Action brought on 10 January 2021 — IFIC Holding v Commission

(Case T-8/21)

(2021/C 62/61)

Language of the case: German

Parties

Applicant: IFIC Holding AG (Düsseldorf, Germany) (represented by: C. Franz and N. Bornemann, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul European Commission Decision C(2020) 2813 final of 28 April 2020;

— order the defendant to bear the costs of the proceedings.

Pleas in law and main arguments

The action is directed against Commission Implementing Decision C(2020) 2813 final of 28 April 2020 granting an authorisation to Clearstream Banking AG pursuant to the second paragraph of Article 5 of Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.

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

1. First plea in law: Infringement of the right to be heard pursuant to Article 41(1) and (2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’). — In accordance with Article 41(1) and (2)(a) of the Charter, every (natural or legal) person has a right to a fair administrative procedure and to be heard, before any measure which would affect him or her adversely is taken. — The Commission infringed that essential procedural requirement, as it did not notify the applicant or hear it at any time in writing or orally, nor did it give the applicant the opportunity to comment.

2. Second plea in law: Infringement of the scope of the second paragraph of Article 5 of Council Regulation (EC) No 2271/96 (1), Commission Implementing Regulation (EU) 2018/1101 (2) and the guidance on the application of the regulation referred to above (3). — The defendant infringed the provisions and the scope of Article 5 of Regulation No 2271/96 and higher-ranking EU law in that it granted the authorisation at issue, in the form of the contested decision, to the authorisation applicant retroactively for a previously existing situation. — Such retroactive effect or subsequent consent infringes EU law, in particular the judicial and procedural principles, which guarantee transparency, legal certainty and the protection of legitimate expectations. — Neither the regulation nor Implementing Regulation (EU) 2018/1101 based thereon provide for such retroactive effect. Subsequent retroactive authorisation is not recognised under EU law.

3. Third plea in law: Infringement of the obligation to state reasons and the principle of transparency and legal certainty. — The defendant infringed its obligation to state reasons and the principle of transparency and legal certainty enshrined in the fundamental procedural and judicial rights. — The temporal and material scope of Article 1 of the implementing decision is completely indeterminate. Based on the wording, it could apply retroactively for an indeterminate period. — The wording of Article 1 is indeterminate, in particular with regard to ‘Substantial grounds for suspicion’ and ‘Services’. It is unclear to the party concerned under what circumstances and in what period the authorisation applicant may take measures to its detriment, and what the connection is between those measures and the ‘Services’. It is not specified what is meant by ‘Services’ and whether those services may also cover activities of third parties.

4. Fourth plea in law: Error of assessment or error in the exercise of discretion contrary to higher-ranking EU law in the form of general procedural, judicial and legal principles. — The defendant exercised its discretion improperly in that it totally neglected to take into consideration the position of the applicant or the consequences of the decision for the applicant. — The applicant was not afforded the opportunity to comment on the grounds for suspicion and, in accordance with Article 1 of the decision, will not be heard in the future, so that it has no means of defence against the decisions of the authorisation applicant. — The fact that the applicant exercised its fundamental procedural right, protected under constitutional and EU law, to bring an action against the authorisation applicant before national courts may not be taken into consideration in the exercise of discretion. The defendant thus exceeded its margin of discretion. — The defendant did not include less onerous measures and rights to compensation in its considerations, despite this being absolutely necessary in order adequately to weigh up those considerations and make an assessment.

(1) Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (OJ 1996 L 309, p. 1).

(2) Commission Implementing Regulation (EU) 2018/1101 of 3 August 2018 laying down the criteria for the application of the second paragraph of Article 5 of Council Regulation (EC) No 2271/96 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (OJ 2018 L 199I, p. 7 ).

(3) Guidance Note — Questions and Answers: adoption of update of the Blocking Statute (2018/C 277 I/03) (OJ 2018 C 277I, p. 4 ).