Appeal brought on 9 August 2022 by Aeris Invest Sàrl against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 1 June 2022 in Case T-628/17 Aeris Invest/Comisión v JUR

(Case C-535/22 P)

(2022/C 380/09)

Language of the case: Spanish

Parties

Appellant: Aeris Invest Sàrl (represented by: R. Vallina Hoset, E. Galán Burgos and M. Varela Suárez, lawyers)

Other parties to the proceedings: European Commission, Single Resolution Board (SRB), Kingdom of Spain, European Parliament, Council of the European Union, Banco Santander SA

Form of order sought

The appellant claims that the Court should:

(i) principally, set aside the judgment of the Third Chamber (Extended Composition) of the General Court of 1 June 2022, Aeris Invest v Commission and SRB, T-628/17, EU:T:2022:315 and, accordingly: — annul Decision SRB/EES/2017/08 of the Single Resolution Board of 7 June 2017 concerning the adoption of a resolution scheme in respect of Banco Popular Español, S.A; — annul Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español S.A; — declare Articles 15 and 22 of Regulation 806/2014 (1) inapplicable in accordance with Article 277 TFEU.

(ii) order the European Commission and the Single Resolution Board to pay the costs at both instances.

(iii) in the alternative to the preceding form of order sought, refer the case back to the General Court, in which case reserve the costs.

Pleas in law and main arguments

The appellant relies on eight grounds in support of its appeal against the judgment under appeal.

By its first ground of appeal, the appellant claims that the judgment under appeal infringes Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 296 of the Treaty on the Functioning of the European Union (‘TFEU’), in so far as the judgment under appeal states that the statement of reasons for the Resolution Decision is sufficient and not contradictory.

By its second ground of appeal, the appellant claims that the judgment under appeal infringes Article 47 of the Charter, in so far as it states: (i) that the appellant is a third party, (ii) that the confidentiality of the Resolution Decision, Valuation 1 and Valuation 2 are justified, (iii) that the statement of reasons can be disclosed after the appeal has been lodged, and (iv) that the full text of the Resolution Decision is not relevant for the outcome of the proceedings.

By its third ground of appeal, the appellant claims that the judgment under appeal infringes Article 18 of Regulation 806/2014 (‘SRMR’), the duty of care and Article 296 TFEU, in that the relevant factors were not taken into account and alternative solutions were available.

By its fourth ground of appeal, the appellant claims that the judgment under appeal errs in law in the application of Articles 14 and 20 SRMR, the duty of care and Article 296 TFEU, in that (i) maximising the sale price is linked to the principles of fair competition and transparency, (ii) the procedure did not comply with the established requirements, and (iii) in any event, the public interest does not justify an infringement of Article 14 SRMR.

By the fifth ground of appeal, the appellant claims that the judgment under appeal infringes the duty of care, Article 17 of the Charter, Article 14 SRMR and the rights of defence, in so far as: (i) it accuses the appellant of failing to prove how the resolution objectives were achieved when those objectives were confidential, (ii) the Single Resolution Board was not adequately prepared, and (iii) the resolution was disproportionate, in that the entity was solvent.

By the sixth ground of appeal, the appellant claims that the judgment under appeal infringes Article 47 of the Charter, Article 6 of the Convention and the principle of audi alteram partem, in so far as: (i) the documents requested by the General Court in the Order of 12 May 2021 were not provided to the appellant, (ii) the evidence necessary for the rights of the defence was denied, and (iii) the appellant was not allowed to examine the documents on which the respondents’ arguments are based.

By the seventh ground of appeal, the appellant claims that the judgment under appeal infringes the right to property by dismissing the appellants plea of illegality, in so far as: (i) there is an interference with the right to property; (ii) writing down the capital of a solvent bank is contrary to the requirement of necessity and the prohibition of arbitrariness, (iii) writing down the debt and capital of a solvent bank is disproportionate, and (iv) there is no adequate compensation.

By its eighth ground of appeal, the appellant claims that the judgment under appeal infringes Articles 17 and 52 of the Charter and Article 5(4) of the Treaty on European Union, in so far as (i) the concept of interference with the right to property does not analyse what the procedure was and whether the measure was arbitrary, and (ii) there was no adequate compensation.

(1) Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rues 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.