Case T-440/23: Action brought on 27 July 2023 — Berlin Hyp v SRB
Date: 2023-07-27
Institutions: General Court
Subjects: EU banking union, bank, bank resolution, financing method, financing plan, infringement of EU law, judicial review, official language, principle of proportionality, right to justice








C_2023321EN.01006801.xml










11.9.2023   


EN


Official Journal of the European Union


C 321/68






Action brought on 27 July 2023 — Berlin Hyp v SRB
(Case T-440/23)
(2023/C 321/77)
Language of the case: German

Parties


Applicant: Berlin Hyp AG (Berlin, Germany) (represented by: H. Berger, M. Weber and D. Schoo, lawyers)

Defendant: Single Resolution Board

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 the contested decision together with Annexes I, II and III concern the applicant,










—


order the SRB to pay the costs.




In the alternative, in the event that the Court takes the view that the contested decision is legally non-existent as a result of the use of the incorrect official language by the SRB and the action for annulment would therefore be inadmissible on the ground that it would be devoid of purpose, the applicant claims that the Court should:






—


declare that the contested decision is legally non-existent;










—


order the SRB to pay the costs.





Pleas in law and main arguments

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






1.


First plea in law, alleging that the decision infringes Article 81(1) of Regulation (EU) No 806/2014 (1) in conjunction with Article 3 of Regulation No 1, (2) since it is not worded in German, which is the language chosen by the applicant.










2.


Second plea in law, alleging that the decision infringes the obligation to state reasons laid down in the second paragraph of Article 296 TFEU and Articles 41(1) and 41(2)(c) of the Charter of Fundamental Rights of the European Union (3) and the fundamental right to effective judicial protection under the first paragraph of Article 47 of the Charter, because it contains instances of failure to state reasons and a judicial review of the decision is practically impossible.










3.


Third plea in law, alleging that the decision infringes Articles 69 and 70 of Regulation (EU) No 806/2014 and Articles 16, 17, 41 and 53 of the Charter, because the defendant erroneously determined the annual target level; in the alternative, Articles 69 and 70 of Regulation (EU) No 806/2014 infringe higher-ranking law.










4.


Fourth plea in law, alleging that the second subparagraph of Article 7(4) of Delegated Regulation (EU) 2015/63 (4) infringes higher-ranking law, because it allows for an objectively inappropriate and disproportionate differentiation to be made between the members of an Institutional Protection Scheme (‘IPS’) and for the IPS indicator to be relativised.










5.


Fifth plea in law, alleging in the alternative that the decision infringes the requirements of the applicable primary and secondary law concerning the determination of the IPS indicator.










6.


Sixth plea in law, alleging that Article 6 and Step 2 of Annex I to Delegated Regulation (EU) 2015/63 infringe higher-ranking law because they fail to observe the principles of the Meroni (5) case-law, in that the Commission exceeded the areas of competence conferred on it and that they infringe the requirement to assess contributions in a risk-appropriate manner, the principle of proportionality and the requirement to take full account of the facts.










7.


Seventh plea in law, alleging in the alternative that the decision infringes Articles 16, 20 and 52 of the Charter and the principle of proportionality, because it is based on clear errors of assessment concerning the determination of the risk indicators in Risk Pillar IV.










8.


Eighth plea in law, alleging that the decision infringes Articles 16, 20, 41 and 52 of the Charter and the principle of proportionality and the right to good administration, because the risk adjustment was erroneous.










9.


Ninth plea in law, alleging that the first and second sentences of Article 20(1) of Delegated Regulation (EU) 2015/63 infringe higher-ranking law, because the regulation provides for the non-application of one or more risk indicators for an indefinite period where the information required therefor is not subject to a supervisory reporting requirement.






(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, English Special Edition 1952-1958, p. 59)

(3)  
            OJ 2012 C 326, p. 391.

(4)  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).

(5)  Judgment of 13 June 1958, Meroni v High Authority, 10/56, EU:C:1958:8.