEU, with the result that the mere infringement of that provision may be sufficient to establish the existence of a sufficiently serious breach.

53 As regards, second, the appellant’s argument that the General Court should not have relied on the factual and legal complexity of the case in order to rule out the existence of such a sufficiently serious breach, it follows from the case-law of the Court of Justice, correctly recalled by the General Court in paragraph 113 of the judgment under appeal, that the system of rules which the Court of Justice has worked out in relation to the non‑contractual liability of the Community takes into account, where appropriate, the complexity of the situations to be regulated (judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 161 and the case-law cited), even where the rule of law infringed leaves no discretion to the authority concerned.

54 In that regard, it is apparent from the case-law of the Court of Justice that, although the measure of discretion left by the rule of law infringed to the EU authority is a relevant factor which must be taken into consideration in all cases in order to determine whether that authority committed a sufficiently serious breach, the absence of discretion does not necessarily mean that the breach of that rule of law is sufficiently serious (see, to that effect, judgment of 11 January 2024, Dyson and Others v Commission, C‑122/22 P, EU:C:2024:11, paragraph 52).

55 Depending on the circumstances of each case, other factors may be taken into account, having regard to the context in which the infringement was found to have been committed. Accordingly, a breach of a rule of law that leaves no discretion to the authority concerned may not appear, in the light of those circumstances, to be manifest and therefore sufficiently serious, in particular if it results from an error of law that may be excused by having regard to the complexity of the situation to be resolved and the difficulties applying or interpreting the legislation containing that rule (judgment of 11 January 2024, Dyson and Others v Commission, C‑122/22 P, EU:C:2024:11, paragraph 53).

56 Such difficulties of interpretation and application may be such as to explain the conduct of an institution where it turns out that it acted as an ordinarily careful and diligent administration would have done in similar circumstances (judgment of 22 September 2022, IMG v Commission, C‑619/20 P and C‑620/20 P, EU:C:2022:722, paragraph 192).

57 In the present case, as has already been noted in paragraph 50 above, in the judgment of the General Court of 19 March 2019, Italy and Others v Commission (T‑98/16, T‑196/16 and T‑198/16, EU:T:2019:167), which was confirmed by the judgment of the Court of Justice of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154), the General Court found that, in adopting the Tercas decision, the Commission made two conceptual errors relating to the interpretation and application of the concept of ‘State aid’, which concerned the basic criteria relating to the State origin of the aid measure at issue.

58 Consequently, as the Advocate General observed in point 27 of his Opinion, in the Tercas decision the Commission applied an incorrect test in order to classify the aid measures at issue. Contrary to what the General Court held in paragraphs 120 and 121 of the judgment under appeal, by making such conceptual errors, the Commission infringed Article 107(1) TFEU in a sufficiently serious manner, irrespective of any difficulties in applying the concept of ‘State aid’ within the meaning of that provision.

59 Consequently, the General Court erred in law in finding that the Commission had not committed a sufficiently serious breach of Article 107(1) TFEU. It follows that the second ground of appeal must be upheld.

The third ground of appeal

60 As the second ground of appeal has been upheld, it is necessary to examine the third ground of appeal. Although the Court of Justice found, in the examination of the second ground of appeal, that the Tercas decision had entailed a sufficiently serious breach of Article 107(1) TFEU, it is necessary, having regard to the cumulative nature of the three conditions for the European Union to incur non-contractual liability referred to in paragraph 46 above, to examine whether there is a causal link between that infringement of EU law and the damage allegedly suffered by the appellant.

61 In that regard, before the General Court, the appellant argued, in essence, that the Tercas decision caused customers’ confidence to wane, on account of uncertainty as to its ability to complete the merger by absorption of Tercas, which caused it to lose deposits and customers (loss of profit) and caused damage to its reputation (non-material damage), and which generated expenditure on measures to mitigate the adverse effects of the Tercas decision (actual damage).

62 The third ground of appeal is divided into four parts.

The first part

– Arguments of the parties

63 By the first part of the third ground of appeal, the appellant submits, as regards the damage resulting from the loss of customers, first, that the General Court, by ruling out, in paragraph 137 of the judgment under appeal, the existence of a causal link on the ground that the appellant drew no distinction between its own customers and those of Tercas, infringed the second paragraph of Article 340 TFEU. According to the appellant, that lack of distinction is irrelevant in the present case because it was not possible to distinguish, following the merger of Tercas with the appellant, between the customers of each of those banks. In any event, the Tercas decision caused the loss of confidence of the appellant’s customers, on account of a high degree of uncertainty surrounding its estimated ability to complete the complex process of integrating Tercas and, more generally, to achieve its strategic objectives in sound economic and financial conditions.

64 Second, the appellant submits that, in paragraphs 139 and 141 of the judgment under appeal, the General Court misapplied the second paragraph of Article 340 TFEU in so far as it held that the voluntary intervention by the FITD in favour of Tercas was a circumstance such as to remove the causal link between the loss of customers suffered by the appellant and the adoption of the Tercas decision. According to the appellant, the Tercas decision gave rise to an uncertain situation, thus triggering a phenomenon of ‘depositor runs’, which, in the present case, resulted in the loss of customers and deposits. It adds that the subsequent voluntary intervention by the FITD did not make it possible to remedy such a loss of confidence.

65 The Commission replies that the first part of the third ground of appeal is manifestly inadmissible and, in any event, unfounded.

– Findings of the Court

66 So far as the non-contractual liability of the European Union is concerned, the question as to whether there is a causal link between the wrongful act and the damage, a condition for that liability to be incurred, is a question of law which, as a consequence, is subject to review by the Court of Justice (judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 192).

67 However, as the Advocate General observed in point 42 of his Opinion, the factual assessment of the causal link carried out by the General Court falls outside the jurisdiction of the Court of Justice on appeal, except where the facts or evidence has been distorted (see, to that effect, judgment of 19 October 2017, Agriconsulting Europe v Commission, C‑198/16 P, EU:C:2017:784, paragraph 22).

68 In the present case, it should be noted that, by the first part of the third ground of appeal, the appellant disputes the factual assessments made in the judgment under appeal relating to its arguments seeking to demonstrate that the Tercas decision led to a loss of confidence on the part of its customers and, consequently, to the loss of customers and deposits. By challenging those findings of the General Court, the appellant has neither alleged nor, a fortiori, demonstrated, any distortion of the facts or evidence.

69 As regards, more specifically, the appellant’s argument that, in order to rule out the existence of a causal link between the Commission’s conduct and the loss of customers, the General Court held, in paragraph 137 of the judgment under appeal, that the appellant drew no distinction between its own customers and those of Tercas, it must be held, as the Advocate General observed in point 36 of his Opinion, that, contrary to what the appellant claims, the General Court did not simply find that the appellant had drawn no distinction between its own customers and those of Tercas. It held that the appellant had also failed to put forward specific arguments as to whether Tercas’ loss of customers and direct deposits could be attributed to the Tercas decision.

70 Consequently, the first part of the third ground of appeal must be rejected as in part inadmissible and in part unfounded.

The second part

– Arguments of the parties

71 By the second part of the third ground of appeal, the appellant complains that the General Court wrongly referred, in paragraphs 150 and 151 of the judgment under appeal, to the judgment of 30 June 2021, Fondazione Cassa di Risparmio di Pesaro and Others v Commission (T‑635/19, EU:T:2021:394), without taking into account the differences between the case which gave rise to that judgment and the present case. It submits, in that regard, that in that first case, the Commission confined itself to examining whether the intervention of the national authorities was compatible with State aid rules, without, however, adopting a decision, while exclusively exerting unlawful pressure on the Italian authorities. The position taken by the Commission did not therefore concern a specific measure, unlike in the present case, in which the Commission adopted the Tercas decision, which is binding on the parties concerned.

72 The Commission contends that that part of the third ground of appeal is not only inadmissible, but also manifestly unfounded, in that it distorts the content of the judgment under appeal. It is, in any event, ineffective.

– Findings of the Court

73 It should be noted that, in the judgment under appeal, the General Court referred to its judgment of 30 June 2021, Fondazione Cassa di Risparmio di Pesaro and Others v Commission (T‑635/19, EU:T:2021:394), in order to adopt a position on the line of argument put forward by the appellant at first instance. Thus, in paragraphs 150 to 152 of the judgment under appeal, the General Court, after analysing that judgment of 30 June 2021, rejected, in essence, the appellant’s argument that that judgment of 30 June 2021 confirmed the existence, in the present case, of a direct causal link and concluded that it was not sufficient to establish the existence of such a link. Furthermore, contrary to what the appellant claims, the General Court expressly acknowledged, in paragraph 152 of the judgment under appeal, that the case which was the subject of that judgment of 30 June 2021 and the present case, were different.

74 Accordingly, the General Court’s findings relating to the judgment of 30 June 2021, Fondazione Cassa di Risparmio di Pesaro and Others v Commission (T‑635/19, EU:T:2021:394), do not form the basis of its decision, in so far as the General Court relied on the evidence adduced before it and not on that judgment in order to rule out, in the present case, the existence of a causal link.

75 It follows from the case-law of the Court of Justice that a ground of appeal directed against grounds of a judgment under appeal which have no bearing on the operative part of that judgment is ineffective and must therefore be rejected (see, to that effect, judgments of 18 March 1993, Parliament v Frederiksen, C‑35/92 P, EU:C:1993:104, paragraph 31, and of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, EU:C:2023:340, paragraph 80).

76 Consequently, the second part of the third ground of appeal must be rejected as ineffective.

The third part

– Arguments of the parties

77 By the third part of the third ground of appeal, the appellant complains that the General Court infringed the second paragraph of Article 340 TFEU in so far as it stated that other factors, in addition to the Tercas decision, had contributed to causing the damage allegedly suffered by the appellant, and thus ruled out the existence of a causal link between that damage and the Commission’s conduct, consisting in the adoption of that decision.

78 In the first place, the appellant disputes that the circumstances set out in paragraphs 144 to 149 of the judgment under appeal are such as to break that causal link.

79 First, the appellant claims that the losses recorded in its balance sheet as at 31 December 2015 arose in a context in which the Tercas decision had already severely damaged its reputation. In any event, on the basis of the technical reports of its advisers, the appellant took account of the impact of that factor in the quantification of the damage pleaded, considering only a 50% share of the loss of customers and deposits recorded between June and December 2016 to be directly attributable to the Tercas decision.

80 Second, the fact that the appellant’s management was the subject of administrative penalties is not relevant in the present case, in so far as those penalties were imposed only between September and November 2018, that is to say, well after the damage pleaded occurred. Similarly, where it concerns the involvement of the appellant’s management in criminal proceedings, the Commission itself acknowledges that those investigations were initiated after that damage materialised, in 2017, 2020 and 2021.

81 Third, the appellant claims, in essence, that Tercas’ previous failure cannot have been a decisive cause of the damage pleaded, given that that fact had been known for several months before the adoption of the Tercas decision and that it was precisely the reason why the process of Tercas’ integration within the appellant had been preceded, since 2014, not only by full coverage of Tercas’ financial deficit by the FITD, but also by additional measures to consolidate the own funds of Tercas and the appellant.

82 Fourth, the appellant submits that the costs generated by the measures mitigating the negative effects of the Tercas decision are manifestly directly attributable to that decision, as the appellant incurred precisely those costs with a view to reducing, as far as possible, the negative effects of that decision.

83 In the second place, the appellant maintains that the existence of other events which may have contributed to the damage pleaded is not, in any event, capable of breaking the causal link between the Commission’s conduct, consisting in the adoption of the Tercas decision, and that damage. Indeed, the presence of other causal factors could only affect the calculation of the compensation, which would be reduced by the Court, including on an equitable basis.

84 The Commission contends that the third part of the third ground of appeal must be rejected as manifestly inadmissible and, in any event, unfounded.

– Findings of the Court

85 In the first place, as regards the appellant’s arguments by which it disputes that the circumstances set out in paragraphs 144 to 149 of the judgment under appeal are such as to break the causal link between the Tercas decision and the damage suffered, it should be noted that, according to the case-law referred to in paragraph 67 above, the factual assessment of the causal link carried out by the General Court falls outside the jurisdiction of the Court of Justice on appeal, except where the facts or evidence have been distorted.

86 In so far as the appellant has neither claimed nor, a fortiori, demonstrated such a distortion, those arguments must be rejected as manifestly inadmissible.

87 In the second place, as regards the appellant’s argument that the presence of other competing causal factors is not capable of breaking the causal link between the Tercas decision and the damage which it claims to have suffered, but may affect only the calculation of the compensation, it must be held that such an argument raises a question of law which may be subject to review by the Court of Justice on appeal.

88 By that argument, the appellant asks the Court of Justice to rule on whether the General Court applied correct criteria in order to establish the existence of a causal link between the event giving rise to the damage and the damage, where the that damage may have been caused by other competing causal factors and, more specifically, concerning whether, as the appellant claims, the effect of potential concomitant causes is necessarily limited to quantifying the damage or whether it may, as the case may be, affect the very existence of such a causal link.

89 In that regard, it follows from the case-law of the Court of Justice that the condition relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage (judgment of 27 April 2023, Fondazione Cassa di Risparmio di Pesaro and Others v Commission, C‑549/21 P, EU:C:2023:340, paragraph 114 and the case-law cited).

90 More specifically, the damage must flow sufficiently directly from the unlawful conduct (judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 135).

91 It thus appears that, even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be too remote because of other factors, such as responsibility resting on third parties or, as the case may be, on the applicants (see, to that effect, judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 59).

92 It follows, as the Advocate General also observed in point 44 of his Opinion, that the effect of potential concomitant causes is not limited to the quantification of the damage, but may affect the very existence of a causal link between the acts attributable to an institution and the damage.

93 Therefore, in the present case, in order to establish the existence of a direct causal link between the Tercas decision and the alleged damage, the General Court was right to hold, in particular in paragraphs 132, 134 and 143 of the judgment under appeal, that it is not for the appellant to demonstrate that that decision may have contributed to causing that damage, but to prove that it was the decisive cause of that damage.

94 It follows that the General Court did not err in law in taking into account the existence of other factors which may have contributed to causing the alleged damage in the context of its assessment of the causal link between the Tercas decision and that damage.

95 Consequently, the third part of the third ground of appeal must be rejected as in part inadmissible and in part unfounded.

The fourth part

– Arguments of the parties

96 By the fourth part of the third ground of appeal, the appellant criticises the General Court for having held that two technical reports submitted by the appellant and drawn up, one by a consultancy firm and the other by a university professor, are unreliable, on the ground that they are based exclusively on documents and accounting information provided by the appellant itself. Furthermore, it claims that, if it had considered that the documents produced by the appellant were insufficient because of their unilateral nature, the General Court could have appointed, on the basis of Article 91(e) and Article 96 of the Rules of Procedure of the General Court, a judicial expert to carry out the necessary assessments on the basis of the evidence provided by both parties.

97 The Commission submits that that part is inadmissible and, in any event, in so far as the appellant disputes the General Court’s failure to appoint an expert, manifestly unfounded.

– Findings of the Court

98 As regards, first, the appellant’s argument that the General Court stated that the technical reports submitted by the appellant were unreliable, it should be noted, as the Advocate General observed in point 50 of his Opinion, that the General Court did not merely dispute the reliability of those reports as such. Indeed, after analysing them, in paragraphs 156 and 158 of the judgment under appeal, the General Court found, in paragraph 159 of that judgment, that those reports did not suffice, as such, to prove that the alleged damage was a direct consequence of the conduct of the Commission.

99 In that regard, it must be recalled that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (judgment of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 163).

100 Thus, it must be held that, by the argument referred to in paragraph 98 above, the appellant merely challenges the General Court’s assessment of the facts, without, however, demonstrating or even pleading the existence of a distortion of the facts or evidence, with the result that that argument is manifestly inadmissible.

101 Second, it is also necessary to reject as unfounded the appellant’s argument that the General Court could have appointed a judicial expert to carry out the necessary assessments on the basis of the information provided by both parties, because, in accordance with the case-law cited in paragraph 99 of the present judgment, the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it.

102 Consequently, the fourth part of the third ground of appeal must be rejected as in part inadmissible and in part unfounded.

103 In those circumstances, the third ground of appeal must be rejected.

104 In the light of the foregoing considerations, the judgment under appeal must be set aside in so far as the General Court dismissed the action on the ground that the Commission had not committed a sufficiently serious breach of Article 107(1) TFEU. The appeal must be dismissed as to the remainder.

The action before the General Court

105 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, after setting aside a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, itself give final judgment in the matter.

106 Since the state of the proceedings so permits, it is necessary to examine whether the European Union incurs non-contractual liability, in the light of the conditions for that liability, as set out in paragraph 46 above.

107 In that regard, it is apparent from paragraphs 59 to 102 above that the General Court did not err in law in holding, in paragraph 161 of the judgment under appeal, that the appellant had not established the existence of a causal link between the Commission’s alleged unlawful conduct and the alleged damage.

108 As the existence of such a causal link is one of the cumulative conditions which must be satisfied in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU, that liability cannot be incurred.

109 Consequently, the action must be dismissed as unfounded.

Costs

110 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.

111 Under Article 138(1) thereof, applicable to appeal proceedings by virtue of Article 184(1), the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first sentence of Article 138(3) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

112 In the present case, given that the judgment under appeal has been set aside in part but that the claim for compensation has been rejected, the appellant and the Commission are to be ordered to bear their own costs in relation to both the proceedings at first instance and the appeal proceedings.

On those grounds, the Court (Second Chamber) hereby:

1. Sets aside the judgment of the General Court of the European Union of 20 December 2023,Banca Popolare di BarivCommission(T‑415/21, EU:T:2023:833), in so far as it finds that BdM Banca SpA has not established that the European Commission committed a sufficiently serious breach of Article 107(1) TFEU;

2. Dismisses the appeal as to the remainder;

3. Dismisses the action of BdM Banca SpA, under Article 268 TFEU, seeking compensation for the damage which it claims to have suffered as a result of the adoption of Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid (Case SA.39451 (2015/C) (ex 2015/NN)) granted by Italy to Banca Tercas;

4. Orders BdM Banca SpA and the European Commission each to pay their own costs relating to both the proceedings at first instance and the appeal proceedings.