Appeal brought on 20 November 2020 by the Single Resolution Board against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 23 September 2020 in Case T-411/17, Landesbank Baden-Württemberg v Single Resolution Board

(Case C-621/20 P)

(2020/C 443/18)

Language of the case: German

Parties

Appellant: Single Resolution Board (represented by: K.-Ph. Wojcik, H. Ehlers, P.A. Messina and J. Kerlin, acting as Agents, and by H.-G. Kamann, F. Louis, P. Gey, Rechtsanwälte)

Other parties to the proceedings: Landesbank Baden-Württemberg, European Commission

Form of order sought

The Single Resolution Board claims that the Court should:

— set aside the judgment of the General Court of 23 September 2020 in Case T-411/17, Landesbank Baden-Württemberg v Single Resolution Board (SRB), EU:T:2020:435;

— dismiss the action for annulment;

— order the respondent to pay the costs of the proceedings.

Grounds of appeal and main arguments

First ground of appeal, alleging infringement of Article 85(3) of the Rules of Procedure of the General Court, distortion of the evidence, and infringement of the SRB’s right to a fair hearing.

In the first place, the SRB submits that the General Court interpreted and applied Article 85(3) of its Rules of Procedure incorrectly by deciding that the SRB failed to properly authenticate its decision concerning the 2017 ex ante contributions to the Single Resolution Fund (SRB/ES/SRF/2017/05), because the evidence submitted by the SRB at the hearing regarding the proper authentication of that decision was regarded as inadmissible. The SRB submits in this context, first, that it was justified in producing evidence at the hearing regarding the proper authentication of that decision, because the question of the lack of authentication had not previously been the subject of the written procedure nor had it been considered in the General Court’s measures of organisation or inquiry. Second, the SRB submits that, by disregarding that evidence and declaring that that evidence — assuming it to have been admissible — was unsubstantiated, the General Court had distorted the evidence before it. Furthermore, the SRB contends that, by finding that, in any event, the evidence showed no inextricable link between the routing slip, signed by the president of the SRB, and the annex to the decision at issue, the General Court disregarded the reference number on the routing slip, which inextricably linked the routing slip to the electronic file, which itself contains the decision at issue and its annex. Third, the SRB claims that the General Court infringed its rights to a fair hearing by failing to address the issue of the lack of authentication before the hearing, by refusing the SRB’s offer of further evidence and by not informing the SRB at any time that it regarded the evidence as unsatisfactory.

Second ground of appeal, alleging infringement of Article 296 TFEU and Article 47 of the Charter of Fundamental Rights

In the second place, the SRB further submits that the General Court exaggerated the requirements under Article 296 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union by finding that the method of calculation pursuant to Articles 4 to 7 and 9 of Delegated Regulation (EU) 2015/63 (1) and Annex I thereto is opaque and that, therefore, the decision at issue necessarily could not be properly reasoned, because the Landesbank Baden-Württemberg could not fully verify the accuracy of the calculation. In the appellant’s view, the General Court failed to render those requirements compatible with the obligation of secrecy pursuant to Article 339 TFEU — which, furthermore, was not referred to in the judgment under appeal — as well as with other principles of EU law. The SRB asserts that the delegated regulation has struck a proportionate balance between the principles of transparency, the obligation to maintain professional secrecy, and the other objectives set out by that regulation, in particular, to reach a specific target level of contributions to the funding of the Single Resolution Fund and to raise contributions from all relevant institutions in a fair and proportionate manner. According to the SRB, it duly complied with that legal framework in its statement of reasons for the decision at issue.

(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).