Case T-22/19: Action brought on 11 January 2019 — Noguer Enríquez and Others v Commission
Date: 2019-01-11
Institutions: General Court
Subjects: Andorra, EU banking union, European Union, bank, bankruptcy, company in difficulties, infringement procedure (EU), monetary agreement, national implementing measure, shareholder




C_2019082EN.01006501.xml










4.3.2019   


EN


Official Journal of the European Union


C 82/65






Action brought on 11 January 2019 — Noguer Enríquez and Others v Commission
(Case T-22/19)
(2019/C 82/77)
Language of the case: Spanish

Parties


Applicants: Roser Noguer Enríquez (Andorra la Vella, Andorra),  TB (*1), Successors D’Higini Cierco García, SA (Andorra la Vella), Cierco Martínez 2 2003, SL (Andorra la Vella) (represented by: J. Álvarez González and S. San Felipe Menéndez, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should admit the action to establish the non-contractual liability of the European Union for damage caused by the European Commission in the performance of its duties, as set out in Articles 268 and 340(2) TFEU, and, after the appropriate legal procedures have been completed and the proceedings established to that effect have been dealt with, should deliver judgment declaring that the European Union has incurred non-contractual liability for the negligent and permissive conduct of the European Commission, order that the applicants be awarded compensation in the amount of EUR 50 220 800 in accordance with the calculations and quantification set out in the expert report accompanying the written application or, in the alternative, in the amount resulting from the expert opinion issued by the expert designated by the Court, together with interest at the statutory rate, and order the defendant to pay the costs.

Pleas in law and main arguments

In support of their action, the applicants raise the following pleas in law.






1.


Infringement of the Monetary Agreement between the European Union and the Principality of Andorra and incorrect transposition by the Principality of Andorra, with the Commission’s consent, of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council. (1) Specifically, the Commission:






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failed to fulfil its obligation to verify the ‘one-sided’, premature, self-serving and inadequate transposition of Directive 2014/59/EU carried out by the Principality of Andorra, which deliberately omitted to include the rights and guarantees of shareholders and depositors imposed by EU legislation as necessary counterbalances in intervention processes of the kind in question and even included additional discriminatory measures with regard to other shareholders; and










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failed to fulfil its obligation to report to the Joint Committee, and where necessary to the Court of Justice of the European Union, the Principality of Andorra’s infringement of the Agreement arising from the unlawful transposition of Directive 2014/59/EU, which deprived the applicants of ownership of their shares without the slightest justification on the relevant public interest ground, without respect for fundamental principles such as that of proportionality and without providing for any type of indemnification or compensation as required by law. This results in a significant infringement of overriding principles of the rule of law and/or a system of law and fundamental rights. Indeed, nor did the Commission report (not even as of the present day) the Principality of Andorra’s infringement for the purposes of terminating the Agreement.














2.


Infringement of the applicants’ fundamental rights and guarantees, recognised both in the Charter of Fundamental Rights of the European Union and in the Convention for the Protection of Human Rights and Fundamental Freedoms, inter alia: the right to property, the right to sound administration, the right to effective legal protection, the principle of legitimate expectations and the principle of legal certainty.






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In that regard, it is claimed that the European Commission’s failure to fulfil its obligations had the result that, following the resolution of the institution Banca Privada de Andorra (Private Bank of Andorra, ‘the BPA’), all the shareholders, including the applicants, who own 75,52 % of the shares in the company, were deprived of all their capital without receiving any compensation in return or being able to oppose it.










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It is also claimed that the inaction of the principal guarantor of the Agreement meant that the applicants’ right to receive, following the resolution of the BPA, what they would have obtained following ordinary insolvency or bankruptcy proceedings was not recognised in Andorran legislation. That right is recognised explicitly and exhaustively in the legislation of the European Union for the recovery and resolution of credit institutions and investment firms, which the Principality of Andorra was required to transpose by virtue of the Agreement.










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Lastly, neither (i) the right of the shareholders to an assessment of the situation in which they have been placed following the resolution of a financial institution and of the compensation, if any, which has been granted to them, nor (ii) the right to oppose, and defend themselves against, that result of the resolution of the institution, has been incorporated into the Andorran legal order.














3.


Infringement by the European Commission of its most essential duty to safeguard respect for and the application of EU law and the Treaties of the European Union, in accordance with Article 17 of the Treaty on European Union, by allowing third countries flagrantly to infringe their terms, clearly undermining legal certainty, the credibility of the EU institutions and the legitimate expectations that citizens have in respect of those institutions.










4.


Conduct on the part of the European Union which entails a sufficiently serious breach of rules of law conferring rights on and/or protecting individuals, which cannot be justified on the basis of the degree of discretion which those rules allow or their complexity or imprecision. The Commission’s negligence caused the applicants specific, actual and certain material damage, there being a clear causal link between the Commission’s conduct and that damage.










5.


In the alternative, it is alleged that the European Commission has incurred liability on account of its negligence in the negotiation and signing of the Monetary Agreement with the Principality of Andorra, which did not provide for defence and/or complaint mechanisms for the individuals concerned.






(*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

(1)  OJ 2014 L 173, p. 190.