ORDER OF THE GENERAL COURT (Seventh Chamber)
8 September 2023 (*)
(Action for annulment – Economic and monetary policy – Single Resolution Mechanism for credit institutions and certain investment firms (SRM) – Resolution procedure applicable where an entity is failing or is likely to fail – Adoption of a resolution scheme – Identification of the defendant – Partial inadmissibility)
In Case T‑524/22,
MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, initially Sberbank Europe AG, established in Vienna (Austria), represented by O. Behrends, lawyer,
applicant,
v
Council of the European Union, represented by A. Westerhof Löfflerová and J. Haunold, acting as Agents,
European Commission, represented by D. Triantafyllou and A. Nijenhuis, acting as Agents,
and
Single Resolution Board (SRB), represented by K.-P. Wojcik, H. Ehlers, L. Forestier and J. Rius Riu, acting as Agents, and by B. Meyring, S. Schelo and S. Ianc, lawyers,
defendants,
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 Court Registry on 19 August 2022,
– the plea of inadmissibility put forward by the Council by separate document lodged at the Court Registry on 16 December 2022,
– the applicant’s observations on the plea of inadmissibility, lodged at the Court Registry on 6 March 2023,
makes the following
Order
1 By its action based on Article 263 TFEU, the applicant, MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, initially Sberbank Europe AG, seeks the annulment of Decision SRB/EES/2022/21 of the Single Resolution Board (SRB) of 1 March 2022 concerning the adoption of a resolution scheme in respect of Sberbank d.d., in accordance with Article 18(6) 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) and, as a precaution ‘[the annulment of] the Commission’s and the Council’s approval of such decision’.
Background to the dispute
2 The applicant was a credit institution established in Austria. It held 100% of the shares in Sberbank d.d., a credit institution established in Croatia (‘Sberbank Croatia’).
3 As a result of geopolitical tensions between the Russian Federation and Ukraine, which culminated in the former invading the latter’s territory on 24 February 2022, the liquidity situation of the applicant and Sberbank Croatia deteriorated.
4 On 1 March 2022, the SRB adopted Decision SRB/EES/2022/21 concerning the adoption of a resolution scheme in respect of Sberbank Croatia, in accordance with Article 18(6) of Regulation (EU) No 806/2014. The resolution scheme provided inter alia for the transfer of the shares in Sberbank Croatia to Hrvatska Poštanska Banka d.d.
5 Also on 1 March 2022, the European Commission adopted Decision (EU) 2022/948 endorsing the resolution scheme for Sberbank Croatia (OJ 2022 L 164, p. 65), in accordance with the second subparagraph of Article 18(7) of Regulation No 806/2014.
Forms of order sought
6 The applicant claims that the Court should:
– annul, where appropriate, the approval by the Council of the European Union of the resolution scheme in respect of Sberbank Croatia;
– dismiss the Council’s plea of inadmissibility;
– not order the applicant to pay the costs.
7 The Council contends that the Court should:
– dismiss the action as inadmissible in so far as it is directed against it;
– order the applicant to pay the costs.
Law
8 Under Article 130(1) and (7) of the Rules of Procedure of the General Court, on the application of the defendant, the Court may give a ruling on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Council has requested a ruling on the inadmissibility of the action, the Court, considering that it has sufficient information from the documents in the file, has decided to rule on that application without taking further steps in the proceedings.
9 The Council contends that the action must be dismissed as inadmissible in so far as it is directed against it, since it is not the author of any measure relating to the resolution procedure concerning Sberbank Croatia that may be challenged under Article 263 TFEU.
10 The applicant submits, in essence, that the action is admissible in so far as it is directed against the Council.
11 In that regard, it should be borne in mind that, as a general rule, actions must be directed against the body which enacted the contested measure (judgment of 8 October 2008, Sogelma v EAR, T‑411/06, EU:T:2008:419, paragraph 49; orders of 27 March 2017, Frank v Commission, T‑603/15, not published, EU:T:2017:228, paragraph 67, and of 14 June 2018, Cambra Abaurrea v Parliament and Others, T‑553/17, not published, EU:T:2018:371, paragraph 12) and that an action for annulment under Article 263 TFEU must be declared inadmissible in so far as it concerns a defendant which is not the author of the contested measure (judgment of 12 June 2015, Plantavis and NEM v Commission and EFSA, T‑334/12, EU:T:2015:376, paragraph 20).
12 In the present case, it should be noted that, under points (a) to (c) of the first subparagraph of Article 18(1) of Regulation No 806/2014, the SRB may adopt a resolution scheme only if it considers that three conditions are met, namely (i) the entity is failing or is likely to fail, (ii) there is no reasonable prospect that any alternative measures would prevent its failure within a reasonable timeframe and (iii) a resolution action is necessary in the public interest within the meaning of Article 18(5) of that regulation.
13 Article 18(6) of Regulation No 806/2014 provides that, if the three abovementioned conditions are met, the SRB is to adopt a resolution scheme. That scheme is to place the entity in question under resolution, determine the application of the resolution tools and determine the use of the Single Resolution Fund (SRF) to support the resolution action.
14 The first and second subparagraphs of Article 18(7) of Regulation No 806/2014 provide for the Commission to participate in the resolution procedure as follows:
‘Immediately after the adoption of the resolution scheme, the [SRB] shall transmit it to the Commission.
Within 24 hours from the transmission of the resolution scheme by the [SRB], the Commission shall either endorse the resolution scheme, or object to it with regard to the discretionary aspects of the resolution scheme in the cases not covered in the third subparagraph of this paragraph.’
15 The third subparagraph of Article 18(7) of Regulation No 806/2014 provides for the Council to participate in the resolution procedure as follows:
‘Within 12 hours from the transmission of the resolution scheme by the [SRB], the Commission may propose to the Council:
(a) to object to the resolution scheme on the ground that the resolution scheme adopted by the [SRB] does not fulfil the criterion of public interest …;
(b) to approve or object to a material modification of the amount of the [SRF] provided for in the resolution scheme of the [SRB].’
16 It is thus apparent from the third subparagraph of Article 18(7) of Regulation No 806/2014 that the Council’s participation in the resolution procedure is not automatic and that it is limited to two situations exhaustively defined in the abovementioned provision (see, to that effect, order of 14 June 2018, Cambra Abaurrea v Parliament and Others, T‑553/17, not published, EU:T:2018:371, paragraph 15).
17 In the present case, it must be held that neither of the two situations defined in the third subparagraph of Article 18(7) of Regulation No 806/2014 arose. Since the Commission endorsed the resolution scheme (see paragraph 5 above), it did not propose to the Council to object to that scheme or to approve or object to a material modification to the amount of the SRF provided for in that scheme. Moreover, the resolution scheme adopted in respect of Sberbank Croatia does not provide for recourse to that fund.
18 In the application, the applicant states that it has brought the present action against the Council ‘as a precaution’, should the latter be the ‘ultimate decision-maker’ and the real author of Decision SRB/EES/2022/21 of the SRB. However, the applicant does not identify any specific measure allegedly adopted by the Council in the present case. Likewise, in the observations on the plea of inadmissibility, it does not demonstrate the existence of a measure adopted, in the present case, by the Council that may be the subject of an action for annulment.
19 It must, therefore, be found that the Council is not the author of any measure adopted concerning the resolution scheme in respect of Sberbank Croatia that may be the subject of an action for annulment under Article 263 TFEU.
20 In the light of the foregoing considerations, it must be concluded that the plea of inadmissibility must be upheld and that the action must be dismissed as inadmissible in so far as it is directed against the Council.
Costs
21 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.
22 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council relating to the plea of inadmissibility, in accordance with the form of order sought by the Council.
23 The applicant’s argument that it should not be ordered to pay the costs inasmuch as it brought the action against the Council in order to avoid any legal risk linked to the fact that the identity of the author of Decision SRB/EES/2022/21 was unclear cannot be accepted. It is sufficient to note that, on the date on which the present action was brought, namely 19 August 2022, the applicant must have been aware not only of the abovementioned decision which clearly stated that its author was the SRB, but also of Decision 2022/948, published on 20 June 2022 in the Official Journal of the European Union (see paragraph 5 above), which endorsed the resolution scheme for Sberbank Croatia and, read in the light of Article 18 of Regulation No 806/2014, thus showed the absence of any decision adopted by the Council concerning that scheme.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible in so far as it is directed against the Council of the European Union.
2. MeSoFa Vermögensverwaltungs AG shall bear its own costs and pay those incurred by the Council relating to the plea of inadmissibility.
Luxembourg, 8 September 2023.
V. Di Bucci | | K. Kowalik-Bańczyk |