Case T-203/18: Action brought on 23 March 2018 — VQ v ECB
Date: 2018-03-23
Institutions: General Court
Subjects: administrative sanction, credit institution, financial supervision, limitation of legal proceedings, right to justice, share capital








C_2018182EN.01002602.xml










28.5.2018   


EN


Official Journal of the European Union


C 182/26





Action brought on 23 March 2018 — VQ v ECB
(Case T-203/18)
(2018/C 182/31)
Language of the case: English

Parties


Applicant: VQ (represented by: G. Cahill, Barrister)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:






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annul, pursuant to Article 263 TFEU, the European Central Bank’s Decision SNC-2016-0026 of 14 March 2018;










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declare, pursuant to Article 277 TFEU, that Article 18(6) of the SSM Regulation (1) is unlawful, and therefore annul the said decision; and










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order the ECB to pay the costs.





Pleas in law and main arguments

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






1.


First plea in law, alleging the ECB infringed Article 18(1) of the SSM Regulation and Article 49(1) of the Charter of Fundamental Rights of the European Union, by imposing an administrative pecuniary penalty on the grounds of a legal framework based on non-directly effective EU and national law.






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The applicant pleads that its repurchases of treasury shares between 1 January 2014 and 31 December 2015 should not be considered in breach of Articles 77(a) and 78 of Regulation 575/2013, (2) since the capital conservation buffer was not in force nor determined until 1 January 2016.










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As long as the decision of the ECB relies on the rules governing the capital conservation buffer in Directive 2013/36, (3) which were not binding not in force nor determined until 1 January 2016, the applicant respectfully submits that the ECB has imposed an administrative pecuniary penalty in the absence of a directly applicable rule of EU and national law.










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The contested decision therefore breaches Article 18(1) of the SSM Regulation and, in particular, the principle of legality enshrined in Article 49(1) of the Charter of Fundamental Rights.














2.


Second plea in law, alleging that the ECB infringed Article 132(1)(b) of Regulation 468/2014, (4) as it orders the publication of an administrative pecuniary penalty on a non-anonymised basis.










3.


Third plea in law, alleging that Article 18(6) of the SSM Regulation is unlawful and in breach of Article 263, sixth paragraph, TFEU and Article 47 of the Charter of Fundamental Rights, in that it imposes a duty to publish an administrative pecuniary penalty irrespective of the fact that the applicant has the intention to bring an action before the General Court within the time limits provided in Article 263, sixth paragraph, TFEU.






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By introducing a rule such as Article 18(6) of the SSM Regulation, the Council has deprived an applicant interested in bringing an action against the decision not to anonymise an administrative pecuniary penalty of the two-month time-limit provided in Article 263, sixth paragraph, TFEU.










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The contested provision derogates from the two month time-limit to bring an action of annulment, and grants the ECB a unilateral power to determine at which time a credit institution must bring an action.










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While the ECB has the power to publish the administrative pecuniary penalty, the credit institution concerned must bring an application prior to the ECB’s decision to publish the penalty. This situation creates an unreasonable uncertainty on the credit institution which can eventually limit its ability to bring an action and, ultimately, violates its fundamental right to an effective remedy.










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Consequently, Article 18(6) of the SSM Regulation is contrary to Article 263, sixth paragraph, TFEU and 47 of the Charter of Fundamental Rights.










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Inasmuch as the ECB deprived the applicant of its right to an effective remedy, the contested Decision should be annulled.










(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)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).

(4)  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 (ECB/2014/17) (OJ 2014 L 141, p. 1).