Court of Justice (Third Chamber) 6 May 2021, C-551/19 P and C-552/19 P (ABLV Bank AS and Others v European Central Bank.)

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In joined appeals arising from the resolution procedure under Regulation (EU) No 806/2014, the Court of Justice (Third Chamber) held that the ECB's assessments that ABLV Bank AS and ABLV Bank Luxembourg SA were 'failing or likely to fail' (FOLTF assessments) within the meaning of Article 18(1)(a) of that Regulation constitute preparatory measures in a multi-stage administrative procedure and not challengeable acts for the purposes of Article 263 TFEU, as they do not produce binding legal effects capable of bringing about a distinct change in the applicants' legal position. The Court confirmed that the ECB's FOLTF assessment is not binding on the Single Resolution Board (SRB), which retains the power to assess all three conditions for the adoption of a resolution scheme and bears exclusive competence over the conditions of no reasonable alternative measures and public interest; judicial review of the ECB's assessment remains available in the context of an action for annulment of the SRB's final resolution decision under Article 86(2) of the Regulation. Both appeals were dismissed and the appellants were ordered to pay costs, while the Commission's request to substitute reasoning in the General Court's orders was rejected as inadmissible.AI