Action brought on 4 July 2022 — Société générale and Others v SRB

(Case T-391/22)

(2022/C 311/23)

Language of the case: French

Parties

Applicants: Société générale (Paris, France), Crédit du Nord (Lille, France), SG Option Europe (Puteaux, France) (represented by: A. Gosset-Grainville, M. Trabucchi and M. Dalon, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicants claim that the Court should:

— pursuant to Article 263 TFEU, annul Decision SRB/ES/2022/18 of 11 April 2022 on the calculation of 2022 ex-ante contributions to the SRF in so far as it concerns the applicants;

— pursuant to Article 277 TFEU, declare the following provisions of the SRM Regulation, (1) the Implementing Regulation (2) and the Delegated Regulation (3) inapplicable: — Articles 69(1), 69(2), 70(1) and 70(2)(a) and (b) of the SRM Regulation; — Articles 4(2),5,6,7 and 20 of the Delegated Regulation, and Annex I thereto; — Article 4 of the Implementing Regulation;

— order the defendant to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law.

1. First plea in law, alleging infringement of the principle of equal treatment in that the methods of calculation of ex-ante contributions to the Single Resolution Fund (SRF) laid down in the SRM Regulation and the Delegated Regulation do not reflect the actual size or the actual risk of the institutions.

2. Second plea in law, alleging infringement of the principle of proportionality in that the mechanism of ex-ante contributions to the SRF laid down in the SRM Regulation and the Delegated Regulation is based on an assessment that artificially exacerbates the risk profile of large French institutions and therefore leads to disproportionately high contributions.

3. Third plea in law, alleging infringement of the principle of legal certainty since the calculation of the amount of the ex-ante contributions fixed by the SRM Regulation, the Delegated Regulation and the Implementing Regulation, first, cannot be predicted with clarity sufficiently early and, second, does not depend so much on the inherent situation and risk profile of the institution but rather on its relative situation compared to the other contributing institutions. Lastly, the applicants consider that, in accordance with Article 290 TFEU, the Commission should not have had responsibility for determining risk indicators in the context of the Delegated Regulation, since those criteria have an extremely fundamental and decisive function in setting the amounts of the contribution.

4. Fourth plea in law, alleging infringement of the principle of good administration in that not all of the risk indicators were duly taken into account by the contested decision.

5. Fifth plea in law, alleging an error of law as regards the setting of an adjustment coefficient. The applicants allege an error of law in that the SRB, which relied on an erroneous interpretation of several provisions of the SRB Regulation, set an adjustment coefficient that was manifestly too high.

6. Sixth plea in law, alleging infringement of the obligation to state reasons as regards the restriction on the use of irrevocable payment commitments, on the ground that the contested decision does not show in a clear and detailed way why there is any need for, first, setting a ceiling on the use of irrevocable payment commitments (‘IPCs’) at 15 % and, second, accepting as collateral only cash.

7. Seventh plea in law, alleging a manifest error of assessment. The applicants claim in that regard that the pro-cyclicality and liquidity risks relied on by the SRB in order to limit the use of IPCs are unfounded, particularly in the light of the specific characteristics of the IPCs and the context of their use.

8. Eighth plea in law, alleging an error in law. The applicants claim that the SRB, first, relies on a misinterpretation of the provisions allowing the use of IPCs in imposing an identical measure on all the institutions on the basis of an abstract analysis and, second, negates the effectiveness of those provisions in so far as the proportion of IPCs is consistently and without sufficient justification limited to the statutory minimum.

(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 255, p. 1).

(2) Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation No 806/2014 with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1).

(3) Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).