Action brought on 8 July 2019 — Hypo Vorarlberg Bank v SRB

(Case T-479/19)

(2019/C 305/69)

Language of the case: German

Parties

Applicant: Hypo Vorarlberg Bank AG (Bregenz, Austria) (represented by: G. Eisenberger and A. Brenneis, 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 16 April 2019 on the calculation of the 2019 ex ante contributions to the Single Resolution Fund (SRB/ES/SRF/2019/10), including the annex thereto, in any event in so far as the contested decision, including the annex thereto, concerns the contribution to be paid by the applicant; and

— order the Single Resolution Board to pay the costs of the proceedings.

Pleas in law and main arguments

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

1. First plea, alleging infringement of essential procedural requirements owing to incomplete notification of the contested decision — The contested decision was not fully notified to the applicant in breach of Article 1(2) TEU, Articles 15, 296 and 298 TFEU and Articles 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Knowledge of the non-notified details, as an essential element of the decision, is necessary in order to make it possible to understand and review the calculations of the contributions.

2. Second plea, alleging infringement of essential procedural requirements owing to a failure to state sufficient reasons for the contested decision — The contested decision fails to fulfil the obligation to state reasons under the second paragraph of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter, on the ground that neither the bases nor the details of the calculations were disclosed. As regards the defendant’s discretionary powers, it has not been stated which valuations were carried out by the defendant on which grounds.

3. Third plea, alleging infringement of essential procedural requirements owing to the absence of a hearing and the failure to respect the right to be heard — The applicant’s right to be heard was not respected, in breach of Article 41(1) and (2)(a) of the Charter, prior to the adoption of the contested decision or prior to the issuance of the contribution notice based on that decision.

4. Fourth plea, alleging that Delegated Regulation (EU) 2015/63 (1) is unlawful as a basis for the contested decision — In the context of the fourth plea, the applicant submits that Articles 4 to 7 and 9 of, as well as Annex I to, Delegated Regulation 2015/63 — provisions which form the basis for the contested decision — establish an opaque system for the setting of contributions, which is contrary to Articles 16, 17 and 47 of the Charter and pursuant to which compliance with Articles 20 and 21 of the Charter and observance of the principles of proportionality and legal certainty are not ensured. The present plea is also raised, in the alternative, in relation to those provisions of Directive 2014/59/EU (2) and of Regulation (EU) No 806/2014 (3) which mandatorily require the system of contributions implemented by Delegated Regulation 2015/63 — a system which, in the applicant’s view, is incompatible with the cited fundamental rights and fundamental values of EU law.

(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) 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).

(3) 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).