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 – Adoption by the SRB of a resolution scheme – Endorsement decision by the Commission – Lack of direct concern – Inadmissibility)
In Case T‑526/22,
Sberbank of Russia PAO, established in Moscow (Russia), represented by D. Rovetta, M. Campa, M. Pirovano, M. Moretto and V. Villante, lawyers,
applicant,
v
European Commission, represented by D. Triantafyllou and A. Nijenhuis, acting as Agents,
and
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,
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, and in particular:
– the application lodged at the Registry of the General Court on 20 August 2022,
– the plea of inadmissibility raised by the Commission by separate document lodged at the Court Registry on 13 October 2022,
– the defence, lodged by the SRB at the Court Registry on 25 November 2022,
– the applicant’s observations on the plea of inadmissibility, lodged at the Court Registry on 23 December 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,
– the application for leave to intervene made by the European Central Bank (ECB), lodged at the Court Registry on 25 November 2022,
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/2022/20 of the Single Resolution Board (SRB) of 1 March 2022 on the adoption of a resolution scheme in respect of Sberbank banka d.d. (‘the decision on the adoption of a resolution scheme’), (ii) of Valuation Reports 1 and 2 in relation to Sberbank banka d.d., drawn up by the SRB on 27 and 28 February 2022 respectively, and (iii) of Commission Decision (EU) 2022/947 of 1 March 2022 endorsing the resolution scheme for Sberbank banka d.d. (OJ 2022 L 164, p. 63; ‘the endorsement decision’).
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, including Sberbank banka d.d., a credit institution established in Slovenia (‘Sberbank Slovenia’). Sberbank Europe held 99.99% of the shares in Sberbank Slovenia.
4 Sberbank Europe and its subsidiaries, including Sberbank Slovenia, formed a group (‘the Sberbank Europe group’).
5 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 Slovenia’s liquidity situation deteriorated, owing, inter alia, to a wave of significant withdrawals of deposits.
6 On 27 February 2022, the European Central Bank (ECB), in accordance with the second and third subparagraphs 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), found that Sberbank Slovenia 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 its final failing or likely to fail assessment in respect of that institution to the SRB.
7 On 27 February 2022, the SRB adopted Valuation Report 1 regarding Sberbank Slovenia for the purpose of determining, 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 Slovenia was failing or likely to fail, within the meaning of Article 18(1)(a) of Regulation No 806/2014.
8 On 27 February 2022, the SRB ordered the suspension of Sberbank Slovenia’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).
9 On 28 February 2022, the SRB, in accordance with Article 20(5)(f) of Regulation No 806/2014, adopted Valuation Report 2 with regard to Sberbank Slovenia, the objective of which was to provide it with the information necessary for the adoption of a decision on the transfer of the shares in that credit institution to a potential buyer.
10 On 1 March 2022, the SRB adopted the decision on the adoption of a resolution scheme in respect of Sberbank Slovenia.
11 Article 2 of the decision on the adoption of a resolution scheme provided that Sberbank Slovenia was to be placed under resolution. Articles 3 and 4 stated that the resolution tool to be applied would be the sale of business tool and that that sale would take the form of a transfer of the shares in Sberbank Slovenia to Nova Ljubljanska Banka d.d. Article 7(1) stated that the abovementioned decision was addressed to the Bank of Slovenia, while Article 7(2) stated that that latter institution was instructed to take the necessary action to implement that decision, in accordance with national law.
12 On 1 March 2022, the European Commission, acting in accordance with the second subparagraph of Article 18(7) of Regulation No 806/2014, adopted the endorsement decision. That decision was addressed to the SRB.
Submissions by the parties on the admissibility of the action
13 In its observations on the plea of inadmissibility, the applicant claims that the Court should:
– dismiss the plea of inadmissibility and declare the action admissible;
– in the alternative, join the plea of inadmissibility to the merits;
– order the Commission and the SRB to bear the costs.
14 In its reply to the written question put by the Court, the applicant also claims that the Court should declare the action admissible.
15 In the plea of inadmissibility, the Commission contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
16 In the defence, the SRB contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
17 Under Article 130(1) and (7) of the Rules of Procedure of the General Court, the Court may, if the defendant so applies, decide on inadmissibility or lack of competence without going to the substance of the case. In addition, under Article 129 of the Rules of Procedure, 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, while under Article 126 thereof, where the 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.
18 In the present case, the Commission, in accordance with Article 130(1) of the Rules of Procedure, has applied for a decision on the inadmissibility of the action. In addition, the SRB, in the defence, has raised a plea that the action is inadmissible.
19 The Court, applying Articles 126, 129 and 130 of the Rules of Procedure, has decided to rule on the admissibility of the action in the present order.
20 The Commission denies that the endorsement decision is of direct concern to the applicant, within the meaning of the fourth paragraph of Article 263 TFEU. It also submits that the decision on the adoption of a resolution scheme constitutes a preparatory step leading to the endorsement decision and that it may be challenged only at the same time as the latter decision.
21 The SRB denies that the applicant is directly concerned by the decision on the adoption of a resolution scheme.
22 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 Reports 1 and 2 and, second, against the decision on the adoption of a resolution scheme and the endorsement decision (together, ‘the resolution decisions’).
Admissibility of the action in so far as it is directed against Valuation Reports 1 and 2
23 As regards Valuation Reports 1 and 2, it should be noted that 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; it is not subject to a separate right of appeal, but may be subject to an appeal together with the decision of the SRB.
24 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 on the resolution of the credit institutions in question.
25 It follows that Valuation Reports 1 and 2 are not challengeable acts and that, consequently, the applicant’s claim for annulment of those reports 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 resolution decisions
26 In the circumstances of the present case, the Court considers that there is no need to examine whether the decision on the adoption of a resolution scheme constitutes a preparatory act which is not open to challenge by an action for annulment, as the Commission maintains, or whether, on the contrary, it is an act that produces its own legal effects and that may be the subject matter of an action.
27 By contrast, it is appropriate to examine at the outset whether the resolution decisions are of direct concern to the applicant, within the meaning of the fourth paragraph of Article 263 TFEU.
28 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.
29 Since the resolution decisions are not addressed to the applicant and they are, moreover, not regulatory acts, it must show that those decisions are of direct concern to it.
30 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).
31 The Commission and the SRB argue, in essence, that the first criterion referred to above is not satisfied, namely that the resolution decisions do not directly affect the applicant’s legal situation.
32 In that regard, it should be observed that the resolution decisions provide, in essence, for the adoption of a resolution scheme in respect of Sberbank Slovenia consisting, inter alia, in the transfer of the shares in that credit institution to Nova Ljubljanska Banka.
33 The applicant is not a shareholder of Sberbank Slovenia and therefore has no right to dispose of the assets of that credit institution, to receive dividends and to participate in its management, since those rights belong to the shareholder of that institution, namely Sberbank Europe (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, paragraphs 110 and 111).
34 Moreover, the resolution decisions do not concern Sberbank Europe, which is a separate legal person from Sberbank Slovenia, and, therefore, they do not affect any legal right available to the applicant in respect of that credit institution in its capacity as a shareholder.
35 It must therefore be held that the resolution decisions do not directly affect the applicant’s legal situation for the purposes of the case-law cited in paragraph 30 above.
36 The arguments put forward by the applicant do not call that finding by the Court into question.
37 In the first place, the applicant refers to the fact that it holds all of the shares in Sberbank Europe, which holds 99.99% of the shares in Sberbank Slovenia, and that it therefore constitutes the ultimate parent company controlling the Sberbank Europe group. The applicant submits that it holds property rights in respect of Sberbank Slovenia and that those property rights have been affected owing to the de facto expropriation to which that credit institution has been subjected by means of the resolution decisions.
38 That argument cannot be accepted since the applicant, not being a shareholder of Sberbank Slovenia, is not justified in claiming that it has property rights in respect of that credit institution. From a legal standpoint, those property rights belong to Sberbank Europe, which is a separate legal person from the applicant.
39 In the second place, the applicant submits that the forced sale of Sberbank Slovenia resulted in a decrease in the assets of Sberbank Europe, which led to a fall in the value of the shares that the applicant holds in the capital of Sberbank Europe. The applicant argues that that circumstance shows that it is directly concerned by the resolution decisions.
40 It must be held that that line of argument does not demonstrate that the applicant’s legal situation has been affected, but serves to demonstrate the existence of the economic effects on its situation caused by the resolution decisions (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, paragraphs 109 to 111). Consequently, that line of argument must be rejected.
41 In the third place, the applicant submits that it managed the Sberbank Europe group and that that management with respect to the group affected the management of Sberbank Slovenia as an entity belonging to that group. In that context, the applicant submits, providing supporting documents, that it was responsible for the group’s business plans and its risk management policies. The applicant also argues that it had the right to authorise – or to oppose – the acquisition or the sale of shareholdings in the companies in the Sberbank Europe group.
42 In the same context, the applicant submits that it had the right to designate members of Sberbank Slovenia’s supervisory board and thus to influence its strategy.
43 According to the applicant, the management powers that it had with respect to Sberbank Slovenia were affected by the resolution decisions, which provided for the transfer of the shares in that credit institution.
44 That line of argument from the applicant can likewise not be accepted.
45 As has already been observed, since the applicant is not a shareholder of Sberbank Slovenia, it is not able, in legal terms, to participate in its management. Only the shareholders of that credit institution, in this case Sberbank Europe, participate in that management. That is confirmed by Sberbank Slovenia’s articles of association, submitted to the Court by the applicant. In particular, Article 15 thereof states that the general meeting of shareholders of that credit institution is to elect the members of its supervisory board, while Article 24 of the articles of association provides that the members of the supervisory board are to appoint the members of the management board and its chairperson.
46 It is thus apparent that any influence that the applicant could have in the management of Sberbank Slovenia was merely the result of a de facto situation, namely the control it exercised over Sberbank Europe, and not of a legal situation. Moreover, the applicant itself stated, in footnote 3 to its reply to the Court’s written question, that it was able to appoint its representatives to Sberbank Slovenia’s supervisory board ‘through Sberbank Europe’.
47 Furthermore, the various documents to which the applicant refers in its pleadings in order to corroborate its arguments relating to its management powers in respect of Sberbank Slovenia present the risk management policy of the Sberbank Europe group and do not disclose the existence of rights and obligations on the part of the applicant in relation to Sberbank Slovenia.
48 It follows from the foregoing that since the applicant does not hold any management rights in respect of Sberbank Slovenia, the resolution decisions are not capable of affecting the existence and content of such rights.
49 In the fourth place, it is necessary to reject the applicant’s argument that its being directly concerned by the resolution decisions is demonstrated by the fact that it took part in the financing of Sberbank Slovenia. In fact, that line of argument is capable of demonstrating, at most, an effect on the applicant’s economic situation and not an effect on its legal situation.
50 In the light of all the foregoing considerations, it must be held that the applicant is not directly concerned by the resolution decisions, for the purposes of the fourth paragraph of Article 263 TFEU. It follows that the applicant’s claim for annulment of those decisions must be dismissed as inadmissible.
51 In those circumstances, since the action has been dismissed in its entirety as inadmissible, there is no need to rule on the application to intervene submitted 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
52 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.
53 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission and the SRB, in accordance with the forms of order sought by the two defendants, with the exception of those relating to the application to intervene.
54 Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the applicant, the Commission, 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 European Commission and the Single Resolution Board (SRB), with the exception of those relating to the application to intervene.
4. Sberbank of Russia, the Commission, 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 |