Action brought on 8 July 2016 — Portigon v SRB

(Case T-365/16)

Language of the case: German

Parties

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

Defendant: Single Resolution Board (SRB)

Form of order sought

Annul the defendant’s decisions underpinning the notices by which, on 22 April 2016 (Ref: 2208101-2016-JB) and on 10 June 2016 (Ref: 2208102-2016-JB2), the German Federal Agency for Financial Market Stabilisation (Bundesanstalt für Finanzmarktstabilisierung) requested payment by the applicant of annual contributions to the Single Resolution Fund for the year 2016;

order the defendant to produce the decisions referred to in the first paragraph;

order the defendant to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging infringement of the first, second and third subparagraphs of Article 70(2) of Regulation (EU) No 806/2014 ¹ in conjunction with Article 8(1)(a) of Implementing Regulation (EU) 2015/81 ² in conjunction with Article 103(7) of Directive 2014/59/EU ³

The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution to the Fund, as 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 is no longer operationally active on the market. Since the beginning of 2012 it no longer engages in any new business and it is under resolution as a result of an aid decision by the Commission. It holds the majority of its remaining liabilities on trust for another entity, which has taken over the opportunities and risks from that business.

Delegated Regulation (EU) 2015/63, ⁴ which makes no provision for exceptions for institutions such as the applicant, itself infringes Article 103(7) of Directive 2014/59/EU.

Second plea in law, alleging infringement of Article 16 and Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’)

In view of the special situation of the applicant in comparison with other credit institutions liable to pay contributions, the decisions are contrary to the general principle of equality. Further, they interfere disproportionately with the applicant’s freedom to conduct a business.

Third plea in law, alleging, in the alternative, infringement of the first, second and third subparagraphs of Article 70(2) of Regulation (EU) No 806/2014 in conjunction with Article 8(1)(a) of Implementing Regulation (EU) 2015/81 in conjunction with Article 103(7) of Directive 2014/59/EU

In calculating the amount of the contribution, the defendant wrongly failed to exclude the applicant’s risk-free on-balance sheet fiduciary business from the liabilities relevant to collection of the contribution.

Fourth plea in law, 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

In calculating the amount of the contribution, the defendant wrongly failed to adopt a risk-appropriate net approach in relation to the applicant’s derivative contracts, adopting instead a gross approach.

Fifth plea in law, 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

In calculating the amount of the contribution, the defendant wrongly regarded the applicant as an institution undergoing restructuring. The risk indicator under Article 6(5)(c) of Delegated Regulation (EU) 2015/63 should have taken the minimum value.

Sixth plea in law, alleging infringement of Article 41(1) and (2)(a) of the Charter, as the defendant should have given the applicant a hearing before adopting its decisions.

Seventh plea in law, alleging infringement of Article 41(1) and (2)(c) of the Charter, as the defendant did not give adequate reasons for its decisions.

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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).