The Court of Justice alone has jurisdiction to determine whether the legality of the ECB’s decision opposing the acquisition by Fininvest and Mr Berlusconi of a qualifying holding in Banca Mediolanum is affected by any defects vitiating the preparatory acts by the Banca d’Italia.
The Court ruled that the ECB has exclusive competence to decide whether or not to authorise the proposed acquisition at the end of the procedure at issue, which is laid down in the context of the banking union’s single supervisory mechanism, for the effective and consistent functioning of which the ECB is responsible.
Consequently, the EU Courts alone have jurisdiction to determine, as an incidental matter, whether the legality of the ECB’s decision of 25 October 2016 is affected by any defects of the preparatory acts adopted by the Banca d’Italia. The legality of those acts cannot be reviewed by the national courts. It is irrelevant in that regard that an action such as the ‘azione di ottemperanza’ has been brought before a national court.