Action brought on 26 September 2022 — Hypo Vorarlberg Bank v SRB

(Case T-599/22)

(2022/C 424/65)

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 General Court should:

— Annul the decision of the Single Resolution Board of 25 July 2022 on the calculation of the 2017 ex-ante contributions of Hypo Vorarlberg Bank AG and Portigon AG to the Single Resolution Fund (SRB/ES/2022/41) together with annexes, at least in so far as it concerns the applicant, and

— Order the Single Resolution Board to pay the costs.

Pleas in law and main arguments

In support of its action, the applicant relies on 10 pleas in law.

1. First plea in law, alleging infringement of essential procedural requirements due to a lack of full disclosure of the contested decision. The contested decision was not fully disclosed to the applicant contrary to 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 data which were not shared was required, as a central component of the decision, in order to understand how the individual situation of the applicant was taken into account relative to the situation of all the other institutions concerned in the calculation of the contributions.

2. Second plea in law, alleging a breach of the principle of legal certainty due to the retrospective adoption of the contested decision. The retrospective adoption of the contested decision is contrary to the principle of legal certainty as it was not necessary to achieve the objective.

3. Third plea in law, alleging infringement of Article 102 of Directive 2014/59/EU, (1) Article 69(1) and (2) and Article 70(2) of Regulation (EU) No 806/2014, (2) Articles 3 and 4(2) of Delegated Regulation (EU) 2015/63 (3) and the principle of proportionality due to the incorrect determination of the target level, as the defendant set an excessive target level contrary to the EU legal framework.

4. Fourth plea in law, alleging infringement of essential procedural requirements due to an inadequate statement of reasons for the decision. The contested decision infringes the obligation to state reasons provided for in Article 296, second paragraph, TFEU and Article 41(1) and (2)(c) of the Charter, as only a few selected conclusions were disclosed. The requirements as to the scope of the obligation to state reasons as specified in Case C-584/20 P (4) were not complied with.

5. Fifth plea in law, alleging infringement of essential procedural requirements due to an inadequate statement of reasons with respect to the exercise of significant discretionary powers. The contested decision infringes the obligation to state reasons because, as regards the defendant’s margin of discretion, it was not explained which assessments had been made by the defendant and for what reasons. Accordingly an arbitrary exercise of discretion by the defendant could therefore not be ruled out.

6. Sixth plea in law, alleging infringement of Article 102 of Directive 2014/59/EU; Article 69(1) and (2), and Article 70(2) and (3) of Regulation (EU) No 806/2014; Article 4(2), Article 6(2)(a), Article 7(2)(a), and Article 17(3) and (4) as well as Annex 1 to Delegated Regulation (EU) 2015/63 and the principles of effective judicial protection and of proportionality on account of non-compliance with the factual circumstances. The contested decision is contrary to the EU legal framework and the principles of effective judicial protection and of proportionality as the defendant did not consider current factual circumstances when adopting the contested decision and based it on inaccurate forecasts (in particular the target level).

7. Seventh plea in law, alleging infringement of essential procedural requirements due to the absence of a hearing and the failure to observe the right to a fair hearing. Contrary to Article 41(1) and 2(a) of the Charter, the applicant was not given the right to be heard either before the adoption of the contested decision or before that of the contribution decision on which it was based. The consultation carried out did not offer the possibility for it to submit effective and comprehensive observations.

8. Eighth plea in law alleging the unlawfulness of Delegated Regulation (EU) 2015/63 as the legal basis for the contested decision, the unlawfulness of the risk adjustment method provided for in Delegated Regulation (EU) 2015/63 and the margin of discretion granted to the SRB. Articles 4 to 7 and 9 as well as Annex 1 to Delegated Regulation (EU) 2015/63, on which the contested decision is based, create an opaque system for setting contributions, that is contrary to Articles 16, 17, 41 and 47 of the Charter and does not ensure compliance with Articles 20 and 21 of the Charter or with the principles of proportionality and of legal certainty. The defendant enjoys a large margin of discretion the exercise of which is not possible to review.

9. Ninth plea in law claiming the unlawfulness of Implementing Regulation (EU) 2015/81 (5) as the basis for the contested decision. The contested decision infringes the Treaties as Article 8 of Implementing Regulation (EU) 2015/81 goes beyond the limits provided for in Article 70(7) of Regulation (EU) No 806/2014 read in conjunction with Article 291 TFEU and neither the implementing regulation nor the legal basis are accompanied by a statement of reasons as required under Article 296, second paragraph, TFEU. That unlawfulness is reflected in the contested decision.

10. Tenth plea in law, alleging the unlawfulness of Directive 2014/59/EU and Regulation (EU) No 806/2014 as the legal basis for Delegated Regulation (EU) 2015/63 as well as for the Implementing Regulation (EU) 2015/81 and therefore the contested decision. In the alternative, the applicant alleges the unlawfulness of the provisions of Directive 2014/59/EU and Regulation (EU) No 806/2014 that render the contribution system binding and grant the defendant a broad margin of discretion. In so far as those provisions are not amenable to an interpretation consistent with primary law, they are contrary to the obligation to state reasons, the principle of legal certainty as well as the Treaties (in particular Article 1(2) TEU; Articles 15, 296 and 298 TFEU) and the Charter (in particular Articles 16, 17, 41, 42 and 47 of the Charter).

(1) 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).

(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) 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).

(4) Judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C-584/20 P and C-621/20 P, EU:C:2021:601.

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