Appeal brought on 4 August 2020 by Ernests Bernis, Oļegs Fiļs, OF Holding SIA and Cassandra Holding Company SIA against the order of the General Court (Tenth Chamber) delivered on 14 May 2020 in Case T-282/18, Bernis and Others v SRB

(Case C-364/20 P)

(2020/C 320/17)

Language of the case: English

Parties

Appellants: Ernests Bernis, Oļegs Fiļs, OF Holding SIA, Cassandra Holding Company SIA (represented by: O.H. Behrends, Rechtsanwalt)

Other parties to the proceedings: Single Resolution Board (SRB), European Central Bank (ECB)

Form of order sought

The appellants claim that the Court should:

— set aside the order of the General Court;

— declare that the application for annulment is admissible;

— refer the case back to the General Court for it to determine the action for annulment;

— order the ECB to pay the appellants’ costs and the costs of this appeal.

Pleas in law and main arguments

In support of the appeal, the appellants rely on the following pleas in law.

First plea in law, alleging that the General Court erred in law in relying on the fact that Regulation No 806/2014 (1) makes no provisions, in circumstances such as those of the present case, for the winding up of a credit institution. The appellants argue that this aspect concerns the legality of the SRB’s contested decisions of 23 February 2018 and thus the merits whereas the admissibility solely depends on the manner in which the SRB actually acted (not how it should have acted).

Second plea in law, alleging that the General Court erred in law in treating it as a consideration supporting its conclusion of inadmissibility that the Luxembourg court rejected the Luxembourg NRA’s application for the dissolution and winding up of ABLV Luxembourg. The rejection of a decision of a European institution by a national court does not render that decision non-existent and does not eliminate the need for an annulment by the European courts.

Third plea in law alleging that the General Court erred in law in assuming that the voluntary nature of the liquidation of ABLV Bank as a matter of Latvian law is relevant if, as the General Court confirms, the liquidation was mandated by the SRB’s decisions.

Fourth plea in law, alleging that the General Court erred in law by assuming that a sufficiently direct legal effect is excluded because of the fact that the implementation of the contested decisions involves the application of national law. The application of national law in the context of the implementation is irrelevant as long as the purported legal effect of the act is governed by European law.

Fifth plea in law, alleging that the General Court erred in law in holding that the jurisdiction-specific nature of the implementation of the act is relevant pursuant to Article 263 TFEU.

Sixth plea in law, alleging that the General Court erred in law by assuming that any discretion of the national authorities in the context of the implementation excludes the direct legal effect.

Seventh plea in law, alleging that the General Court relied on an incorrect understanding of the concept of ‘intermediate rules’ as developed in case law.

Eighth plea in law, alleging that the General Court drew incorrect conclusions from the mere form of the contested acts.

Ninth plea in law, alleging that the General Court erred in law in failing to apply Article 263 TFEU in the light of the specific guidance provided in Regulation No 806/2014 as to the reviewability of acts of the SRB.

Tenth plea in law, alleging that the General Court erred in law by failing to take into account the appellants’ rights pursuant to Article 47 of the Charter on Fundamental Rights of the European Union and created a gap in the legal protection.

Eleventh plea in law, alleging as a precaution that the order under appeal would be based on a manifest distortion of the contested acts if it was interpreted as holding that the contested acts did not mandate the liquidation of ABLV Latvia and ABLV Luxembourg. This plea is submitted merely as a precaution. The appellants do not believe that there is any basis for interpreting the order under appeal in this manner.

Twelfth plea in law, alleging that the order under appeal is based on an incorrect interpretation of relevant case law, including the decisions of the Court of Justice in Trasta Komercbanka and Others v ECB (C-663/17) and Deutsche Post and Germany v Commission (C-463/10).

Thirteenth plea in law, alleging that the order under appeal is insufficiently reasoned.

(1) 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).