Action brought on 7 May 2018 – Banco Comercial Português and Others v Commission

(Case T-298/18)

Language of the case: English

Parties

Applicants: Banco Comercial Português (Porto, Portugal), Banco ActivoBank S.A. (Lisbon) and Banco de Investimento Imobiliário S.A. (Lisbon) (represented by: C. Botelho Moniz, L. do Nascimento Ferreira, F.-C. Laprévote, A. Champsaur and D. Oda, lawyers)

Defendant: European Commission

Form of order sought

annul Commission Decision C(2017/N) of 11 October 2017 (State aid SA.49275) insofar as it considered the contingent capital agreement (“CCA”) agreed and entered into between the Portuguese Resolution Fund (“Resolution Fund”) and the Lone Star group (“Lone Star”) in the context of the sale of Novo Banco, S.A. (“Novo Banco”) by the former to the latter, as State aid compatible with the internal market, and

order the Commission to pay the costs in relation to this procedure, including those of the applicants.

Pleas in law and main arguments

In support of the action, the applicants rely on six pleas in law.

First plea in law, alleging that the Commission erred in law in considering that the 2014 resolution of Banco Espírito Santo, S.A. (“BES”) was taken solely under Portuguese law and prior to the entry into force of 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) (“BRRD”) ;

Second plea in law, alleging that the Commission erred in law in considering that the BRRD applied only from 1 January 2015 ;

Third plea in law, alleging that the Commission erred in law in considering that, in order to preserve the unity and implementation of the initial resolution process of BES, the sale of Novo Banco should be governed by national law in force prior to the implementation of the BRRD ;

Fourth plea in law, alleging that the Commission erred in law when it wrongfully considered that there are no indissolubly linked provisions of the BRRD relevant for the assessment of the CCA ;

Fifth plea in law, alleging that the Commission infringed Articles 101 and 44 BRRD ; and

Sixth plea in law, alleging that the Commission infringed Article 108(2) TFEU and Article 4(4) of the Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (“Procedural Regulation”, OJ 2015, L 248, p. 9), by failing to open the formal procedure notwithstanding the serious doubts raised as to the compatibility of the CCA mechanism with EU law thereby depriving the applicants of their procedural rights.

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