Action brought on 15 February 2013 - United Kingdom v ECB

(Case T-93/13)

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: K. Beal, QC, and E. Jenkinson, agent)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

Partially annul the Decision of the European Central Bank of 11 December 2012 amending decision ECB/2007/7 concerning the terms and conditions of TARGET2-ECB (Decision ECB/2012/31) (OJ 2013 L 13, p. 8.);

Partially annul the Guideline of the European Central Bank of 5 December 2012 on a Trans-European Automated Real-time Gross settlement Express Transfer system (TARGET2) (Guideline ECB/2012/27) (OJ 2013 L 30, p. 1);

Order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

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

First plea in law, alleging that the ECB lacked competence to publish the contested acts, either at all or alternatively without recourse to the promulgation of a legislative instrument such as a Regulation, adopted either by the Council or alternatively by the ECB itself;

Second plea in law, alleging that contested acts either de jure or de facto impose a residence requirement on Central Clearing Counterparties ("CCPs") that wish to undertake clearing or settlement operations in the euro currency whose daily trades exceed a certain volume. Further or alternatively they restrict or impede the nature and/or extent of services or capital which may be supplied to CCPs located in non-euro area Member States. The contested acts infringe all or any of Articles 48, 56 and/or 63 TFEU, in that:

CCPs established in non-euro area Member States, such as the United Kingdom, will be obliged to relocate their centres of administration and control to Member States which are members of the Eurosystem. They will also be obliged to re-incorporate as legal persons recognised in the domestic law of another Member State;

In the event that such CCPs do not relocate as required, they will be precluded from access to the financial markets in the Eurosystem Member States, either on the same terms as CCPs established in those territories, or at all;

Such non-resident CCPs will not be entitled to facilities offered by the ECB or the National Central Banks ("NCBs") of the Eurosystem, either on the same terms or at all;

As a result, the ability of such CCPs to offer clearing or settlement services in the euro currency to customers in the Union will be restricted or even prohibited in its entirety.

Third plea in law, alleging that the contested acts infringe Articles 101 and/or 102 TFEU, read in conjunction with Article 106 TFEU and Article 13 TEU, since:

They effectively require all clearing operations proceeding in the euro currency exceeding a certain level to be conducted by CCPs established in a euro area Member State;

They effectively direct the ECB and/or euro-area and/or NCBs not to supply euro currency reserves to CCPs established in non-euro area Member States if they exceed the thresholds set in the decision.

Fourth plea in law, alleging that the requirement for CCPs established in non-euro area Member States to adopt a different corporate personality and domicile is direct or indirect discrimination on grounds of nationality. It also offends the general EU principle of equality, since CCPs established in different Member States are subject to disparate treatment without any objective justification for the same.

Fifth plea in law, alleging that the contested acts infringe relevant provisions of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4July 2012 on OTC derivatives, central counterparties and trade repositories (OJ 2012 L 201, p. 1).

Sixth plea in law, alleging that contested acts infringe all or any of Articles II, XI, XVI and XVII of the General Agreement on Trade in Services (GATS).

Seventh plea in law, alleging that, without assuming the burden of establishing that a public interest justification for such restrictions is not available (the onus being on the ECB to advance its case for a derogation if it so chooses), the United Kingdom contends that any public policy justification advanced by the ECB would not satisfy the requirement of proportionality, since less restrictive means of ensuring control over financial institutions resident within the Union but outside the euro area are available.

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