1 By its appeal, Sberbank of Russia PAO, seeks to have set aside the order of the General Court of the European Union of 10 October 2023, Sberbank v Commission and SRB (T‑526/22, ‘the order under appeal’, EU:T:2023:628), by which the General Court dismissed as inadmissible its action, based on Article 263 TFEU, seeking annulment (i) of Decision SRB/EES/2022/20 of the Single Resolution Board (SRB) of 1 March 2022 relating to the adoption of a resolution scheme in respect of Sberbank banka d.d. (‘the decision of the SRB’), (ii) of Valuation Reports 1 and 2 in respect of Sberbank banka d.d., drawn up by the SRB on 27 and 28 February 2022 respectively (‘the valuation reports’), and (iii) of Commission Decision (EU) 2022/947 of 1 March 2022 endorsing the resolution scheme for Sberbank banka d.d. (OJ 2022 L 164, p. 63) (‘the Commission’s endorsement decision’).
2 Article 18(1)(a) and the first to third subparagraphs of Article 18(7) of 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), as amended by Regulation (EU) 2019/877 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 150, p. 226) (‘Regulation No 806/2014’), provides: ‘1. The Board shall adopt a resolution scheme pursuant to paragraph 6 in relation to entities and groups referred to in Article 7(2), and to the entities and groups referred to in Article 7(4)(b) and (5) where the conditions for the application of those paragraphs are met, only when it assesses, in its executive session, on receiving a communication pursuant to the fourth subparagraph, or on its own initiative, that the following conditions are met: … 7. Immediately after the adoption of the resolution scheme, the Board shall transmit it to the [European] Commission. Within 24 hours from the transmission of the resolution scheme by the Board, the Commission shall either endorse the resolution scheme, or object to it with regard to the discretionary aspects of the resolution scheme in the cases not covered in the third subparagraph of this paragraph. Within 12 hours from the transmission of the resolution scheme by the Board, the Commission may propose to the Council [of the European Union]:
3 Article 20(5)(a) and (f) and (15) of Regulation No 806/2014 provides: ‘5. The purposes of the valuation shall be: (a) to inform the determination of whether the conditions for resolution or the conditions for the write-down or conversion of capital instruments and eligible liabilities in accordance with Article 21 are met; …
4 The background to the proceedings is set out in paragraphs 2 to 12 of the order under appeal and may be summarised as follows for the purpose of the present proceedings.
5 The appellant, which has its registered office in Russia, is the largest bank in the Russian Federation. It holds all (100%) of the shares in Sberbank Europe AG, which, at the material time, was a credit institution established in Austria with subsidiaries in Member States and in third States, including Sberbank banka d.d., a credit institution established in Slovenia (‘Sberbank Slovenia’), in which it held almost all of the shares (99.99%).
6 Sberbank Europe and its subsidiaries, including Sberbank Slovenia, formed a group.
7 Sberbank Slovenia’s liquidity situation deteriorated following the geopolitical tensions between the Russian Federation and Ukraine, which culminated in Russia’s invasion of the latter on 24 February 2022. Following a finding by the European Central Bank (ECB) on 27 February 2022 that Sberbank Slovenia was failing or likely to fail, the SRB adopted Valuation Report No 1 in order to determine, inter alia, whether the conditions for resolution were met, in accordance with Article 20(5)(a) of Regulation No 806/2014. Subsequently, in accordance with Article 20(5)(f) of that regulation, the SRB adopted Valuation Report No 2 in order to provide the information necessary for the adoption of a decision on the transfer of the shares in that credit institution to a potential buyer. The SRB then adopted the decision referred to in paragraph 1 above on the adoption of a resolution scheme in respect of Sberbank Slovenia.
8 That decision, addressed to Banka Slovenije (Bank of Slovenia), provided for the sale of Sberbank Slovenia in the form of a transfer of its shares to a third-party banking institution. It gave rise to the Commission’s endorsement decision on 1 March 2022.
9 By the order under appeal, adopted on the basis of Articles 126, 129 and 130 of its Rules of Procedure, the General Court dismissed the action, which the appellant had brought on 20 August 2022 for annulment of the decision of the SRB, of the valuation reports and of the Commission’s endorsement decision, as inadmissible in its entirety. The General Court held that the condition of direct concern relating to the appellant, as referred to in the fourth paragraph of Article 263 TFEU, was not satisfied in that the decision of the SRB and the Commission’s endorsement decision did not directly affect the appellant’s legal situation, while the valuation reports were preparatory acts that were not challengeable. Having regard to the inadmissibility of the action, the General Court held that there was no need to rule on the application to intervene made by the ECB.
10 The appellant claims, in essence, that the Court of Justice should: - set aside the order under appeal; - refer the case back to the General Court for consideration on the merits; and - order the SRB and the Commission to pay the costs of the appeal and of the proceedings at first instance.
11 The Commission contends that the Court should: - dismiss the appeal as manifestly unfounded; and - order the appellant to pay the costs of the appeal and of the proceedings at first instance.
12 The SRB contends that the Court should: - dismiss the appeal; - alternatively, refer the case back to the General Court for final judgment; - in the further alternative, if the Court of Justice were to give final judgment in the matter, dismiss the action; and - order the appellant to pay the costs.
13 In support of its appeal, the appellant relies on three grounds of appeal, of which the first and second allege infringement of the fourth paragraph of Article 263 TFEU and the third an error of law by the General Court, consisting of a misinterpretation of its heads of claim.
14 In the first ground of appeal, which is divided into five limbs, the appellant claims that the General Court erred in finding that it was not directly affected either by the decision of the SRB or by the Commission’s endorsement decision.
15 By a first limb, the appellant submits that the General Court erred in law in that it failed to examine the extent to which it was directly affected by the decision of the SRB and the Commission’s endorsement decision since it did not take into account the effects of those decisions on the rights it held, which are legal in nature and not economic.
16 By a second limb, the appellant submits that the General Court did not duly examine the legal effects on it of the decision of the SRB and the Commission’s endorsement decision. Moreover, the General Court likewise failed to examine, or even distorted, the evidence which the appellant had provided in order to demonstrate that those decisions did indeed produce effects of a legal nature on it.
17 By a third limb, the appellant submits that, by failing duly to examine the evidence, the General Court also infringed the obligation to state reasons and the rules applicable to the taking and appraisal of evidence.
18 By a fourth limb, the appellant claims that the General Court erred in law in that it applied to the facts of the case before it, by analogy, the outcome of the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923). The decision at issue in the case which gave rise to that judgment, which moreover did not concern a banking group, had only economic effects. However, the decision of the SRB and the Commission’s endorsement decision produced effects of a legal nature on the appellant, altering its legal position.
19 By a fifth limb, the appellant submits that the General Court erred in law by finding, in paragraph 34 of the order under appeal, that the decision of the SRB and the Commission’s endorsement decision did not concern Sberbank Europe and that, therefore, they did not affect any of the appellant’s rights that it held as a shareholder of that latter group.
20 In the second ground of appeal, which is divided into three limbs, the appellant complains that the General Court, in paragraphs 33, 37, 38, 39 and 40 of the order under appeal, adopted an overly narrow definition of the concept of ‘direct concern’ in the light of the facts of the case and the evidence submitted to it.
21 By a first limb, the appellant repeats in part the argument that the General Court erred in law in finding that it had no property or management right in respect of Sberbank Slovenia. In particular, the General Court disregarded the concept of ‘banking group’, which serves to establish the appellant’s status as ‘ultimate parent’.
22 By a second limb, the appellant pleads an error of law on the part of the General Court on the ground that the latter failed to take into consideration such important and decisive economic effects as those caused to it by the decision of the SRB and the Commission’s endorsement, while requiring that those decisions bring about a legal change in its situation.
23 By a third limb, the appellant submits that the General Court erred in law by taking the view, in essence, that the appellant could at most claim an effect on its economic situation and not an effect on its legal situation.
24 The SRB contends as a preliminary point that several of the appellant’s arguments in support of the first two grounds of appeal are inadmissible. For the rest, it contends, as does the Commission, that those two grounds of appeal should be dismissed as unfounded.
25 In the first two grounds of appeal, which it is appropriate to examine together, the appellant’s challenge concerns the analysis of the admissibility of the action carried out by the General Court, in the light of the provisions of the fourth paragraph of Article 263 TFEU.
26 As is apparent from paragraph 26 of the order under appeal, the General Court held that it was not necessary to examine whether the decision of the SRB constituted a preparatory act which was not open to challenge by an action for annulment, as the Commission maintained, or whether, on the contrary, it was an act that produced its own legal effects and that could be the subject matter of an action. The General Court examined the decision of the SRB and the Commission’s endorsement decision together and held that the appellant was not directly concerned by those decisions for the purposes of the fourth paragraph of Article 263 TFEU.
27 However, in the judgment of 18 June 2024, Commission v SRB (C‑551/22 P, EU:C:2024:520, paragraphs 88 and 89), the Court of Justice held that a resolution action adopted by the SRB under Articles 7 and 18 of Regulation No 806/2014 did not produce binding legal effects capable of affecting the interests of a legal or natural person, with the result that it did not constitute an act against which an action for annulment may be brought under the fourth paragraph of Article 263 TFEU and that, therefore, only the decision endorsing such an action, adopted by the Commission, produced binding effects.
28 Consequently, without it being necessary to examine the first two grounds of appeal in so far as they contest the finding that the action, where directed against the decision of the SRB, was inadmissible, the operative part of the order under appeal which dismisses the action against that decision as inadmissible is well founded on the legal ground that it is not open to challenge, which must be substituted for the legal ground relied upon by the General Court.
29 As regards the Commission’s endorsement decision, the General Court stated that, in accordance with the fourth paragraph of Article 263 TFEU, a natural or legal person may only institute proceedings against a decision addressed to another person if that decision is of direct and individual concern to that natural or legal person. In that regard, it has been observed that two cumulative criteria must be met in order for the condition of direct concern to be fulfilled. First, the contested measure must directly affect the legal situation of the individual. Second, the contested measure must leave no discretion to its addressees who are entrusted with the task of implementing it, that implementation being purely automatic and resulting from EU rules alone, without the application of other intermediate rules (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66 and the case-law cited).
30 In order to find that the Commission’s endorsement decision did not directly affect the appellant’s legal situation in terms of the case-law, the General Court first referred, in paragraph 33 of the order under appeal, to the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 110 and 111). It held that since the appellant was not a shareholder of Sberbank Slovenia, it had no right to dispose of the assets of that credit institution, to receive dividends or to participate in its management, since those rights belonged to the sole shareholder of that credit institution, namely Sberbank Europe.
31 The General Court then stated, in paragraph 34 of the order under appeal, that the Commission’s endorsement decision did not concern Sberbank Europe, which was a separate legal person from Sberbank Slovenia, and that, therefore, that decision did not affect any of the rights available to the appellant in respect of Sberbank Europe in its capacity as a shareholder.
32 The arguments made by the appellant in order to call into question that analysis by the General Court, in both the first and second grounds of appeal, must be rejected.
33 As regards the first and fifth limbs of the first ground of appeal, the appellant submits that the General Court erred in law in failing to take into consideration the effects of the Commission’s endorsement decision on the rights which it held, which are legal in nature and not economic, and also in so far as it held, in paragraph 34 of the order under appeal, that that decision did not concern Sberbank Europe and that, therefore, it did not affect any of the rights available to the appellant as shareholder of that credit institution.
34 In that regard, it should be observed that although the appellant, as the sole shareholder of Sberbank Europe, of which Sberbank Slovenia was a subsidiary, was in a position to exercise a certain amount of influence over the latter, through Sberbank Europe, that influence did not derive from the appellant’s own right over Sberbank Slovenia. Accordingly, as the General Court found in paragraphs 45 and 46 of the order under appeal, since the appellant was not a shareholder of Sberbank Slovenia, it was not able, in legal terms, to participate in its management. It follows that the General Court did not err in finding that the appellant did not hold the right to dispose of Sberbank Slovenia’s assets, to receive dividends from that credit institution and to participate in its management. Consequently, the appellant cannot complain that the General Court failed to take account of the effects of the Commission’s endorsement decision on such rights, which are legal in nature.
35 The first and fifth limbs of the first ground of appeal must therefore be rejected as unfounded.
36 Furthermore, the claim of distortion, or even of an incomplete examination of the facts purported to demonstrate that the Commission’s endorsement decision produced legal effects with regard to the appellant, put forward under the second limb of the first ground of appeal, is likewise unfounded and must be rejected. By that line of argument, the appellant is in fact seeking to call into question the General Court’s assessment of the facts. However, in accordance with the settled case-law of the Court of Justice, criticism of the assessment of the facts by the General Court or the repetition of arguments already put forward before the General Court are inadmissible in an appeal (see, to that effect, judgment of 11 January 2024, Planistat Europe and Charlot v Commission, C‑363/22 P, EU:C:2024:20, paragraph 41 and the case-law cited). The second limb of the first ground of appeal must therefore be rejected as inadmissible.
37 Similarly, as regards the claim of a failure to state reasons, on the ground that the General Court did not rule on the probative value of various documents intended to demonstrate that the Commission’s endorsement decision had legal effects on the appellant, it must be stated that the appellant, by that claim, is repeating arguments already made before the General Court. However, such arguments are inadmissible in an appeal. The third limb of the first ground of appeal must therefore be rejected as inadmissible.
38 Lastly, as regards the purportedly erroneous reference to the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), it is true that that judgment concerns a loss of rights by the direct - not indirect - shareholders of a company following its liquidation. However, the considerations set out in that judgment are applicable to an indirect shareholder. Indeed, the legal situation of such a shareholder will be even less affected where there is an intermediate company between it and the company which, as in the present case, is subject to the sale by transfer of its shares to a third party. Furthermore, contrary to what the appellant claims, and as is shown by the assessment of the first and fifth limbs of the present ground of appeal, the Commission’s endorsement decision did not produce effects of a legal nature with regard to the appellant, but only had, like the decision at issue in the aforementioned judgment, economic effects on its situation. Consequently, the fourth limb of the first ground of appeal must be rejected as unfounded.
39 As regards the second ground of appeal, alleging that the General Court erred in interpreting, in the light of the circumstances of the case, the concepts of ‘property’ and ‘banking group’, it should be observed that the General Court stated in paragraphs 38 to 40 of the order under appeal, first, that, since the appellant was not a shareholder of Sberbank Slovenia, it could not claim that it had property rights in respect of that credit institution and, second, that the fall in the value of the shares which the appellant held in the capital of Sberbank Europe as a result of the forced sale of Sberbank Slovenia did not demonstrate that the appellant’s legal situation had been affected, but attested to the existence of the economic effects on its situation caused by the resolution decisions. However, in so doing, the General Court did not err in the definition of the right to property. In addition, since the General Court, in paragraphs 44 to 48 of the order under appeal, rejected the appellant’s argument based on the fact that it managed the Sberbank Europe group and that that management of the group affected the management of Sberbank Slovenia as an entity belonging to that group, the appellant cannot complain that the General Court failed to take into account its status as ‘ultimate parent’, with total control of the Sberbank group, which is not relevant in the present case.
40 As regards a failure to take into account effects of an economic nature on the appellant’s situation, the approach taken by the General Court is entirely consistent with the case-law of the Court of Justice as regards the definition of effects of a legal nature, as set out in paragraph 29 above, and is therefore not indicative of any error of law. The second limb of the second ground of appeal must therefore be rejected as unfounded.
41 In addition, to the extent that the appellant alleges a breach of its right to property, consisting of financial interests, those interests merge with those of the direct shareholder of Sberbank Slovenia, namely Sberbank Europe, such that they are only indirectly affected by the consequences of the Commission’s endorsement decision on Sberbank Slovenia (see, by analogy, order of the President of the Court of Justice of 13 November 2019, Commission v Italy and Others, C‑425/19 P, EU:C:2019:980, paragraph 23 and the case-law cited). The third limb of the second ground of appeal must therefore be rejected as unfounded.
42 In the light of all the foregoing considerations, it is apparent that all of the appellant’s arguments seeking to call into question the General Court’s assessment of its lack of standing must be rejected since they are either inadmissible or unfounded. The first and second grounds of appeal must thus be rejected in their entirety.
43 The appellant claims that the General Court erred in law since it misinterpreted its heads of claim. Accordingly, the General Court was wrong to dismiss as inadmissible the claim for annulment of the valuation reports, with the appellant not having intended to challenge those reports separately from the decision of the SRB.
44 The Commission and the SRB contend, in essence, that the third ground of appeal should be rejected as ineffective and, in any event, as unfounded.
45 It should be noted that the appellant, in its application before the General Court, had sought, in the same head of claim, the annulment of the decision of the SRB, the Commission’s endorsement decision and the valuation reports, but without specifying whether or not it wished to challenge the lawfulness of those reports separately.
46 In that regard, it must be stated that it is clear from the wording of Article 20(15) of Regulation No 806/2014 that valuation reports, if disputed, cannot be challenged separately from the decision of the SRB.
47 However, it must be found that, in the present case, the fact that the valuation reports may have been challenged in conjunction with the decision of the SRB could be of no consequence since, in any event, the General Court, without committing any error, dismissed the action as inadmissible in its entirety. Consequently, the third ground of appeal must be rejected as ineffective.
48 Since the appellant has been unsuccessful in all its arguments, the appeal must be dismissed.
49 In accordance with the Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.
50 Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
51 In the present case, since the appellant has been unsuccessful in its appeal, it must be ordered to bear its own costs and to pay those incurred by the Commission and the SRB, in accordance with the forms of order sought by the latter parties. 1. Dismisses the appeal; 2. Orders Sberbank of Russia PAO to bear its own costs and to pay those incurred by the European Commission and the Single Resolution Board (SRB).