Action brought on 18 February 2022 — Sberbank Europe v ECB

(Case T-99/22)

(2022/C 191/37)

Language of the case: English

Parties

Applicant: Sberbank Europe AG (Vienna, Austria) (represented by: M. Fellner, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

— annul the ECB’s decision dated 21 December 2021 rendered against Sberbank (No ECB-SSM-2021-ATSBE-12, ESA-2020-00000051) without replacement pursuant to Article 263, 264 TFEU; and,

— order the defendant to pay the costs of the proceedings of annulment.

Pleas in law and main arguments

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

1. First plea in law, alleging that the ECB’s imposition of absorption interest is an inadmissible double punishment pursuant to Article 50 of the Charter of the Fundamental Rights (‘CFR’) of the European Union and Article 4 of the European Convention of Human Rights (‘ECHR’).

2. Second plea in law, alleging that the ECB’s decision dated 21 December 2021 violates Article 49 of the CFR and Article 7 of the ECHR by imposing a penalty exceeding the amount limits laid down in Article 18(1) of Regulation (EU) No 1024/2013 (1).

3. Third plea in law, alleging that ECB’s decision imposing absorption interest on Sberbank violates Article 17 of the CFR and Article 1 of the First additional protocol to the ECHR.

4. Fourth plea in law alleging violation of fundamental rights and fundamental freedoms pursuant to Article 6 of the Treaty on European Union. The principle of res iudicata prohibits the ECB to impose absorption interest on Sberbank for exceeding the large exposure limits pursuant to Art 395 of Regulation (EU) No 575/2013 (2).

5. Fifth plea in law alleging violation of the principle of good faith, since the ECB violated the Guide to the method of setting administrative pecuniary penalties pursuant to Article 18(1) and (7) of Regulation (EU) No 1024/2013.

6. Sixth plea in law alleging that the defendant violated Article 6 of the ECHR.

7. Seventh plea in law alleging that the defendant violated the amount of limits for sanctions pursuant to Article 18(1) of Regulation (EU) No 1024/2013.

8. Eighth plea in law alleging violation of the principle of proportionality pursuant to Section 99(e) of the Austrian Banking Act (‘BWG’).

9. Ninth plea in law alleging that Article 97 of the BWG is not applicable if no advantage is gained or no loss is avoided.

10. Tenth plea in law alleging that the ECB’s ability to impose absorption interest is time-barred pursuant to Article 130 of Regulation (EU) No 468/2014 (3) and Section 22 of the Austrian Financial Market Supervisory Authorities Act (‘FMSA’).

11. Eleventh plea in law alleging that Art 395(1) of Regulation (EU) No 575/2013 only stipulates one large exposure limit, which is why Section 97(1) No 2 BWG only sanctions the exceeding of this limit once.

12. Twelfth plea in law alleging that Sberbank did not intentionally exceed the large exposure limit.

13. Thirteenth plea in law alleging that Sberbank did not gain any advantage or avoid any loss to be absorbed.

14. Fourteenth plea in law alleging that by not granting the exemption under 396(1) of Regulation (EU) No 575/2013 the ECB has misused its discretion.

(1) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

(2) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

(3) Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ 2014 L 141, p. 1).