Action brought on 3 July 2020 — Norddeutsche Landesbank — Girozentrale v SRB

(Case T-413/20)

(2020/C 271/69)

Language of the case: German

Parties

Applicant: Norddeutsche Landesbank — Girozentrale (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 15 April 2020 (SRB/ES/2020/24), including the annex thereto, concerning the calculation of the contributions levied in advance to the Single Resolution Fund for 2020 and the details of the calculation in so far as they are relevant to the applicant, and

— order the defendant to pay the costs.

Pleas in law and main arguments

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

1. First plea in law, alleging an infringement of the right to be heard — The defendant failed to hear the applicant before adopting the contested decision, thereby infringing Article 41(1) and (2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. Second plea in law, alleging an infringement of procedural rules — The contested decision was adopted in breach of general procedural requirements deriving from Article 41 of the Charter, Article 298 TFEU, general principles of law and the defendant’s Rules of Procedure. — It is, inter alia, not verifiable for the applicant that the contested decision complied with the minimum duration of written procedures.

3. Third plea in law, alleging a failure to state reasons for the contested decision — The contested decision does not contain a sufficient statement of reasons; in particular, it lacks a statement of reasons relating to the individual case and a description of the fundamental considerations in the context of proportionality/discretion. — Moreover, the calculation of the annual contribution is not comprehensible. — A remedy for the lack of reasoning by means of the decision of the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority) is excluded on legal and factual grounds.

4. Fourth plea in law, alleging an infringement of the fundamental right to effective judicial protection (Article 47(1) of the Charter) for lack of verifiability of the contested order — The lack of a statement of reasons for the contested decision makes judicial review considerably more difficult. In that regard, the applicant submits that it is practically impossible for it to set out in detail the pleas in law and to challenge the grounds on which the contested decision was adopted. — In particular, the defendant infringed the principle of audi alteram partem, according to which the parties must be able to exchange arguments on both the factual and legal circumstances which are decisive for the outcome of the proceedings.

5. Fifth plea in law, alleging that the application of the IPS (Institutional Protection Scheme) indicator of Commission Delegate Regulation (EU) 2015/63 (1) infringes higher-ranking law — The Commission had no discretion when adopting Delegated Regulation (EU) 2015/63 as a delegated act within the meaning of Article 290 TFEU, which would result in limited judicial review. The same applies to the application of Delegated Regulation (EU) 2015/63 by the defendant. — In the application of the IPS indicator, the importance of the applicant’s membership of an institution-related guarantee scheme as an important criterion for the determination of contributions was well known, in particular the classification into three classes and the placing of the applicant in the class for the highest risk profile was erroneous in law. — Pursuant to the second sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, the defendant should also have taken into account the probability of the relevant institution being wound up and thus of the Single Settlement Fund being used when setting the contributions. — The defendant also disregarded the principle of proportionality when classifying the classes and allocating the adjustment factor for the IPS indicator.

6. Sixth plea in law, alleging that the application of the risk adjustment multiplier of Delegated Regulation (EU) 2015/63 infringes higher-ranking law — The application by the defendant of the risk adjustment multiplier to be determined in accordance with step 6 in Annex I and Article 9(3) of Delegate Regulation (EU) 2015/63 infringes the principle of orientation towards the risk profile. — The setting of the risk adjustment multiplier at a value of 1,388146345995 and 1,384564814222 respectively also constitutes an infringement of the applicant’s entrepreneurial freedom enshrined in Article 16 of the Charter.

7. Seventh plea in law (in the alternative), alleging that the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 infringes higher-ranking law — The second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 is unlawful because the adjustment of the IPS indicator by the risk indicator ‘trading activities, off-balance-sheet risks, derivatives, complexity and run-off’ pursuant to the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 does not comply with the requirements laid down in Article 113(7) of Regulation (EU) No. 575/2013 of the European Parliament and of the Council (2) and thus leads to unjustified unequal treatment between different institutions which are members of an institutional protection scheme. — The second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 also infringes the principle of proportionality because of the multiple consideration of the sub-risk indicators referred to in the first sentence of Article 7(4)(a) of that delegated regulation.

(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) 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 648/2012 (OJ 2013 L 176, p. 1).