Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 17 February 2020 (regularisation of 16 April 2020) — BPC Lux 2 Sàrl and Others v Banco de Portugal and Others
(Case C-83/20)
Language of the case: Portuguese
Referring court
Supremo Tribunal Administrativo
Parties to the main proceedings
Applicants: BPC Lux 2 Sàrl, BPC UKI LP, Bennett Offshore Restructuring Fund Inc., Bennett Restructuring Fund LP, Queen Street Limited, BTG Pactual Global Emerging Markets and Macro Master Fund, L.P, BTG Pactual Absolute Return II Master Fund, L.P, CSS, LLC, Beltway Strategic Opportunities Fund L.P., EJF Debt Opportunities Master Fund, L.P, TP Lux HoldCo, S.a.r.l., VR Global Partners, L.P., CenturyLink, City of New York Group Trust, Dignity Health, GoldenTree Asset Management LUX S.a.r.l, GoldenTree High Yield Value Fund Offshore 110 Two Limited, San Bernardino County Employees Retirement Association, EJF DO Fund (Cayman), LP, Massa Insolvente da Espírito Santo Financial Group, S.A.
Defendants: Banco de Portugal, Banco Espírito Santo, S.A., Novo Banco, S.A.
Questions referred
Must EU law, in particular Article 17 of the [Charter of Fundamental Rights of the European Union] and Directive 2014/59/EU 1 of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, and in particular Articles 36, 73 and 74 of that directive, be interpreted as precluding national legislation such as that set out above, which was applied through a resolution action consisting in the formation of a bridge bank and the separation of assets, and which, in partially transposing that directive before the deadline for transposition:
did not provide for a fair, prudent and realistic valuation of the assets and liabilities of the credit institution under resolution to be carried out before the resolution action was adopted;
did not provide for potential compensation based on the valuation referred to in point (a) to be paid to the institution under resolution or, where appropriate, to the holders of shares or other titles of ownership and which, instead, merely provided for any remaining proceeds from the sale of the bridge bank to be returned to the original credit institution or its insolvency estate;
did not establish that the shareholders of the institution under resolution were entitled to receive an amount not less than the amount it is calculated they would have received if the institution under resolution had been completely wound up under normal insolvency proceedings, and established such a safeguard mechanism only for creditors whose claims had not been transferred; and
did not provide for a separate valuation from that referred to in point (a) to be carried out in order to determine whether shareholders and creditors would have received more favourable treatment if the credit institution under resolution had entered into normal insolvency proceedings?
In the light of the case-law of the Court of Justice set out in the judgment of 18 December 1997, Inter-Environnement Wallonie, [Case C-129/96, 2 which was subsequently confirmed by the Court], is national legislation such as that described in the present proceedings, which partially transposes Directive 2014/59/EU, liable seriously to compromise the result prescribed by the directive, particularly by Articles 36, 73 and 74 thereof, in the context of taking the resolution action?
____________
1 OJ 2014 L 173 p. 190.
2 EU:C:1997:628.