Case T-575/17: Action brought on 17 August 2017 — Algebris (UK) and Others v SRB
Date: 2017-08-17
Institutions: General Court
Subjects: Spain, aid for restructuring, company in difficulties, credit institution, damages, financial solvency, ownership, principle of proportionality, professional secret, right to justice








C_2017382EN.01004702.xml










13.11.2017   


EN


Official Journal of the European Union


C 382/47





Action brought on 17 August 2017 — Algebris (UK) and Others v SRB
(Case T-575/17)
(2017/C 382/59)
Language of the case: English

Parties


Applicants: Algebris (UK) Ltd (London, United Kingdom), Anchorage Capital Group LLC (New York, New York, United States), Ronit Capital LLP (London) (represented by: T. Soames and J. Vandenbussche, lawyers, R. East, Solicitor, and N. Chesaites, Barrister)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicants claim that the Court should:






—


annul the decision of the Single Resolution Board SRB/EES/2017/08 of 7 June 2017 adopting a resolution scheme in respect of Banco Popular Español S.A. (1) in its entirety, or, in the alternative, Article 1 and/or 6 thereof;










—


order the SRB to pay the applicants’ legal costs.





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 SRB committed serious breaches of the principles of confidentiality and professional secrecy, contrary to Article 339 TFEU and Article 88(1) of Regulation (EU) No 806/2014 (2) and the case-law of the Court of Justice, thereby also failing to respect the applicants’ right to good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.










2.


Second plea in law, alleging manifest errors of assessment in the European Commission’s application of Articles 14, 18, 20, 21, 22 and 24 of Regulation No 806/2014.






—


In this regard, the applicants argue that the valuation of Banco Popular, which formed the basis for the resolution action taken under the Resolution Scheme, was not fair, prudent or reliable, and was inconsistent with the ‘no creditor worse off principle’; it did not therefore constitute accurate and reliable and consistent evidence on which to base the Resolution Scheme; and it was not capable of supporting the contested decision. Further and for the same reasons, the Resolution Scheme (and so the contested decision) was manifestly disproportionate by going beyond the measures necessary to secure the resolution objectives.














3.


Third plea in law, alleging that the SRB expropriated the applicants’ property in breach of their fundamental rights as protected by general principles of Union law and enshrined in Article 17 of the Charter of Fundamental Rights.










4.


Fourth plea in law, alleging that the SRB failed to ensure, in accordance with Article 41 of the Charter of Fundamental Rights and the case law of the Court of Justice, that the applicants were afforded a right to be heard during the resolution process.










5.


Fifth plea in law, alleging that the resolution scheme was not lawfully endorsed by the Commission and so the contested decision was not lawfully brought into force.






—


In this connection it is argued that, before adopting its Decision (EU) 2017/1246 endorsing the Resolution Scheme, the European Commission failed to assess properly, or at all, the discretionary aspects of the Resolution Scheme. This constituted a breach of the Commission’s obligations under Regulation (EU) No 806/2014 and of the principles of the Meroni case-law of the Court of Justice. Accordingly, the SRB committed a manifest error of assessment and law by concluding that its decision adopting the Resolution Scheme could, or had, come into force; further, or alternatively, and in any event, the Resolution Scheme adopted by the contested decision did not lawfully come into force.










(1)  Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español S.A. (notified under document C(2017) 4038), OJ 2017 L 178, p. 15.

(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.