Case T-496/11: Action brought on 15 September 2011 — United Kingdom v ECB
Date: 2011-09-15
Institutions: General Court
Subjects: European Central Bank, clearing agreement, euro area, infringement of EU law, legal domicile, market access, powers of the institutions (EU)








C_2011340EN.01002901.xml










19.11.2011   


EN


Official Journal of the European Union


C 340/29





Action brought on 15 September 2011 — United Kingdom v ECB
(Case T-496/11)
2011/C 340/58
Language of the case: English

Parties


Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: K. Beal, barrister, and S. Ossowski, Treasury Solicitor)

Defendant: European Central Bank

Form of order sought

Annulment of the Eurosystem Oversight Policy Framework of the European Central Bank (‘ECB’) dated 5 July 2011 (1), in so far as it sets out a location policy to be applied to central counterparty clearing systems (‘CCPs’) established in Member States which do not form part of the Eurosystem.

Pleas in law and main arguments

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






1.


First plea in law, alleging






—


that the ECB lacked competence to publish the contested act, either at all or alternatively without recourse to the promulgation of a legislative instrument such as a Regulation, adopted either by the Council or alternatively by the European Central Bank (‘ECB’) itself.














2.


Second plea in law, alleging






—


that the contested act either de jure or de facto will impose a residence requirement on central counterparty clearing systems (‘CCPs’) that wish to undertake clearing or settlement operations in the Euro currency whose daily trades exceed a certain volume. The contested act infringes all or any of Articles 48, 56 and/or 63 TFEU, in that:






(a)


CCPs established in non-Euro area Member States, such as the United Kingdom, will be obliged to relocate their centres of administration and control to Member States which are members of the Eurosystem. They will also be obliged to re-incorporate as legal persons recognised in the domestic law of another Member State;










(b)


in the event that such CCPs do not relocate as required, they will be precluded from access to the financial markets in the Eurosystem Member States, either on the same terms as CCPs established in those territories, or at all;










(c)


such non-resident CCPs will not be entitled to facilities offered by the ECB or the National Central Banks (‘NCBs’) of the Eurosystem, either on the same terms, or at all;










(d)


as a result, the ability of such CCPs to offer clearing or settlement services in the Euro currency to customers in the Union will be restricted or even prohibited in its entirety.


















3.


Third plea in law, alleging






—


that the contested act infringes Articles 101 and/or 102 TFEU, read in conjunction with Article 106 TFEU and Article 13 TEU, since:






(a)


it effectively requires all clearing operations proceeding in the Euro currency exceeding a certain level to be conducted by CCPs established in a Euro area Member State;










(b)


it effectively directs Euro area NCBs not to supply Euro currency reserves to CCPs established in non-Euro area Member States if they exceed the thresholds set in the decision.


















4.


Fourth plea in law, alleging






—


that the requirement for CCPs established in non-Euro area Member States to adopt a different corporate personality and domicile amounts to direct or indirect discrimination on grounds of nationality. It also offends the general EU principle of equality, since CCPs established in different Member States are subject to disparate treatment without any objective justification for the same.














5.


Fifth plea in law, alleging






—


that without assuming the burden of establishing that a public interest justification for such restrictions is not available (the onus being on the ECB to advance its case for a derogation if it so chooses), the United Kingdom contends that any public policy justification advanced by the ECB would not satisfy the requirement of proportionality, since less restrictive means of ensuring control over financial institutions resident within the Union but outside the Euro area are available.










(1)  Made publicly available through publication on the ECB’s website on 5 July 2011.