Action brought on 8 July 2020 — Max Heinr.Sutor v SRB
(Case T-427/20)
Language of the case: German
Parties
Applicant: Max Heinr.Sutor OHG (Hamburg, Germany) (represented by: A. Glos, H. Nemeczek and T. Kreft, lawyers)
Defendant: Single Resolution Board (SRB)
Form of order sought
The applicant claims that the Court should:
annul the decision of the Single Resolution Board of 15 April 2020 on contributions levied in advance to the Single Resolution Fund for the year 2020 (Ref.: SRB/ES/2020/24 — 1405146-2020-JB), in so far as it concerns the applicant;
order the SRB to pay the costs of the proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on ten pleas in law.
1. First plea in law, alleging an infringement of Article 5(1)(e) of Commission Delegated Regulation (EU) 2015/63 1 in that the client funds administered by the applicant in a fiduciary capacity were not excluded from the calculation of the contribution levied in advance to the Single Resolution Fund for the year 2020.
2. Second plea in law, alleging an infringement of the second subparagraph of Article 70(2)(b) of Regulation (EU) No 806/2014 of the European Parliament and of the Council, 2 in conjunction with Article 103(7) of Directive 2014/59/EU of the European Parliament and of the Council, 3 because the decision infringes the principle of proportionality in that it fixes a bank levy increased 200 times on the sole basis of the — risk-free — fiduciary liabilities shown by the applicant in the balance sheet.
3. Third plea in law, alleging an infringement of the principle of equal treatment, in that the decision treats the applicant unequally in relation to credit institutions whose national accounting standards do not require disclosure of fiduciary liabilities or which prepare their accounts in accordance with IFRS, and investment firms which manage clients' funds, without any objective justification.
4. Fourth plea in law, alleging an infringement of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in that the decision encroaches on entrepreneurial freedom, since the inclusion of the risk-free fiduciary liabilities in the basis of assessment leads to an increase in the applicant’s bank levy for the year 2020 by a factor of 200, without there being any justification for such encroachment.
5. Fifth plea in law, alleging an infringement of Article 49 in conjunction with Article 54 TFEU, in that the decision restricts the applicant's freedom to pursue her professional activities in the Member State in which she has her principal establishment, which restriction is disproportionate, and discriminates against the applicant in relation to credit institutions in other Member States.
6. Sixth plea in law, alleging an infringement of Article 41(1) and (2)(a) of the Charter, in that the applicant was not heard before the decision was approved by the defendant’s Bureau.
7. Seventh plea in law, alleging an infringement of Article 41(1) and (2)(c) of the Charter and Article 296(2) TFEU, since the decision does not satisfy the requirements for the statement of reasons for acts of European administrative authorities.
8. Eighth plea in law (in the alternative), alleging nullity of the legal basis for the tax base under Article 14(2) in conjunction with Article 3(11) of Delegated Regulation (EU) 2015/63 as a result of a breach of the principle of equal treatment, in that it treats credit institutions which under their national accounting standards are required to show fiduciary liabilities on the liabilities side of the balance sheet in an objectively unjustifiably unequal manner in comparison with other credit institutions whose national accounting standards do not require disclosure of the fiduciary liabilities or which account under IFRS.
9. Ninth plea in law (in the alternative), alleging nullity of the legal basis for the tax base under Article 14(2) in conjunction with Article 3(11) of Delegated Regulation (EU) 2015/63 on the grounds of infringement of Article 16 of the Charter, on the grounds that the decision encroaches on entrepreneurial freedom and that such encroachment is not justified.
10. Tenth plea in law (in the alternative), alleging nullity of the legal basis for the assessment base under Article 14(2) in conjunction with Article 3(11) of Delegated Regulation (EU) 2015/63 on the ground that it infringes Article 49 in conjunction with Article 54 TFEU, because it is contrary to the freedom of establishment.
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1 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).
2 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).
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).