ORDER OF THE GENERAL COURT (Seventh Chamber)
10 October 2023 (*)
(Action for annulment – Economic and monetary union – Banking union – Single Resolution Mechanism for credit institutions and certain investment firms (SRM) – Resolution procedure applicable where an entity is failing or is likely to fail – Decision of the SRB not to adopt a resolution scheme – Shareholders – Lack of direct concern – Inadmissibility)
In Case T‑527/22,
Sberbank of Russia PAO, established in Moscow (Russia), represented by D. Rovetta, M. Campa, M. Pirovano, M. Moretto and V. Villante, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by K.-P. Wojcik, H. Ehlers, J. Rius Riu and L. Forestier, acting as Agents, and by B. Meyring, S. Schelo and S. Ianc, lawyers,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg (Rapporteur) and G. Hesse, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
– the application lodged at the Registry of the General Court on 22 August 2022,
– the defence, lodged at the Court Registry on 25 November 2022,
– the application for leave to intervene lodged by the European Central Bank (ECB) at the Court Registry on 25 November 2022,
– the question put to the applicant by the Court pursuant to Article 89(3)(a) of its Rules of Procedure and the applicant’s answer to that question,
makes the following
Order
1 By its action on the basis of Article 263 TFEU, the applicant, Sberbank of Russia PAO, seeks annulment (i) of Decision SRB/EES/2022/19 of the Single Resolution Board (SRB) of 1 March 2022 not to adopt a resolution scheme in respect of Sberbank Europe AG, within the meaning of Article 18(1) of 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) (‘the contested decision’), and (ii) of Valuation Report 1 in respect of Sberbank Europe AG of 27 February 2022, drawn up by the SRB.
Background to the dispute
2 The applicant is the largest bank in the Russian Federation. It holds all (100%) of the shares in Sberbank Europe AG, which, at the material time, was a credit institution established in Austria.
3 Sberbank Europe had subsidiaries that were established in Member States of the European Union and in third States and it formed a group with those subsidiaries (‘the Sberbank Europe group’).
4 As a result of the geopolitical tensions between the Russian Federation and Ukraine, which culminated in the Russian invasion of Ukraine on 24 February 2022, Sberbank Europe’s liquidity situation deteriorated, owing, inter alia, to a wave of significant withdrawals of the deposits which were held by it.
5 On 27 February 2022, the European Central Bank (ECB), in accordance with the second and third subparagraphs of Article 18(1) of Regulation No 806/2014, found that Sberbank Europe would, in the near future, probably be unable to pay its debts or other liabilities as they fell due. Consequently, the ECB found that that credit institution was deemed to be failing or likely to fail, in accordance with Article 18(4)(c) of Regulation No 806/2014. On the same day, the ECB communicated to the SRB its final failing or likely to fail assessment in respect of Sberbank Europe.
6 On 27 February 2022, the SRB adopted Valuation Report 1 regarding Sberbank Europe in order to determine, inter alia, whether the conditions for resolution were met, in accordance with Article 20(5)(a) of Regulation No 806/2014. In that report, the SRB confirmed the ECB’s assessment that Sberbank Europe was failing or likely to fail, within the meaning of Article 18(1)(a) of Regulation No 806/2014.
7 On 27 February 2022, the SRB ordered the suspension of Sberbank Europe’s payment and delivery obligations, in accordance with Article 33a 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).
8 On 1 March 2022, the SRB adopted the contested decision, in which it found that Sberbank Europe was not to be placed under resolution (Article 1). The SRB found that one of the three conditions under the first subparagraph of Article 18(1) of Regulation No 806/2014 for the adoption of a resolution scheme, namely that a resolution action is necessary in the public interest, was not satisfied in the present case.
9 The contested decision was addressed to the Finanzmarktaufsicht (Financial Market Authority, Austria), in its capacity as the national resolution authority (‘the Austrian NRA’), within the meaning of Article 3(1)(3) of Regulation No 806/2014 (Article 2 of the contested decision).
10 On 1 March 2022, the SRB also adopted Decisions SRB/EES/2022/20 and SRB/EES/2022/21 on the adoption of resolution schemes in relation to, respectively, Sberbank banka d.d., established in Slovenia (‘Sberbank Slovenia’), and Sberbank d.d., established in Croatia (‘Sberbank Croatia’), subsidiaries of Sberbank Europe. The resolution schemes adopted in respect of those two credit institutions provided, inter alia, for their shares to be transferred to third-party credit institutions.
Forms of order sought
11 The applicant claims that the Court should:
– annul the contested decision and Valuation Report 1;
– order the SRB to pay the costs.
12 In its reply to the written question put by the Court, the applicant also claims that the Court should declare the action admissible.
13 The SRB contends that the Court should:
– dismiss the action as inadmissible and, in any event, as unfounded;
– order the applicant to pay the costs.
Law
14 Under Article 129 of the Rules of Procedure of the General Court, on a proposal from the Judge-Rapporteur, the Court may at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case, including the conditions governing the admissibility of an action (see order of 15 March 2016, Larymnis Larko v Commission, T‑575/14, not published, EU:T:2016:168, paragraph 13 and the case-law cited). In addition, under Article 126 of the Rules of Procedure, where an action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
15 In the present case, the SRB has also contended in the defence that the action is inadmissible on the ground, inter alia, that the contested decision is not of direct concern to the applicant, within the meaning of the fourth paragraph of Article 263 TFEU. The applicant set out its stance on that plea of inadmissibility in its reply to the Court’s written question.
16 The Court, applying Articles 126 and 129 of the Rules of Procedure, has decided to rule on the admissibility of the action in the present order.
17 It is necessary to carry out a separate assessment of the admissibility of the action in so far as it is directed, first, against Valuation Report 1 and, second, against the contested decision.
Admissibility of the action in so far as it is directed against Valuation Report 1
18 As regards Valuation Report 1, Article 20(15) of Regulation No 806/2014 provides, inter alia, that the valuation is to be an integral part of the decision on the application of a resolution tool or on the exercise of a resolution power, that it is not subject to a separate right of appeal, but that it may be subject to an appeal together with the decision of the SRB.
19 It is thus apparent that Article 20(15) of Regulation No 806/2014 confirms the preparatory nature of the valuation report (or reports) drawn up in the procedure intended to enable the SRB to take a decision related to the resolution of the credit institutions in question.
20 It follows that in the present case Valuation Report 1 is not a challengeable act for the purposes of Article 263 TFEU and that, consequently, the applicant’s claim for annulment of that report must be dismissed as manifestly inadmissible, in accordance with Article 126 of the Rules of Procedure.
Admissibility of the action in so far as it is directed against the contested decision
21 It is appropriate to examine from the outset whether the contested decision is of direct concern to the applicant, within the meaning of the fourth paragraph of Article 263 TFEU.
22 The fourth paragraph of Article 263 TFEU provides that any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
23 Since the contested decision is not addressed to the applicant and it is, moreover, not a regulatory act, the applicant must show that that decision is of direct concern to it.
24 In that respect, it is apparent from settled case-law that the condition that a natural or legal person must be directly concerned by the decision which is the subject matter of the action, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the person’s legal situation and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (judgments of 22 March 2007, Regione Siciliana v Commission, C‑15/06 P, EU:C:2007:183, paragraph 31; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66; and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42).
25 The SRB argues, in essence, that the first criterion referred to above is not satisfied, namely the contested decision does not directly affect the applicant’s legal situation.
26 In that regard, it should be borne in mind that the contested decision provides that no resolution scheme will be adopted in respect of Sberbank Europe. Thus, the contested decision has effects on the legal position of that credit institution (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 39).
27 However, the contested decision does not directly affect the legal position of the sole shareholder of Sberbank Europe, namely the applicant, since the right of that shareholder to receive dividends and to participate in the management of the abovementioned credit institution has not been affected by that decision (see, to that effect and by analogy, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 110, and order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 40).
28 As is apparent from the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the negative effect on shareholders of withdrawal of a credit institution’s licence is economic and not legal in nature, since, although that credit institution would no longer be in a position to continue its activity following that withdrawal and, in fact, to distribute dividends, the right of shareholders to receive dividends and to participate in management remains unchanged (see, to that effect, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 111, and order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 41).
29 That is all the more the case in this instance since the contested decision provides only that Sberbank Europe is not to be subject to resolution. Accordingly, unlike the situation at issue in the case that gave rise to the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), that decision has neither the object nor the effect of withdrawing from that bank its licence authorising it to carry on the business of a credit institution (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 42).
30 It must therefore be held that the contested decision does not directly affect the applicant’s legal situation for the purposes of the case-law cited in paragraph 24 above.
31 The arguments put forward by the applicant do not call that finding into question.
32 In the first place, the applicant refers to the implementation of the contested decision by the Austrian NRA. In that context, the applicant refers, first, to the fact that that NRA prohibited Sberbank Europe from continuing its business operations and, second, to the fact that that NRA appointed a government commissioner to Sberbank Europe, an appointment which allegedly limited the applicant’s rights in relation to the management of that credit institution which were based on its status as the sole shareholder thereof. The applicant also refers to the fact that the Austrian NRA required it to take the decision to place Sberbank Europe in liquidation. The applicant submits that the NRA’s actions, although coming within the scope of Austrian national law, were delineated by the SRB in the contested decision. According to the applicant, the manner in which the Austrian NRA implemented the contested decision demonstrated that it was directly concerned by that decision.
33 In that regard, it should be borne in mind that the contested decision merely provides, in Article 1, that Sberbank Europe is not to be placed under resolution and, in Article 2, that it is addressed to the Austrian NRA. In recitals 13 to 23, the contested decision sets out Austrian national law on insolvency and bankruptcy procedures.
34 It must therefore be held that it is not at all apparent from the content of the contested decision that the SRB in some way required the Austrian NRA to adopt the measures referred to by the applicant. More generally, the documents before the Court do not show that the measures adopted by the NRA constitute implementation of the contested decision that is ‘purely automatic and resulting from EU rules alone’, for the purposes of the case-law cited in paragraph 24 above. Accordingly, the relevant EU rules, in this case Regulation No 806/2014, make no provision for an NRA to adopt the measures referred to above in relation to a credit institution (as is the case with Sberbank Europe) in respect of which the SRB has decided not to adopt a resolution scheme on the ground that the conditions set out in the first subparagraph of Article 18(1) of that regulation are not satisfied (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 43). In the present case, the measures adopted by the Austrian NRA, as referred to by the applicant, appear to fall outside the framework of the resolution mechanism (see, to that effect, judgment of 6 July 2022, ABLV Bank v SRB, T‑280/18, under appeal, EU:T:2022:429, paragraph 50) and are not capable of showing that it is directly concerned by the contested decision, for the purposes of the fourth paragraph of Article 263 TFEU.
35 In the second place, the applicant refers to Sberbank Europe’s conclusion of an agreement on 3 November 2021 for the sale of six of its subsidiaries, including Sberbank Slovenia and Sberbank Croatia, to a third-party company, which would have led to the restructuring of the Sberbank Europe group and the refocusing of the applicant’s and Sberbank Europe’s operations (‘the Adria transaction’). That transaction was scheduled to close in the last quarter of 2022.
36 The applicant submits that the contested decision, considered in the light of two other decisions adopted by the SRB on 1 March 2022, on the adoption of a resolution scheme in respect of Sberbank Slovenia and Sberbank Croatia, led to the Adria transaction being abandoned, thus affecting its management rights over Sberbank Europe (as its sole shareholder) and over the Sberbank Europe group.
37 That line of argument put forward by the applicant cannot be accepted since it has not been shown that the non-performance of the Adria transaction results in any way from the contested decision, which merely provides that Sberbank Europe will not be placed under resolution.
38 It should also be noted, in addition, that the other two decisions adopted by the SRB on 1 March 2022 and which are referred to by the applicant concern Sberbank Slovenia and Sberbank Croatia, namely entities that are legally distinct from Sberbank Europe. Since the applicant does not hold any shares in those two entities, it has neither management rights nor a right of property over them. It follows from the foregoing that the applicant is not justified in referring to those other two SRB decisions for the purpose of demonstrating that it is directly concerned by the contested decision, which concerns solely Sberbank Europe.
39 In the third place, the applicant refers to the fact that on 3 May 2021 the SRB had adopted a resolution plan for the Sberbank Europe group pursuant to Article 8 of Regulation No 806/2014 (‘the 2021 resolution plan’). The plan provided that resolution action might be necessary in the event of the failure of Sberbank Europe. According to that plan, the preferred resolution strategy consisted of a bail-in at the level of Sberbank Europe; as an alternative strategy, the 2021 resolution plan foresaw the sale of businesses and identified certain Sberbank Europe subsidiaries, including Sberbank Slovenia and Sberbank Croatia, as being among the entities to be sold.
40 The 2021 resolution plan specified that the preferred resolution strategy was not based on separating the entities of the Sberbank Europe group, its structure being intended to remain unchanged. According to that plan, Sberbank Europe and its EU-based subsidiaries were considered to be part of the same resolution group (the EU resolution group).
41 The applicant argues that the contested decision, viewed in the light of two other decisions of the SRB of 1 March 2022 concerning Sberbank Slovenia and Sberbank Croatia, directly affected its legal position since it in essence excluded the adoption of a resolution scheme at the level of the Sberbank Europe group, as provided for in the 2021 resolution plan, and the sale ‘in package’ of the subsidiaries of that group, as foreseen in that plan (as an alternative resolution strategy) and in the Adria transaction. According to the applicant, the contested decision affected its right to dispose, as a whole, of the assets corresponding to the subsidiaries of the Sberbank Europe group and also its right to decide on the strategy to be pursued at the level of that group. The applicant argues that those rights are expressions of the right to property and the freedom to conduct a business, as enshrined in Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
42 As regards the part of the applicant’s line of argument relating to the Adria transaction, it must be rejected in the light of the considerations set out in paragraphs 37 and 38 above. In particular, it must be recalled that it has not been shown that the non-performance of the Adria transaction is a result of the contested decision.
43 Similarly, as regards the part of the applicant’s argument that states that the fact that the contested decision departed from the 2021 resolution plan demonstrated that it was directly concerned by that decision, it should be recalled that a decision not to place a particular credit institution under resolution (such as the contested decision in the present case) does not directly affect the legal position of its shareholders (see paragraphs 27 to 29 above). The applicant is therefore not justified in claiming that its rights to dispose of the assets of Sberbank Europe and to manage that entity are affected by the contested decision and by the fact that that decision differs from the 2021 resolution plan. Furthermore, it must be observed that the applicant, owing to the fact that it is not a shareholder of Sberbank Slovenia or Sberbank Croatia, has no grounds to claim that it holds property and management rights in respect of those entities.
44 It also follows from the foregoing considerations that the applicant has no grounds for arguing that its freedom to conduct a business and its right to property, enshrined in Articles 16 and 17 of the Charter, have been affected by the contested decision.
45 In the fourth place, the applicant refers to a series of rights relating to the management of Sberbank Europe ‘as an integral part of the Sberbank Europe group’ that it purportedly had and which have been affected by the contested decision. In particular, the applicant refers to its right to implement Sberbank Europe’s development strategy, to decide on its business planning, and to manage the liquidity, operational and legal risks of that credit institution.
46 That line of argument must be rejected since, as has already been observed, a decision not to adopt a resolution scheme in respect of a credit institution does not affect the rights of shareholders relating to the management of that institution. That finding is not called into question by the fact that Sberbank Europe and its subsidiaries form the Sberbank Europe group. The contested decision concerns Sberbank Europe alone, not other entities forming that group.
47 In the fifth place, it is necessary to reject the applicant’s argument that the contested decision directly affected its right to assess itself whether it was appropriate to adopt a resolution scheme in respect of the Sberbank Europe group. Regulation No 806/2014 creates a single resolution mechanism under which uniform rules and a uniform procedure are to be applied by the SRB together with the Council, the Commission and the national resolution authorities (see Article 1 of the abovementioned regulation). It is not apparent from the applicable regulation that the adoption or otherwise of a resolution scheme falls within the competence of the shareholders of the entities concerned or of private operators in general. The line of argument put forward by the applicant therefore does not demonstrate that the contested decision directly affects its legal situation.
48 In the light of all the foregoing considerations, it must be held that the applicant is not directly concerned by the contested decision, for the purposes of the fourth paragraph of Article 263 TFEU. It follows that its claim for annulment of that decision must be dismissed as inadmissible.
49 That finding is not challenged by the applicant’s argument that dismissal of its action as inadmissible would be contrary to the system of judicial protection established by the FEU Treaty and would infringe the right to an effective remedy provided for in Article 47 of the Charter. It is apparent from settled case-law that that article is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions before the Courts of the European Union (see judgment of 9 November 2017, SolarWorld v Council, C‑205/16 P, EU:C:2017:840, paragraph 67 and the case-law cited).
50 Given that the present action is inadmissible, there is no need to rule on the application to intervene made by the ECB (see order of 27 October 2015, Belgium v Commission, T‑721/14, EU:T:2015:829, paragraph 86 and the case-law cited).
Costs
51 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
52 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the SRB, in accordance with the form of order sought by the latter, with the exception of those relating to the application to intervene made by the ECB.
53 Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the applicant, the SRB and the ECB are each to bear their own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no need to rule on the application to intervene made by the European Central Bank (ECB).
3. Sberbank of Russia PAO shall bear its own costs and pay those incurred by the Single Resolution Board (SRB), with the exception of those relating to the application to intervene.
4. Sberbank of Russia, the SRB and the ECB shall each bear their own costs relating to the application to intervene.
Luxembourg, 10 October 2023.
V. Di Bucci | | K. Kowalik-Bańczyk |