Action brought on 19 September 2016 — Credito Fondiario v CRU

(Case T-661/16)

Language of the case: Italian

Parties

Applicant Credito Fondiario SpA (Rome, Italy) (represented by: F. Sciaudone, F. Iacovone, S. Frazzani and A. Neri, lawyers)

Defendant: Comitato di risoluzione unico

Form of order sought

The applicant claims that the Court should:

annul the first and second decision of the Single Resolution Board;

declare Article 5(1)(f) of Delegated Regulation (EU) No 2015/63, on which the contested decisions are based, incompatible with the principles of equal treatment, proportionality and legal certainty recognised by the Charter of Fundamental Rights of the European Union;

declare Annex I to Delegated Regulation (EU) No 2015/63, on which the contested decisions are based, incompatible with the principles of equal treatment, proportionality and legal certainty recognised by the Charter of Fundamental Rights of the European Union;

declare Delegated Regulation (EU) No 2015/63, on which the contested decisions are based, incompatible with the principle of freedom to conduct a business recognised by the Charter of Fundamental Rights of the European Union;

order the Single Resolution Board to pay the costs.

Pleas in law and main arguments

The present action concerns decisions of the executive session of the Single Resolution Board SRB/ES/SRF/2016/06 of 15 April 2016 (first decision) and SRB/ES/SRF/2016/13 of 20 May 2016 (second decision) which determine, in so far as concerns the applicant, the ex ante contribution provided for by Delegated Regulation (EU) 2015/63 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).

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

First plea in law: failure to notify the first and second decision

The Banca d’Italia did not notify the applicant of the two decisions adopted by the Board, as required by Article 5 of Council Implementing Regulation (EU) No 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1), but merely communicated the amount of the payment thereby undermining the applicant’s right to bring proceedings in time. The Board did not take due care as regards the notification.

Second plea in law: infringement of the second paragraph of Article 296 TFEU for failure to state reasons and infringement of the rule audi alteram partem in respect of decisions relating to ex ante contributions

The contested decisions do not explain how the ex ante contribution was in fact calculated, thereby prejudicing the effective application of the review of the legality and validity of the decision by the applicant.

Third plea in law: incorrect application of Article 5(1)(f) of Delegated Regulation (EU) No 2015/63.

The ex ante contribution required of Credito Fondiario is disproportionate to the institution’s risk profile, and is the result of an incorrect assessment of the institution’s liabilities.

Fourth plea in law: infringement of Article 4(1) and Article 6 of Delegated Regulation (EU) No 2015/63. Incorrect assessment of the risk profile of Credito Fondiario.

On 31 December 2014, Credito Fondiario had a low risk profile, on the basis of parameters laid down in Article 4(1) and Article 6 of Delegated Regulation (EU) No 2015/63. The contribution calculated by the Board is that of an institution with a high risk profile and is the result of the Board’s failure to take into consideration the criteria for defining and reducing risk laid down in those articles.

Fifth plea in law: infringement of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Equal treatment

Article 5(1)(f) of Delegated Regulation (EU) No 2015/63 and Annex I thereto infringe the principle of equal treatment, in that they provide for discriminatory treatment in the sector concerned.

Sixth plea in law: infringement of the principle of proportionality and legal certainty.

Because the decisions do not take into account the applicant’s lower risk profile, they impose an ex ante contribution corresponding to an institution with a high risk profile, thereby infringing the principles of proportionality and legal certainty.

Seventh plea in law: infringement of Article 16 of the Charter of Fundamental Rights of the European Union — Freedom to conduct a business

By imposing stricter requirements than those laid down by European banking legislation and 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), Delegated Regulation (EU) No 2015/63, as regards the institution’s risk assessment, infringes the principles of equal treatment, legal certainty and freedom to conduct a business by introducing discretionary elements into the calculation of the ex ante contribution.

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