Action brought on 5 July 2021 – Landesbank Baden-Württemberg v SRB

(Case T-389/21)

Language of the case: German

Parties

Applicant: Landesbank Baden-Württemberg (Stuttgart, Germany) (represented by: H. Berger and M. Weber, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

annul the decision of the Single Resolution Board of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund (SRB/ES/2021/22), including the annexes thereto, in so far as the contested decision, including Annex I, Annex II and Annex III thereto, concerns the applicant’s contribution;

order the defendant to pay the costs of the proceedings.

In the alternative, in the event that the Court takes the view that the contested decision is legally non-existent as a result of the use of the incorrect official language by the defendant and the action for annulment would therefore be inadmissible on the ground that it would be devoid of purpose, the applicant claims that the Court should:

declare that the contested decision is legally non-existent in so far as it concerns the applicant;

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on 10 pleas in law:

First plea in law: The decision infringes Article 81(1) of Regulation (EU) No 806/2014, ¹ in conjunction with Article 3 of Council Regulation No 1 of 15 April 1958, ² because it is not worded in the official language of German, which is to be used with the applicant.

Second plea in law: The decision infringes the obligation to state reasons laid down in the second paragraph of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) because it contains numerous instances of failure to state reasons, in particular with regard to the use by the defendant of numerous discretionary powers conferred by law, and does not disclose the data of other institutions.

Third plea in law: The decision infringes the requirement of effective legal protection under the first paragraph of Article 47 of the Charter because judicial review of the decision is practically impossible, thus impairing the applicant’s effective legal protection.

Fourth plea in law: Articles 4 to 9 of and Annex I to Delegated Regulation (EU) 2015/63 ³ (‘the delegated regulation’), as amended by Delegated Regulation (EU) 2016/1434, ⁴ infringe higher-ranking law because they make judicial review of the decision practically impossible, thus impairing the applicant’s effective legal protection.

Fifth plea in law: The second sentence of Article 7(4) of the delegated regulation infringes higher-ranking law because it allows for an objectively inappropriate and disproportionate differentiation to be made between the members of an Institutional Protection Scheme (‘IPS’) and for the IPS indicator to be relativised.

Sixth plea in law: The decision infringes, inter alia, Article 113(7) of Regulation (EU) No 575/2013 ⁵ and the requirement of risk-appropriate assessment of contributions because it uses a multiplier of 5/9 for the IPS indicator in the case of the applicant. A differentiation between institutions at the level of the IPS indicator is, on account of the extensive protective effect of an IPS, incompatible with the scheme and arbitrary.

Seventh plea in law: Articles 6, 7 and 9 of and Annex I to the delegated regulation infringe higher-ranking law, inter alia because they infringe the requirement of risk-appropriate assessment of contributions, the principle of proportionality and the requirement to take full account of the facts.

Eighth plea in law: The decision infringes the applicant’s freedom to conduct a business under Article 16 of the Charter and the principle of proportionality because the underlying risk-adjustment multipliers are not commensurate with the applicant’s risk profile, which is better than average.

Ninth plea in law: The decision infringes Articles 16 and 20 of the Charter as well as the principle of proportionality and the right to good administration on account of obvious errors in the exercise by the defendant of numerous discretionary powers.

Tenth plea in law: The first and second sentences of Article 20(1) of the delegated regulation infringe Article 103(7) of Directive 2014/59/EU ⁶ and the requirement of risk-appropriate assessment of contributions.

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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 Regulation No 1 determining the languages to be used by the European Economic Community (OJ 1958 17, p. 385).

³ 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).

⁴ Commission Delegated Regulation (EU) 2016/1434 of 14 December 2015 correcting Delegated Regulation (EU) 2015/63 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2016 L 233, p. 1).

⁵ Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

⁶ 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).