Case C-536/24 P: Appeal brought on 6 August 2024 by the Single Resolution Board against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 29 May 2024 in Case T-395/22, Hypo Vorarlberg Bank AG v Single Resolution Board
Date: 2024-08-06
Institutions: Court of Justice
Subjects: EU banking union, bank, bank resolution, company in difficulties, financing method, financing plan, fund (EU)








C_202405411EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/5411


16.9.2024






Appeal brought on 6 August 2024 by the Single Resolution Board against the judgment of the General Court (Eighth Chamber, Extended Composition) delivered on 29 May 2024 in Case T-395/22, Hypo Vorarlberg Bank AG v Single Resolution Board


(Case C-536/24 P)

(C/2024/5411)
Language of the case: German

Parties


Appellant: Single Resolution Board (represented by: D. Ceran, C. De Falco, H. Ehlers and K.-P. Wojcik, acting as Agents, and by H.-G. Kamann and P. Gey, Rechtsanwälte)

Other parties to the proceedings: Hypo Vorarlberg Bank AG, Council of the European Union, European Parliament

Form of order sought

The Single Resolution Board claims that the Court should:






—


set aside the judgment of the General Court of 29 May 2024 in Case T-395/22, Hypo Vorarlberg Bank v Single Resolution Board; (1)











—


dismiss the action or, in the alternative, refer the case back to the General Court;










—


in the alternative, order that the effects of the decision at issue be maintained for a period of 30 months from the date of delivery of the judgment in the present appeal proceedings; and










—


order Hypo Vorarlberg Bank AG to pay the costs of the proceedings at first and second instance.





Grounds of appeal and main arguments

The Single Resolution Board (SRB) submits that the Court should set aside the judgment under appeal by which the General Court annulled the SRB’s decision of 11 April 2022
             (2) on the calculation of ex ante contributions to the Single Resolution Fund, in so far as it concerns Hypo Vorarlberg Bank. In that regard, the SRB relies on a total of five grounds of appeal.
First, the SRB claims that the General Court erred in law in finding, in paragraphs 23 to 43 and, in particular, in paragraphs 32 to 41 of the judgment under appeal, that the conferral of implementing powers on the Council pursuant to Article 70(7) of Regulation (EU) No 806/2014 (3) was not sufficiently reasoned as a ‘duly justified specific case’ within the meaning of Article 291(2) TFEU. The General Court went beyond the standard of reasoning required by case-law and disregarded the reasoning contained in recital 114 of Regulation No 806/2014, which must be assessed in its specific context.
Secondly, the SRB claims that the General Court, in arriving at its findings in paragraphs 45 to 87 of the judgment under appeal, misinterpreted Article 70(7) of Regulation (EU) No 806/2014 and misunderstood Article 8(1) of Implementing Regulation (EU) 2015/81. (4) In particular, the General Court erred in law by categorising Article 8(1) of Implementing Regulation 2015/81 as an amendment to the calculation methodology provided for in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014, thus disregarding the transitional nature of that provision.
Thirdly, the SRB criticises the General Court for misinterpreting Article 69(1) of Regulation No 806/2014. The General Court found that the SRB should have estimated the target level ‘with sufficient care’ and in a ‘conservative’ manner (paragraphs 125 to 126 of the judgment under appeal). That means, in essence, that the SRB should have purposely overestimated the target level by a significant margin in order to ensure cumulative compliance with the 12.5 % cap and with the rule that the forecast target level must reach 1 % of the amount of covered deposits in the banking union by the end of the initial period (1 % rule). That approach is contrary to the principles of legal certainty, sound administration and proportionality, infringes the Meroni doctrine and is intrinsically inconsistent.
Fourthly, the SRB claims that the General Court, in paragraphs 114 to 127, erred in law in interpreting the supposedly clear and unambiguous wording of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 as meaning that the 12.5 % cap must be applied strictly in all circumstances during the initial period. Not only is the reasoning for this contradictory and circular, but the General Court’s interpretation also disregards the context and purpose of the provision.
Fifthly and finally, the SRB submits that the General Court erred in law and failed to assess the factual and legal circumstances as they existed at the time when the decision at issue was adopted. Rather, the General Court assessed the question whether the SRB can simultaneously comply with both the 12.5 % cap and the 1 % rule on the basis of an option that only existed in 2016, namely that of overestimating the forecast target level from the start of the initial period, and thus applied an incorrect basis for assessment.


(1)  EU:T:2024:333.

(2)  SRB/ES/2022/18

(3)  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 (OJ 2014 L 225, p. 1).

(4)  Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1).


ELI: http://data.europa.eu/eli/C/2024/5411/oj
ISSN 1977-091X (electronic edition)