Action brought on 21 June 2021 – Hypo Vorarlberg Bank v SRB
(Case T-347/21)
Language of the case: German
Parties
Applicant: Hypo Vorarlberg Bank AG (Bregenz, Austria) (represented by: G. Eisenberger and A. Brenneis, 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 any event in so far as that decision, including the annexes thereto, concerns the contribution to be made by the applicant;
stay the proceedings pursuant to Article 69(c) or (d) of the Rules of Procedure of the General Court pending final resolution of (joined) Cases C-584/20 P 1 and C-621/20 P, 2 C-663/20 P 3 and C-664/20 P, 4 since the legal issues are largely the same in those proceedings, which have already been pending for some time;
order the Single Resolution Board to pay the costs of the proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on five pleas in law.
First plea in law, alleging infringement of essential procedural requirements due to a lack of full disclosure of the contested decision
The contested decision was not fully disclosed to the applicant, contrary to paragraph 2 of Article 1 TEU, Articles 15, 296 and 298 TFEU and Articles 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Knowledge of the information that was not communicated is necessary, as a central component of the decision, in order to be able to understand and check the contribution calculations.
Second plea in law, alleging infringement of essential procedural requirements on account of an inadequate statement of reasons for the contested decision
The contested decision infringes the obligation to state reasons under paragraph 2 of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter because only a small number of selected partial calculation results were disclosed. As regards the defendant’s discretionary powers, it was not explained which assessments the defendant made and for what reasons.
Third plea in law, alleging infringement of essential procedural requirements due to the absence of a hearing and the failure to observe the right be heard
The applicant was not granted the right to be heard either before the contested decision was adopted or before the contribution notice based on that decision was issued, contrary to Article 41(1) and (2)(a) of the Charter. Nor did the newly introduced consultation procedure create an effective opportunity to submit comments.
Fourth plea in law, alleging unlawfulness of Delegated Regulation (EU) 2015/63 5 as a legal basis for the contested decision and unlawfulness of the risk adjustment methodology set out in Delegated Regulation (EU) 2015/63
In the context of the fourth plea, the applicant submits that Articles 4 to 7 and Article 9 of, and Annex I to, Delegated Regulation 2015/63 – on which the contested decision was based – create a non-transparent system for determining contributions which is contrary to Articles 16, 17, 41 and 47 of the Charter and under which compliance with Articles 20 and 21 of the Charter and observance of the principles of proportionality and legal certainty are not guaranteed.
Fifth plea in law, alleging unlawfulness of Directive 2014/59/EU 6 and Regulation (EU) No 806/2014 7 as a legal basis for Delegated Regulation (EU) 2015/63 and therefore for the contested decision
In the alternative, the applicant, in its fifth plea, challenges as unlawful those provisions of Directive 2014/59/EU and Regulation (EU) No 806/2014 which determine the contribution system implemented by Delegated Regulation 2015/63 and are not capable of being interpreted in conformity with primary law, and are therefore contrary to the principle of providing reasons for legal acts, the principle of legal certainty, the Treaties (in particular paragraph 2 of Article 1 TEU, Articles 15, 296 and 298 TFEU) and the Charter (in particular Articles 16, 17, 41, 42 and 47 of the Charter).
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1 OJ 2020 C 423, p. 32.
2 OJ 2020 C 443, p. 17.
3 OJ 2020 C 44, p. 33.
4 OJ 2020 C 44, p. 35.
5 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).
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).
7 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).