# C_2019328EN.01005902.xml

| 30.9.2019 | EN | Official Journal of the European Union | C 328/59 |
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30.9.2019

EN

Official Journal of the European Union

C 328/59

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Action brought on 8 July 2019 — Landesbank Baden-Württemberg v SRB

(Case T-480/19)

(2019/C 328/69)

Language of the case: German

Parties

Applicant: Landesbank Baden-Württemberg (Stuttgart, Germany) (represented by: H. Berger and K. Rübsamen, 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 16 April 2019 on the calculation of the ex-ante contributions to the Single Resolution Fund for 2019 (SRB/ES/SRF/2019/10), including the annex thereto, in so far as the contested decision, including the annex thereto, concerns the applicant’s contribution; and |
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annul the decision of the Single Resolution Board of 16 April 2019 on the calculation of the ex-ante contributions to the Single Resolution Fund for 2019 (SRB/ES/SRF/2019/10), including the annex thereto, in so far as the contested decision, including the annex thereto, concerns the applicant’s contribution; and

| — | order the defendant to pay the costs of the proceedings. |
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order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law:

| 1. | First plea in law, alleging infringement of the second paragraph of Article 296 TFEU and of Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) due to the fact that the contested decision fails to state adequate reasons






  — | The applicant claims that the defendant Board has infringed its obligation to state reasons as the contested decision is inadequately reasoned and the annex consists merely of a set of figures from which it is not possible to determine, even to a limited degree, how and on the basis of what reasoning the defendant calculated the applicant’s contribution. The contested decision fails to do justice in any way whatsoever to the increased requirements to state reasons. The infringement of the obligation to state reasons is also material in that it influences the content of the contested decision. |
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1.

First plea in law, alleging infringement of the second paragraph of Article 296 TFEU and of Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) due to the fact that the contested decision fails to state adequate reasons

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The applicant claims that the defendant Board has infringed its obligation to state reasons as the contested decision is inadequately reasoned and the annex consists merely of a set of figures from which it is not possible to determine, even to a limited degree, how and on the basis of what reasoning the defendant calculated the applicant’s contribution. The contested decision fails to do justice in any way whatsoever to the increased requirements to state reasons. The infringement of the obligation to state reasons is also material in that it influences the content of the contested decision.

| 2. | Second plea in law, alleging infringement of the right to be heard under Article 41(1) and (2)(a) of the Charter due to the fact that the applicant was not given an opportunity to set out its views orally






  — | In addition, the defendant Board has infringed the applicant’s fundamental procedural right to be heard since it adopted the act that is legally detrimental to the applicant without having heard the applicant beforehand. The infringement of the right to be heard is material since, had the applicant submitted observations prior to the contested decision, the content of the calculation decision could have been different. |
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2.

Second plea in law, alleging infringement of the right to be heard under Article 41(1) and (2)(a) of the Charter due to the fact that the applicant was not given an opportunity to set out its views orally

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In addition, the defendant Board has infringed the applicant’s fundamental procedural right to be heard since it adopted the act that is legally detrimental to the applicant without having heard the applicant beforehand. The infringement of the right to be heard is material since, had the applicant submitted observations prior to the contested decision, the content of the calculation decision could have been different.

| 3. | Third plea in law, alleging infringement of the fundamental right to effective legal protection under the first paragraph of Article 47 of the Charter due to fact that the contested decision is not subject to review






  — | The applicant claims that the defendant Board has infringed the applicant’s fundamental right to effective legal protection since it is practically impossible to subject the contested decision to judicial review. Furthermore, the defendant has failed to ensure, to the greatest possible extent, compliance with the adversarial principle, in order to enable the applicant to contest the grounds on which the contested decision is based and, therefore, to put forward an effective defence. |
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3.

Third plea in law, alleging infringement of the fundamental right to effective legal protection under the first paragraph of Article 47 of the Charter due to fact that the contested decision is not subject to review

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The applicant claims that the defendant Board has infringed the applicant’s fundamental right to effective legal protection since it is practically impossible to subject the contested decision to judicial review. Furthermore, the defendant has failed to ensure, to the greatest possible extent, compliance with the adversarial principle, in order to enable the applicant to contest the grounds on which the contested decision is based and, therefore, to put forward an effective defence.

| 4. | Fourth plea in law, alleging infringement of Article 103(7)(h) of Directive 2014/59/EU, (1) of Article 113(7) of Regulation (EU) No 575/2013, (2) of the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, (3) of Articles 16 and 20 of the Charter and of the principle of proportionality due to the application of the multiplier for the IPS (Institutional Protection Scheme) Indicator






  — | The applicant claims that the defendant Board, in breach of Article 103(7)(h) of Directive 2014/59/EU, of Article 113(7) of Regulation (EU) No 575/2013, of the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, of Articles 16 and 20 of the Charter and of the principle of proportionality, has not fully applied the IPS Indicator to the applicant. The protection offered by an institutional protection scheme applies to all member institutions fully and equally. Discrimination between the institutions at the level of IPS-Indicators is inconsistent with that scheme and is arbitrary. |
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4.

Fourth plea in law, alleging infringement of Article 103(7)(h) of Directive 2014/59/EU, (1) of Article 113(7) of Regulation (EU) No 575/2013, (2) of the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, (3) of Articles 16 and 20 of the Charter and of the principle of proportionality due to the application of the multiplier for the IPS (Institutional Protection Scheme) Indicator

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The applicant claims that the defendant Board, in breach of Article 103(7)(h) of Directive 2014/59/EU, of Article 113(7) of Regulation (EU) No 575/2013, of the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, of Articles 16 and 20 of the Charter and of the principle of proportionality, has not fully applied the IPS Indicator to the applicant. The protection offered by an institutional protection scheme applies to all member institutions fully and equally. Discrimination between the institutions at the level of IPS-Indicators is inconsistent with that scheme and is arbitrary.

| 5. | Fifth plea in law, alleging infringement of Article 16 of the Charter and of the principle of proportionality due to the application of the risk adjustment multiplier






  — | The applicant also relies on the fact that the defendant Board has infringed its freedom to conduct a business and the principle of proportionality, in so far as it calculated risk adjustment multipliers that are incompatible with the applicant’s risk profile, which, relative to the other contributor-institutions, is better than average. The risk that the applicant might become a bank in resolution and use the funds of the Single Resolution Fund (SRF) is very low, it being the task of the risk adjustment multiplier, which is supposed to reflect adequately the individual risk, to take into account that probability. |
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5.

Fifth plea in law, alleging infringement of Article 16 of the Charter and of the principle of proportionality due to the application of the risk adjustment multiplier

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The applicant also relies on the fact that the defendant Board has infringed its freedom to conduct a business and the principle of proportionality, in so far as it calculated risk adjustment multipliers that are incompatible with the applicant’s risk profile, which, relative to the other contributor-institutions, is better than average. The risk that the applicant might become a bank in resolution and use the funds of the Single Resolution Fund (SRF) is very low, it being the task of the risk adjustment multiplier, which is supposed to reflect adequately the individual risk, to take into account that probability.

| 6. | Sixth plea in law, alleging the illegality of Articles 4 to 7 and Article 9 of Delegated Regulation (EU) 2015/63 and of Annex I to that delegated regulation






  — | Finally, the contested decision should also be annulled since Articles 4 to 7 and Article 9 of Delegated Regulation (EU) 2015/63 and Annex I to that delegated regulation infringe the principle of effective legal protection and the principle of legal certainty. The applicant can claim indirectly under Article 277 TFEU that the legal basis of the contested decision infringes superior EU law. Article 277 TFEU expresses the general principle that the illegality of a legal basis has an effect on the individual decision adopted on the basis thereof. |
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6.

Sixth plea in law, alleging the illegality of Articles 4 to 7 and Article 9 of Delegated Regulation (EU) 2015/63 and of Annex I to that delegated regulation

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Finally, the contested decision should also be annulled since Articles 4 to 7 and Article 9 of Delegated Regulation (EU) 2015/63 and Annex I to that delegated regulation infringe the principle of effective legal protection and the principle of legal certainty. The applicant can claim indirectly under Article 277 TFEU that the legal basis of the contested decision infringes superior EU law. Article 277 TFEU expresses the general principle that the illegality of a legal basis has an effect on the individual decision adopted on the basis thereof.

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(1)  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).

(2)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 646/2012. Text with EEA relevance (OJ 2013 L 176, p. 1).

(3)  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).

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