Action brought on 5 July 2019 — NRW. Bank v SRB

(Case T-478/19)

(2019/C 305/68)

Language of the case: German

Parties

Applicant: NRW. Bank (Düsseldorf, Germany) (represented by: D. Flore and J. Seitz, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

— annul the defendant’s decision of 16 April 2019, including the annex thereto, on the calculation of the ex ante contributions to the Single Resolution Fund for 2019 and the calculation details, in so far as they concern the applicant with the institution identification number DE05740;

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

Pleas in law and main arguments

The action is brought against the Single Resolution Board’s decision of 16 April 2019 (SRB/ES/SRF/2019/10), including the annex thereto, on the calculation of the ex ante contributions to the Single Resolution Fund for 2019 and the calculation details, in so far as they concern the applicant with the institution identification number DE05740.

In support of the action, the applicant invokes five pleas in law.

1. First plea, alleging that the contested decision should be annulled in the absence of an adequate statement of reasons — The applicant claims that, under the second paragraph of Article 263 TFEU, the contested decision should be annulled simply because the defendant infringed essential formal requirements when it adopted the contested decision. The contested decision lacks an adequate statement of reasons, which is, however, mandatorily required under the second paragraph of Article 296 TFEU.

2. Second plea, alleging that the contested decision infringes Delegated Regulation (EU) 2015/63, (1) which is to be interpreted in the light of higher-ranking law — The applicant claims in this regard that it follows from the required interpretation of Delegated Regulation (EU) 2015/63 in the light of Directive 2014/59/EU (2) and of Regulation (EU) No 806/2014 (3) that the defendant’s setting of contributions necessarily has to be oriented towards the risk profile, something which was not done properly by the defendant. Moreover, the defendant must, when interpreting Delegated Regulation (EU) 2015/63, have regard for the objective set out in Directive 2014/59/EU and in Regulation (EU) No 806/2014 of protecting public budgets, which the defendant did not do. The contested decision also infringes the general principle of equality. Furthermore, the defendant’s application of the calculation methodology in the case of internet bank loans is contrary to Delegated Regulation (EU) 2015/63 and Regulation (EU) No 806/2014.

3. Third plea, alleging, in the alternative, that Article 5(1)(f) of Delegated Regulation (EU) 2015/63 infringes higher-ranking law — The applicant submits that, should an interpretation of Article 5(1)(f) of Delegated Regulation (EU) 2015/63 that is consistent with higher-ranking law, that is to say, with Regulation (EU) No 806/2014, Directive 2014/59/EU and the general principle of equality, not be possible, Article 5(1)(f) of Delegation Regulation (EU) 2015/63 infringes higher-ranking law, is unlawful and should not have been applied by the defendant.

4. Fourth plea, alleging, in the alternative, that the calculation methodology in Delegated Regulation (EU) 2015/63 infringes higher-ranking law — The applicant claims that, should the defendant have applied the calculation methodology in accordance with Delegated Regulation (EU) 2015/63, the calculation methodology set out in Delegated Regulation (EU) 2015/63 itself infringes higher-ranking law. The calculation methodology in Delegated Regulation (EU) 2015/63 does not meet the requirements of the general principle of equality or the mandatorily required orientation towards the risk profile under Regulation (EU) No 806/2014 and Directive 2014/59/EU.

5. Fifth plea, alleging that the contested decision infringes Article 8(2) of Implementing Regulation (EU) 2015/81 (4) — By the fifth plea, the applicant submits that, on the basis of Article 8(2) of Implementing Regulation (EU) 2015/81, the defendant should have deducted the entire outstanding amount of the contribution paid by the applicant in 2015 and already transferred into the Single Resolution Fund (SRF), in view of the fact that the applicant now falls outside the scope of application of Regulation (EU) No 806/2014.

(1) 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).

(2) 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).

(3) 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).

(4) Council Implementing Regulation (EU) 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).