Language of document :

Action brought on 5 March 2018 – Braesch and Others v Commission

(Case T-161/18)

Language of the case: English


Applicants: Anthony Braesch (Luxembourg, Luxembourg), Trinity Investments DAC (Dublin, Ireland), Bybrook Capital Master Fund LP (Grand Cayman, Cayman Islands), Bybrook Capital Hazelton Master Fund LP (Grand Cayman), Bybrook Capital Badminton Fund LP (Grand Cayman) (represented by: M. Siragusa, A. Champsaur, G. Faella, and L. Prosperetti, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul Commission decision C(2017) 4690 final of 4 July 2017,1 in Case SA.47677 (2017/N);

in the alternative, annul the said decision insofar as it concerns the treatment of the FRESH 2 Instruments;

order the Commission to pay the applicants’ legal and other costs and expenses in relation to this matter;

take any other measures the Court considers appropriate, including measures of organisation of procedure under Articles 89(3) and/or measures of inquiry under Article 91(1)(b) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

First plea in law, alleging that the Commission unlawfully endorsed burden sharing measures in the context of a precautionary recapitalisation, in violation of Articles 18 and 21 of Regulation (EU) No 806/2014 (failure to give reasons).3

Second plea in law, alleging that the Commission unlawfully required the cancellation of the FRESH contracts (manifest error of law and fact in departing from the 2013 Banking Communication;4 infringement of the principles of protection of legitimate expectations and equal treatment; failure to give reasons).

Third plea in law, alleging that the contested decision treats the FRESH holders in a discriminatory way (violation of the right to equal treatment, protected under Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (‘Charter’) and Article 14 and Protocol 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’); manifest error of assessment; failure to give reasons).

Fourth plea in law, alleging that the contested decision infringes the FRESH holders’ property rights (violation of property rights protected under Article 17 of the Charter and Article 1 of Protocol 1 of the ECHR; failure to give reasons).

Fifth plea in law, alleging that the Commission failed to open the formal investigation procedure, notwithstanding the fact that there were serious doubts about the compatibility of the measures with EU law (violation of Article 108(2) and (3) TFEU; violation of Article 4(3) and (4) of Council Regulation 2015/1589;5 manifest error of assessment; failure to give reasons).


1 OJ 2018 C 40, p. 7.

2 Floating Rate Equity-linked Subordinated Hybrid (a form of bond).

3 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).

4 Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘Banking Communication’) (OJ 2013 C 216, p. 1).

5 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).