Action brought on 6 July 2022 — Max Heinr. Sutor v SRB

(Case T-423/22)

(2022/C 359/98)

Language of the case: German

Parties

Applicant: Max Heinr. Sutor OHG (Hamburg, Germany) (represented by: A. Glos, M. Rätz, T. Kreft and H.-U. Klöppel, 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 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRB/ES/2022/18), in so far as it concerns the applicant;

— 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 nine pleas in law.

1. First plea in law, alleging infringement of Article 5(1)(e) of Delegated Regulation (EU) 2015/63 (1) since the defendant did not exclude the client money held in a fiduciary capacity by the applicant from the calculation of the 2022 bank levy. Article 5(1)(e) of Delegated Regulation (EU) 2015/63 is applicable to such bankruptcy-remote client money since the latter satisfied the conditions for application according to the clear wording of the measure.

2. Second plea in law, alleging infringement of the principle of proportionality under the second subparagraph of Article 70(2) of Regulation (EU) No 806/2014, (2) in conjunction with Article 103(7) of Directive 2014/59/EU, (3) in so far as the decision imposes a significantly increased bank levy solely on the basis of the risk-free fiduciary liabilities shown by the applicant in the balance sheet. The decision is not appropriate or necessary for attaining the objectives pursued by the bank levy, nor are the disadvantages caused by that decision proportionate to the objectives pursued.

3. Third plea in law, alleging infringement of the principle of equal treatment, since the decision treats the applicant differently, without any objective justification, from credit institutions whose national accounting standards did not require fiduciary liabilities to be shown or which applied IFRS (International Financial Reporting Standards), and from investment firms which were not at the same time authorised as credit institutions and which held client money.

4. Fourth plea in law, alleging infringement of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), since the inclusion of the risk-free fiduciary liabilities in the assessment basis results in a significant increase in the bank levy for the applicant for 2022.

5. Fifth plea in law, alleging infringement of Article 49 TFEU read in conjunction with Article 54 TFEU, since the decision restricts to a disproportionate extent the applicant’s freedom to pursue its professional activities in the Member State of its principal place of business, and discriminates against the applicant as compared with investment firms in other Member States which were at the same time authorised as credit institutions.

6. Sixth plea in law, alleging infringement of the right to be heard under Article 41(1) and (2)(a) of the Charter, since the defendant granted the applicant an insufficient consultation period of only 11 working days to examine the draft decision and draw up an opinion in the context of the consultation.

7. Seventh plea in law, alleging infringement of Article 41(1) and (2)(c) of the Charter and of the second paragraph of Article 296 TFEU, since the statement of reasons for the contested decision does not enable the applicant adequately to verify the amount of its contribution.

8. Eighth plea in law, alleging infringement of the principle of effective legal protection under the first paragraph of Article 47 of the Charter, since the defective statement of reasons does not make it possible for the applicant to obtain an adequate understanding of, or to challenge, the lawfulness of the decision.

9. Ninth plea in law (in the alternative), alleging that the assessment basis under Article 14(2) and Article 3(11) in conjunction with Article 5(1)(e) and Article 3(2) of Delegated Regulation (EU) 2015/63, if it were to be interpreted as meaning that fiduciary liabilities of investment firms which were also authorised as credit institutions must be taken into account in the calculation of the bank levy, is invalid, since that would infringe Article 103(7) of Directive 2014/59/EU, the principle of equal treatment, Article 16 of the Charter and Article 49 TFEU read in conjunction with Article 54 TFEU.

(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 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).

(3) 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).