Case T-405/20: Action brought on 2 July 2020 — DZ Hyp v SRB
Date: 2020-07-02
Institutions: General Court
Subjects: EU banking union, banking supervision, company in difficulties, credit institution, financing plan, principle of legal certainty, principle of proportionality, right to justice, rights of the defence, use of languages








C_2020271EN.01005001.xml










17.8.2020   


EN


Official Journal of the European Union


C 271/50






Action brought on 2 July 2020 — DZ Hyp v SRB
(Case T-405/20)
(2020/C 271/63)
Language of the case: German

Parties


Applicant: DZ Hyp AG (Hamburg, Germany) (represented by: H. Berger and K. Helle, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:






—


annul the decision of the Single Resolution Board of 15 April 2020 on the calculation of contributions to the Single Resolution Fund collected in advance for 2020 (SRB/ES/2020/24), including its annexes, in so far as the contested decision, including Annex I and Annex II, concerns the applicant’s contribution;










—


order the defendant to pay the costs.





Pleas in law and main arguments

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






1.


First plea in law, alleging an infringement of the obligation to state reasons under Article 296(2) TFEU and Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’)
The applicant claims that the defendant should have given binding reasons for the decision in the German language. Furthermore, the defendant infringed the obligation to state reasons in several respects, since the decision, including its annexes, does not even in the English version declared binding give any indication of how and on what grounds the defendant calculated the applicant’s contribution.










2.


Second plea in law, alleging an infringement of the right to a fair hearing under Article 41(1) and (2)(a) of the Charter due to a failure to hear the applicant.










3.


Third plea in law, alleging an infringement of Article 81(1) of Regulation (EU) No 806/2014 of the European Parliament and of the Council (1) in conjunction with Article 3 of Council Regulation No 1 (2)











4.


Fourth plea in law, alleging an infringement of the principle of effective judicial protection under Article 47(1) of the Charter, inasmuch as it is practically impossible to review the decision by the courts










5.


Fifth plea in law, alleging an infringement of the second sentence of Article 7(4) of Delegate Regulation (EU) 2015/63 of the Commission (3) against higher-ranking law
The fifth plea alleges that the second sentence of Article 7(4) of Delegated Regulation (EU) No 2015/63 is contrary to Article 113(7) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (4) and Article 103(7)(b) of Regulation (EEC) No 2081/92. (h) of Directive 2014/59/EU of the European Parliament and of the Council, (5) as well as the requirement of risk-appropriate premium assessment, since the regulation permits an objectively inappropriate and disproportionate differentiation between the members of an institution-related protection scheme and a relativisation of the IPS indicator through the double consideration of the risk indicator for ‘trading activities, off-balance-sheet risks, derivatives, complexity and run-off capacity’ to the detriment of the institutions liable to pay contributions.
In addition, the provision infringes the principle of certainty, the requirement to take full account of the facts of the case and, in conjunction with other provisions of the Delegated Ordinance, provides for effective legal protection.










6.


Sixth plea in law, alleging an Infringement of higher-ranking law by the decision in applying the multiplier for the IPS (Institutional Protection Scheme) indicator
The applicant claims that the defendant has implemented the requirements of the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 in breach of Article 103(7)(h) of Directive 2014/59/EU, Article 113(7) of Regulation (EU) No 575/2013 and Articles 16, 20, 41 and 52 of the Charter and has not fully applied the IPS indicator to the applicant. A differentiation between the institutions at the level of the IPS indicator is contrary to the system and arbitrary because of the comprehensive protective effect of an institution-related guarantee scheme.










7.


Seventh plea in law, alleging an infringement of Articles 6, 7 and 9 of Delegate Regulation (EU) 2015/63 and Annex I to that delegate regulation against higher-ranking law
The seventh plea alleges that Articles 6, 7 and 9 of, and Annex I to, Delegate Regulation (EU) 2015/63 infringe the requirement of risk-appropriate premium assessment, Articles 16 and 20 of the Charter, the principle of proportionality and the requirement to take full account of the facts, in that the provisions lay down, on the basis of an idealistic picture, risk indicators and procedures and formulae for combining them which do not correspond to the actual situation of all institutions liable to pay contributions.










8.


Eighth plea in law, alleging an infringement of Article 16 of the Charter and of the principle of proportionality, in that the defendant calculated risk adjustment multiples which do not take full and proper account of the applicant’s significantly lower probability of liquidation










9.


Ninth plea in law, alleging an infringement of Articles 16, 20, 41 and 52 of the Charter, in that the defendant calculated the risk adjustment multiples in accordance with the provisions of Delegated Regulation (EU) 2015/63, without exercising its discretion to adjust the application of the risk indicators in the applicant’s case










10.


Tenth plea in law, alleging an infringement of the first and second sentences of Article 20(1) of Delegate Regulation (EU) 2015/63 against Article 103(7) of Directive 2014/59/EU and the requirement of risk-appropriate premium assessment










11.


Eleventh plea in law, alleging an infringement of Articles 4 to 9 of Delegate Regulation (EU) 2015/63 and Annex I to that delegate regulation against the principle of effective legal protection and the principle of legal certainty






(1)  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 (OJ 2014 L 225, p. 1).

(2)  Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 1958 L 17, p. 385).

(3)  Commission Delegated Regulation (EU) 2015/63 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).

(4)  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).

(5)  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 (OJ 2014 L 173, p. 190).