Action brought on 6 February 2018 — Aeris Invest v SRB

(Case T-62/18)

Language of the case: Spanish

Parties

Applicant: Aeris Invest Sàrl (Luxembourg, Luxembourg) (represented by: R. Vallina Hoset, A. Sellés Marco, C. Iglesias Megías and A. Lois Perreau de Pinninck, lawyers)

Defendant: Single Resolution Board

Form of order sought

The applicant claims that the General Court should:

Annul the decision of the Appeal Panel of the Single Resolution Board in Case 43/2017 of 28 November 2017, as well as confirmatory Decision SRB/CM01/ARES(2017)4898090 of 6 September 2017; and

Order the Single Resolution Board to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging that Decision SRB/ES/2017/01 on public access to the Single Resolution Board documents (‘the Access Decision’) infringes Article 90 of Regulation 80/2014 and Article 4 of Regulation 1049/2001 in that, first, it makes provisions ultra vires concerning the right of access to documents and, second, it creates exceptions to the right of access to documents which are not included in Regulation No 1049/2001. Thus, since its legal base is inapplicable under Article 277 TFEU, the Panel’s decision must be annulled.

Second plea in law, alleging that the Panel’s decision infringes Article 296 TFEU in that it merely claims, in vague and general terms, that disclosure of the full text of the 2016 Plan, the Resolution Decision and the Valuation Report infringes Article 4(1)(a) and 4(2) of Regulation 1049/2001.

Third plea in law, alleging that the Panel’s decision infringes Article 15 of the Treaty on the functioning of the European Union, Article 42 of the Charter of Fundamental Rights of the European Union and Article 4(1)(a) of Regulation No 1049/2001, in that (i) the resolution policy for credit institutions is not a valid exception for restricting the fundamental right to access to documents, (ii) the requirements of Article 4(1)(a) of Regulation No 1049/2001 are not met, and (iii) the valuation of the interests at stake makes it necessary to grant access to the documents requested.

Fourth plea in law, alleging that the Panel’s decision infringes Article 15 of the Treaty on the functioning of the European Union, Article 42 of the Charter of Fundamental Rights of the European Union and Article 4(2) of Regulation No 1049/2001, in that granting full access to the Resolution Decision, the Valuation Report and the 2016 Plan (i) does not affect the commercial interests of natural and legal persons and (ii) in any event, the weighing up of the interests at stake comes down in favour of granting access to the documents.

Fifth plea in law, alleging that the Panel’s decision infringes Article 15 TFEU and Article 88 of Regulation No 806/2014, by denying access to information which is not protected by professional secrecy provided that (i) there exists no presumption of confidentiality pursuant to Article 88 of Regulation No 806/2014 and Article 339 TFEU and (ii) even if a presumption of confidentiality did exist, it would not apply because the documents are being requested for use in the context of legal proceedings.

Sixth plea in law, alleging that the Panel’s decision amounts to misuse of power, in so far as it denies the applicant full access to the 2016 Plan claiming that that plan ‘is fully covered by the exceptions set out in the third indent of Article 4(1)(a), Article 4(1)(c) and Article 4(2) [of the Access Decision], whereas, in fact, there are credible reasons for believing that the reason for that denial is none other than to hide the mistakes, gaps and shortcomings vitiating that plan.

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