Case T-527/24: Action brought on 14 October 2024 – Diplomat Pay v ECB
Date: 2024-10-14
Institutions: General Court
Subjects: EU banking union, bank, banking supervision, discretionary power, operation of the Institutions, right to justice, rights of the defence, shareholding








C_202407359EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/7359


16.12.2024






Action brought on 14 October 2024 – Diplomat Pay v ECB


(Case T-527/24)

(C/2024/7359)
Language of the case: German

Parties


Applicant: Diplomat Pay d.o.o. Beograd-Zemun (Belgrade, Serbia) (represented by: W. Themmer, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:






—


annul the contested decision of the European Central Bank, with the reference ECB-SSM-2024-AT-4, of 13 August 2024;










—


order the European Central Bank to pay the costs of the proceedings.





Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law, the first of which is procedural in nature and the second of which is substantive in nature.






1.


First plea: infringement of the right of the applicant to due process (Article 22 of Regulation (EU) No 1024/2013 (1)) and fair trial and of its right to be heard (Article 31 of Regulation (EU) No 468/2014 (2)), in particular the right of access to the file (Article 32 of Regulation (EU) No 468/2014)
In the procedure conducted by the defendant against the applicant, the rights deriving from Article 6 of the ECHR and Article 47 of the Charter (3) were infringed. The defendant infringed the procedural rules of Regulation (EU) No 1024/2013, in particular the right of the party concerned to a fair hearing. The defendant also infringed the applicant’s right of access to the file.
Thus, the defendant prepared a draft decision and sent it to the applicant as the only information relating to the procedure initiated, without having informed the applicant beforehand of the investigation and of the accusation. The defendant granted the applicant a period of three days to submit comments on the allegations contained in the draft decision. After receiving those comments, the defendant did not investigate a single objection of the applicant and granted the applicant only partial access to the file.










2.


Second plea: infringement of the Treaties or of any legal rule relating to their application
The defendant errs in its legal assessment of the facts on which its decision is based and incorrectly applies the legal provision of Paragraph 20 of the BWG. (4) The defendant’s decision exceeds all margin of discretion. The defendant also fails to observe the principles of the Joint Guidelines on the prudential assessment of acquisitions and increases of qualifying holdings in the financial sector. (5) Those guidelines make clear that purchase agreements do not in themselves constitute a basis for inferring that persons are acting in concert.
Not a single document that was disclosed by the defendant in the procedure and to which the applicant was granted access supports the conclusion that the applicant, together with Alta Pay Group d.o.o., intends to acquire a qualified holding in Addiko Bank AG and that it may thus have infringed a notification requirement under Paragraph 20(1) of the BWG. Rather, the applicant clearly stated in the share purchase agreement that it concluded with Alta Pay that it does not wish to collaborate with Alta Pay in respect of the holding of Addiko Bank shares and the exercise of voting rights and that no provision of the share purchase agreement is to be interpreted as meaning that the applicant is required to do so.






(1)  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

(2)  Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1).

(3)  Charter of Fundamental Rights of the European Union (OJ 2016 C 202, p. 389).

(4)  Bundesgesetz über das Bankwesen ((Bankwesengesetz) (Austrian Law on the banking sector) (‘the BWG’), BGBl. No 532/1993, last amended by BGBl. I No 98/202).

(5)  Joint Guidelines on the prudential assessment of acquisitions and increases of qualifying holdings in the financial sector in accordance with Article 16 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC.


ELI: http://data.europa.eu/eli/C/2024/7359/oj
ISSN 1977-091X (electronic edition)