Case T-410/23: Action brought on 18 July 2023 — BAWAG PSK v SRB
Date: 2023-07-18
Institutions: General Court
Subjects: EU banking union, bank, bank resolution, company in difficulties, confidentiality, financing method, financing plan, judicial review, right to justice








C_2023321EN.01005701.xml










11.9.2023   


EN


Official Journal of the European Union


C 321/57






Action brought on 18 July 2023 — BAWAG PSK v SRB
(Case T-410/23)
(2023/C 321/63)
Language of the case: German

Parties


Applicant: BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG (Vienna, Austria) (represented by: F. Kruis and N. Bartmann, 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 2 May 2023 on the calculation of the 2023 ex-ante contributions to the Single Resolution Fund (SRB/ES/2023/23) together with annexes, at least in so far as it concerns the applicant;










—


order the Single Resolution Board to pay the costs.





Pleas in law and main arguments

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






1.


First plea in law, alleging that the decision of 2 May 2023 and annexes thereto infringe Article 70(2) of Regulation (EU) No 806/2014 (1) on account of not complying with the limits provided for in that provision whereby the contributions to be paid by all institutions are not to exceed 12,5 % of the annual target level.










2.


Second plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful in that they infringe Articles 6, 7 and 20(1) of Delegated Regulation (EU) 2015/63 (2) in that the defendant did not take account of the risk indicator Minimum Requirements for Own Funds and Eligible Liabilities (‘MREL’) or the risk indicators ‘complexity’ and ‘resolvability’.










3.


Third plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful, if Article 20 of Delegated Regulation (EU) 2015/63 should be interpreted as meaning that failing to take into account the (sub-) risk indicators of complexity and resolvability is permissible. In that case Article 20 of Delegated Regulation (EU) 2015/63 infringes Article 103(7) of Directive 2014/59/EU (3) and point (b) of the second subparagraph of Article 70(2) of Regulation (EU) 806/2014. The decision of 2 May 2023 would therefore be based on that infringement also.










4.


Fourth plea in law, alleging infringement of Articles 6(4), 9(1) and (2) in conjunction with Annex I to Delegated Regulation (EU) 2015/63 since, contrary to Article 6(4) of that regulation, interbank loans and deposits in the EU and not in the Member States of the banking union were taken into account.










5.


Fifth plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful because the defendant’s calculation of the applicant’s contribution is substantively incorrect.










6.


Sixth plea in law, alleging the decision of 2 May 2023 and annexes thereto infringe essential procedural requirements within the meaning of the second paragraph of Article 263 TFEU and the right to good administration in that they do not contain an adequate statement of reasons within the meaning of the second paragraph of Article 296 TFEU.










7.


Seventh plea in law, alleging that the decision of 2 May 2023 and annexes thereto infringe the right to an effective legal remedy under the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (4) since the failure to state adequate reasons meeting the requirements laid down in Article 41(2)(c) of the Charter makes it practically impossible to subject the accuracy of the decision to effective judicial review.










8.


Eighth plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful and infringe the applicant’s rights since the legal provisions forming the basis for that decision, the second subparagraph of Article 70(2) of Regulation (EU) 806/2014 and Article 103(2) of Directive 2014/59/EU, are in themselves unlawful, as they require a comparative assessment of the institution concerned which is based on the commercial confidentiality of the institution concerned and thus hindering effective judicial protection of the institution concerned from the outset.






(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)  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).

(3)  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).

(4)  
            OJ 2012, C 326, p. 391.