ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
12 April 2019 (*)
(Intervention ‐ Interest in the result of the case)
In Case T‑570/17,
Algebris (UK) Ltd, established in London (United Kingdom),
Anchorage Capital Group LLC, established in New York, New York (United States of America),
represented initially by T. Soames, J. Vandenbussche, lawyers, R. East, Solicitor, and N. Chesaites, Barrister, and subsequently by T. Soames, lawyer, R. East, Solicitor, and N. Chesaites, Barrister,
applicants,
v
European Commission, represented by L. Flynn, É. Gippini Fournier, J. Rius, K.-Ph. Wojcik and A. Steiblytė, acting as Agents,
defendant,
ACTION under Article 263 TFEU for annulment of Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español S.A. (OJ 2017 L 178, p. 15),
makes the following
Order
Facts and proceedings
1 On 7 June 2017, the Single Resolution Board (SRB) adopted Decision SRB/EES/2017/08 concerning the adoption of a resolution scheme in respect of Banco Popular Español, S.A. (‘the resolution decision’).
2 The resolution decision states that the resolution scheme applied to Banco Popular Español (‘Banco Popular’) is the sale of business tool provided for in Article 24 of 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). As part of that resolution scheme, the SRB decided to (i) write down in its entirety the nominal amount of Banco Popular’s share capital and, subsequently, convert all principal amount of Banco Popular’s Additional Tier 1 instruments into ‘New Shares I’ and to write down to zero the nominal amount of the ‘New Shares I’, (ii) convert all principal amount of Banco Popular’s Tier 2 instruments into ‘New Shares II’ and (iii) transfer the ‘New Shares II’ to Banco Santander, SA for a purchase price of EUR 1.
3 On 7 June 2017, the European Commission adopted Decision (EU) 2017/1246 endorsing the resolution scheme for Banco Popular (OJ 2017 L 178, p. 15) (‘the contested decision’).
4 On the same day, the Spanish resolution authority, the Fondo de Reestructuración Ordenada Bancaria (Fund for Orderly Bank Restructuring, ‘the FROB’ ), adopted the necessary measures to implement the resolution scheme in accordance with Article 29 of Regulation No 806/2014. In that connection, the FROB agreed to the transfer of Banco Popular’s new shares resulting from the conversion of the Tier 2 instruments to Banco Santander.
5 By application lodged at the Court Registry on 17 August 2017, the applicants, Algebris (UK) Ltd and Anchorage Capital Group LLC, brought an action for annulment of the contested decision.
6 By document lodged at the Court Registry on 18 December 2017, the SRB sought leave to intervene in the present case in support of the form of order sought by the Commission.
7 The application for leave to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
8 By document lodged at the Court Registry on 1 October 2018, the applicants raised objections to the SRB’s application for leave to intervene. The applicants claimed that the SRB’s application for leave to intervene should be rejected on the ground that it had not established a direct, existing interest in the result of the case.
9 The Commission did not lodge any observations within the prescribed period.
Law
10 Under the first paragraph of Article 40 of the Statute of the Court of Justice, applicable to the General Court pursuant to Article 53 thereof, Member States and institutions of the Union may intervene in cases before the Court of Justice. The second paragraph of Article 40 of the Statute of the Court of Justice provides that the same right is to be open to the bodies, offices and agencies of the European Union if they can establish an interest in the result of a case.
11 Under Article 143(2)(f) of the Rules of Procedure, the application for leave to intervene must, in order for it to be admissible, also contain a statement of the circumstances establishing the right to intervene, where the application is submitted pursuant to the second or third paragraph of Article 40 of the Statute.
12 According to Article 42(1) of Regulation No 806/2014, the SRB is an agency of the European Union with legal personality.
13 The application for leave to intervene submitted by the SRB is therefore admissible only if it establishes an interest in the result of the case.
14 According to the Court’s settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment or order (see order of the President of the Court of Justice of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 5 and the case-law cited).
15 In that regard, it is necessary to ascertain, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is established. In principle, an interest in the result of the case can be regarded as sufficiently direct only if the result would be such as to change the legal position of the applicant seeking leave to intervene (see order of the President of the Court of Justice of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 6 and the case-law cited).
16 In the present case, the SRB submits that it has an interest in the result of the case on the ground that it adopted the resolution decision, which was endorsed pursuant to Article 18(7) of Regulation No 806/2014 by the Commission in the contested decision.
17 The applicants submit that the SRB has not established an interest in the result of the case. According to the applicants, the SRB does not state whether, if the contested decision were to be annulled, the resolution decision would be void. In the applicants’ view, if the contested decision were to be annulled, the resolution decision would have the legal status of a non-binding proposal and the steps taken by other institutions to apply the resolution decision would have no legal basis. The SRB has not shown to what extent those consequences would affect its legal position, as distinct from the effect that the annulment of the contested decision could have on the resolution decision.
18 It should be noted that, in the contested decision, the Commission endorsed the resolution decision, indicating that it agreed with the resolution scheme and the reasons put forward by the SRB to establish that a resolution measure was necessary in the public interest, in accordance with Article 5 of Regulation No 806/2014.
19 It follows that the applicants, by disputing the validity of the contested decision, dispute, indirectly but necessarily, the assessments made by the SRB in the resolution decision.
20 As regards an application for leave to intervene lodged by the SRB in a case seeking the annulment of an act which was not adopted by that agency, the requirement of an interest in the result of the case is met and the conditions laid down in the second paragraph of Article 40 of the Statute of the Court of Justice are therefore satisfied where the contested act merely endorses a resolution decision adopted by the SRB and the applicant challenges, albeit only indirectly, the validity of the SRB’s assessments on which the resolution decision was based (see, to that effect and by analogy, order of 1 March 2018, ICL-IP Terneuzen and ICL Europe Coöperatief v Commission, T‑610/17, not published, EU:T:2018:139, paragraph 13).
21 Contrary to the applicants’ claims, the SRB’s legal position does not need to be affected in order for it to have an interest in the result of the case. It is sufficient if the annulment of the contested decision were to call into question its own assessments in the resolution decision.
22 As the application for leave to intervene was lodged in accordance with Article 143 of the Rules of Procedure and the SRB has established its interest in the result of the case, the SRB’s application for leave to intervene in support of the form of order sought by the Commission must be granted, without it being necessary to examine the other reasons put forward by the SRB.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The Single Resolution Board (SRB) is granted leave to intervene in Case T‑570/17 in support of the form of order sought by the European Commission.
2. The Registrar shall provide the SRB with all the procedural documents served on the main parties.
3. A time limit shall be set for the SRB to submit a statement in intervention.
4. The costs are reserved.
Luxembourg, 12 April 2019.