Action brought on 2 June 2020 — Portigon v SRB

(Case T-339/20)

Language of the case: German

Parties

Applicant: Portigon AG (Düsseldorf, Germany) (represented by: D. Bliesener, V. Jungkind and F. Geber, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

annul the defendant’s decision of 19 March 2020 on the calculation of the ex ante contributions to the Single Resolution Fund for 2016 (ref: SRB/ES/2020/16), in so far as the decision concerns the applicant;

stay the present proceedings under Article 69(c) and (d) of the Rules of Procedure of the General Court until a final decision is issued in Cases T-420/17, T-413/18 and T-481/19 or until those cases are otherwise brought to a conclusion;

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law.

First plea, alleging infringement of Regulation (EU) No 806/2014 of the European Parliament and of the Council, ¹ Council Implementing Regulation (EU) 2015/81 ² and TFEU through increases in the amounts of the contributions to be paid by the applicant to the fund.

The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution, since a mandatory contribution for institutions under resolution is not provided for under Regulation (EU) No 806/2014 and Directive 2014/59/EU of the European Parliament and of the Council. ³ Article 114 TFEU prohibits the levying of contributions on institutions such as the applicant.

The legislature was not entitled to base the obligation to pay a contribution on Article 114 TFEU owing to the lack of relevance to the internal market. Harmonised rules governing contributions throughout the European Union neither facilitate the exercise of fundamental freedoms nor remedy appreciable distortions of competition in relation to institutions that withdraw from the market.

The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution, since the institution has no risk exposure, there is no prospect of the institution entering into resolution in accordance with the rules of Regulation (EU) No 806/2014 and the institution is of no importance to the stability of the financial system.

The applicant has not engaged in any new business since 2012 and is under resolution as a result of an aid decision taken by the European Commission. It holds the majority of its remaining liabilities on trust for another entity.

Delegated Regulation (EU) 2015/63 ⁴ infringes Article 114 TFEU and Article 103(7) of Directive 2014/59/EU as an essential element relating to the calculation of the contribution (Article 290 TFEU).

Second plea, alleging infringement of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), on the ground that the calculation procedure does not allow for a complete statement of reasons for the contested decision.

Third plea, alleging infringement of Articles 16 and 20 of the Charter, since, in view of the special situation of the applicant, the contested decision is at variance with the general principle of equality. Furthermore, the contested decision interferes disproportionately with the applicant’s freedom to conduct a business.

Fourth plea, alleging breach of the principle of legal certainty, since retroactive effect is not necessary for the objective sought by Regulation (EU) No 806/2014 and is not permissible in the present case purely in order to simplify administration.

Fifth plea, alleging infringement of the essential formal requirements, since the defendant failed sufficiently to explain the factual circumstances, did not hear the applicant before adopting its decision and did not provide an adequate statement of reasons for its decision.

Sixth plea, alleging, in the alternative, infringement of Article 70(2) of Regulation (EU) No 806/2014 in conjunction with Article 103(7) of Directive 2014/59/EU, since the defendant, in calculating the amount of the contribution, should have excluded risk-free liabilities from the relevant liabilities.

Seventh plea, alleging, in the alternative, infringement of Article 70(6) of Regulation (EU) No 806/2014 in conjunction with Article 5(3) and (4) of Delegated Regulation (EU) 2015/63, since the defendant wrongly calculated the applicant’s contribution on the basis of a gross approach with regard to derivative contracts.

Eighth plea, alleging, in the alternative, infringement of Article 70(6) of Regulation (EU) No 806/2014, in conjunction with Article 6(8)(a) of Delegated Regulation (EU) 2015/63, since the defendant wrongly regarded the applicant as an institution undergoing reorganisation.

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¹ Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

² Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1).

³ Directive 2014/59/EU 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 (OJ 2014 L 173, p. 190).

⁴ Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).