Action brought on 20 September 2013 – United Kingdom of Great Britain and Northern Ireland v European Parliament, Council of the European Union

(Case C-507/13)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: E. Jenkinson, S. Behzadi-Spencer, agents and K. Beal QC)

Defendants: European Parliament, Council of the European Union

The applicant claims that the Court should:

annul Article 94(1)(g), Article 94(2) and/or Articles 162(1) and (3) of the CRD IV Directive¹ ;

annul Articles 450(1)(d), (i) and/or (j) and/or 521(2) of the CR Regulation² ;

order that the European Parliament and the Council of the European Union to pay the costs of these proceedings.

Pleas in law and main arguments

The United Kingdom (‘UK’) seeks the annulment of a limited number of provisions of certain legislative acts of the European Parliament and the Council of the European Union, pursuant to Article 263 of the Treaty on the Functioning of the European Union (‘TFEU’). The application for annulment concerns the “CRD-IV Package”, which entered into force on 17 July 2013. The package consists in a new Capital Requirements Directive, Directive 2013/36/EU; and a new Capital Requirements Regulation. The UK seeks to challenge certain provisions only in those measures, namely:

Articles 94(1)(g), 94(2) and 162(1) and (3) of Directive 2013/36/EU (‘the CRD IV Directive’), which was published in the Official Journal on 27 June 2013. Pursuant to Article 164, the Directive entered into force on 17 July 2013.

Articles 450(1)(d), 450(1)(i), 450(1)(j) and 521(2) of the Capital Requirements Regulation, Regulation (EU) No 575/2013 (‘the CR Regulation’). The CR Regulation was published in the Official Journal on 27 June 2013, but entered into force on 28 June 2013, pursuant to Article 521(1). It has to be applied from 1 January 2014 by virtue of Article 521(2).

By the contested Acts, the Parliament and Council have put in place a number of measures addressing the variable remuneration that may permissibly be paid to certain employees of institutions (i.e. credit institutions and investment firms as defined in Article 4 of the CR Regulation). In particular Article 94(1)(g) of the CRD IV Directive has set a limit on the variable remuneration that can be paid to certain “material risk takers.” This has been known colloquially as a “cap on bankers’ bonuses.” Furthermore, by virtue of Article 94(2) of the CRD IV Directive, the EU legislature has assigned to the European Banking Authority (‘the EBA’), an agency established under Article 114 TFEU, the task of determining the criteria by which “material risk takers” are identified in any particular institution and for developing guidelines relating to a discount rate that may be applied to long-term variable remuneration. Once identified, Article 450 of the CR Regulation requires institutions to publish certain details of those individuals’ salaries for public dissemination.

The UK maintains that the contested provisions should be annulled on the following grounds:

The contested provisions have an inadequate Treaty legal base;

The contested provisions are disproportionate and/or fail to comply with the principle of subsidiarity;

The contested provisions have been brought into effect in a manner which infringes the principle of legal certainty;

The assignment of certain tasks to the EBA and conferral of certain powers on the Commission is ultra vires;

The identified disclosure requirements in the CR Regulation offend principles of data protection and privacy under EU law.

To the extent that Article 94(1)(g) is required to be applied to employees of institutions outside the EEA, it infringes Article 3(5) TEU and the principle of territoriality found in customary international law.

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¹ Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC,OJ L 176, p. 338.

² Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, OJ L 176, p. 1.