Appeal brought on 4 December 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-420/17, Portigon AG v Single Resolution Board

(Case C-664/20 P)

(2021/C 44/40)

Language of the case: German

Parties

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

Other parties to the proceedings: Portigon AG, European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 23 September 2020, Portigon v Single Resolution Board (T-420/17, EU:T:2020:438);

— dismiss the application for annulment;

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

Grounds of appeal and main arguments

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

By its first ground of appeal, the SRB submits that the General Court misinterpreted and misapplied Article 85(3) of its Rules of Procedure, in so far as it held that the SRB had not properly authenticated its decision of 11 April 2017 on the calculation of the 2017 ex ante contributions to the Single Resolution Fund (SRB/ES/SRF/2017/05) (the ‘decision at issue’), since the evidence produced by the SRB at the hearing to that effect was considered inadmissible. In that regard, the SRB claims, in the first place, that it was justified to produce evidence at the hearing to show that the decision at issue had been properly authenticated, since the issue of lacking authentication had not previously been the subject of the written procedure, nor dealt with in a measure of organisation of procedure or a measure of inquiry ordered by the General Court. In the second place, the SRB claims that the General Court distorted the evidence before it, in so far as it disregarded that evidence and declared that, even if it were admissible, the evidence was unsubstantiated. Furthermore, the appellant submits that the General Court, in declaring that the evidence produced did not, in any event, demonstrate an inextricable link between the routing slip signed by hand by the president of the SRB and the annex to the decision at issue, failed to take into account the reference number on the routing slip, by which that slip is inextricably linked with the electronic file which, for its part, contains the decision at issue and the annex thereto. In the third place, the SRB claims that the General Court breached its right to a fair trial, in so far as it did not raise the issue of lacking authentication before the hearing, in so far as it gave the SRB no opportunity to respond in writing to Portigon’s unsubstantiated claims before the hearing, in so far as it did not accept the SRB’s offer to produce further evidence and in so far as it gave the SRB no indication at any time that it deemed the evidence insufficient.

Second ground of appeal: infringement of Article 296 TFEU

By its second ground of appeal, the SRB submits that the General Court overstated the requirements of Article 296 TFEU and Article 47 of the Charter of Fundamental Rights, in so far as it declared that the decision at issue lacked an adequate statement of reasons, since Portigon was not able to verify completely the accuracy of the calculation set out therein. According to the appellant, the General Court failed to reconcile those requirements with the obligation of secrecy, as provided for in Article 339 TFEU — which the General Court failed to mention in the judgment under appeal — and as follows from other principles of EU law. Regulation (EU) 2015/63, (1) on which the calculation of the contributions is based and the validity of which has not been contested by Portigon, strikes a proportionate balance between the principles of transparency, the obligation to observe professional secrecy and the other aims pursued by that regulation, in particular, those of reaching a certain target level of contributions to finance the Single Resolution Fund and of raising contributions from all the relevant institutions in a fair and proportionate way. The SRB submits that it complied with that legal framework in the reasoning of the decision at issue and thereby fulfilled its obligation to state adequate reasons for the decision at issue.

(1) Commission Delegated Regulation 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).