Action brought on 5 July 2021 — Max Heinr. Sutor v SRB

(Case T-393/21)

(2021/C 349/59)

Language of the case: German

Parties

Applicant: Max Heinr. Sutor OHG (Hamburg, Germany) (represented by: A. Glos, M. Rätz and T. Kreft, 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 14 April 2021 on the 2021 ex ante contributions to the Single Resolution Fund (SRB/ES/2021/22) in so far as it concerns the applicant, including the communication of the defendant of 14 April 2021 explaining the decision and concerning the applicant regarding the data used for the calculation of the 2021 ex ante contributions to the Single Resolution Fund (SRB/ES/2021/24);

— 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 the following pleas in law:

1. First plea in law: Infringement of Article 5(1)(e) of Delegated Regulation (EU) 2015/63 (1) because the defendant did not exclude the client money held in trust by the applicant from the calculation of the 2021 bank levy. Article 5(1)(e) of Delegated Regulation (EU) 2015/63 is applicable to such bankruptcy-remote client money at least by analogy.

2. Second plea in law: 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 100-fold higher bank levy solely on the basis of the risk-free fiduciary liabilities recognised by the applicant in the balance sheet.

3. Third plea in law: Infringement of the principle of equal treatment because the decision treats the applicant differently from credit institutions whose national accounting standards do not require fiduciary liabilities to be recognised or which apply IFRS, and from investment firms that handle client money, without that being objectively justified.

4. Fourth plea in law: Infringement of Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’) because the inclusion of the risk-free fiduciary liabilities in the assessment basis leads to an increase in the bank levy for the applicant for 2021 by a factor of 100, without that interference being justified.

5. Fifth plea in law: Infringement of Article 49 in conjunction with Article 54 TFEU because the decision restricts the applicant’s right to pursue activities in the Member State of its principal place of business, and that to a disproportionate extent, and discriminates against the applicant in comparison with credit institutions in other Member States.

6. Sixth plea in law: Infringement of Article 17(3) and (4) of Delegated Regulation (EU) 2015/63 because the defendant did not take into account the reporting data for the contribution years 2018 to 2020, as subsequently revised by the applicant, when determining the annual contribution to be paid for the 2021 contribution period and did not reduce the applicant’s 2021 bank levy accordingly.

7. Seventh plea in law: Infringement of the right to be heard under Article 41(1) and (2)(a) of the Charter because the applicant was only granted an actual period of three days in order, in the context of the consultation, to examine the draft of an individual notification for the collection of the 2021 bank levy and to send comments to the defendant.

8. Eighth plea in law: Infringement of Article 41(1) and (2)(a) of the Charter and the second paragraph of Article 296 TFEU because the statement of reasons for the contested decision does not enable the applicant to verify the amount of its contribution.

9. Ninth plea in law: Infringement of the principle of effective legal protection under the first paragraph of Article 47 of the Charter, as the statement of reasons does not enable the applicant to assess whether it is appropriate to apply to the court having jurisdiction.

10. Tenth plea in law (in the alternative): Articles 4 to 7 and 9 of and Annex I to Delegated Regulation (EU) 2015/63 are invalid because, on account of the interdependence of the contributions and the reliance on confidential third-party data, they require the defendant to issue a decision which infringes the obligation to state reasons.

11. Eleventh plea in law (in the alternative): Articles 4 to 7 and 9 of and Annex I to Delegated Regulation (EU) 2015/63 are invalid because they infringe the requirement of effective legal protection under the first paragraph of Article 47 of the Charter.

12. Twelfth plea in law (in the alternative): The assessment basis under Article 14(2), in conjunction with Article 3(11), of Delegated Regulation (EU) 2015/63 is invalid because it infringes Article 103(7) of Directive 2014/59/EU and the principle of equal treatment.

13. Thirteenth plea in law (in the alternative): The assessment basis under Article 14(2), in conjunction with Article 3(11), of Delegated Regulation (EU) 2015/63 is invalid because it infringes Article 16 of the Charter.

14. Fourteenth plea in law (in the alternative): The assessment basis under Article 14(2), in conjunction with Article 3(11), of Delegated Regulation (EU) 2015/63 is invalid because it infringes Article 49 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).