1 By its appeal, the appellant, 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 SRB (T‑527/22, ‘the order under appeal’, EU:T:2023:629), by which the General Court dismissed as inadmissible the action brought by the appellant, based on Article 263 TFEU, for annulment of Decision SRB/EES/2022/19 of the Single Resolution Board (SRB) of 1 March 2022 not to adopt a resolution scheme in respect of Sberbank Europe AG (‘the decision of the SRB’), and of Valuation Report 1 in respect of Sberbank Europe of 27 February 2022, drawn up by the SRB (‘the valuation report’).
2 Article 18(1)(a) 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: ‘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: …’
3 Article 20(5)(a) 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; 15. The valuation shall be an integral part of the decision on the application of a resolution tool or on the exercise of a resolution power or the decision on the exercise of the write-down or conversion power of capital instruments and eligible liabilities in accordance with Article 21. The valuation itself shall not be subject to a separate right of appeal but may be subject to an appeal together with the decision of the Board.
4 The background to the proceedings is set out in paragraphs 2 to 10 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 of the European Union, including Sberbank Croatia and Sberbank Slovenia, and in third States.
6 Sberbank Europe and its subsidiaries formed a group.
7 Sberbank Europe’s liquidity situation deteriorated as a result of 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 Europe was failing or likely to fail, the SRB, in accordance with Article 20(5)(a) of Regulation No 806/2014, adopted a valuation report in order to determine, inter alia, whether the conditions for resolution were met. The SRB subsequently adopted the decision referred to in paragraph 1 above not to adopt a resolution scheme in respect of Sberbank Europe.
8 That decision, addressed to the Finanzmarktaufsicht (Financial Market Authority, Austria), in its capacity as the national resolution authority, provided that Sberbank Europe was not to be placed under resolution since the condition that such a measure should be necessary in the public interest, laid down in the first subparagraph of Article 18(1) of Regulation No 806/2014, was not satisfied.
9 By the order under appeal, adopted on the basis of Articles 126 and 129 of its Rules of Procedure, the General Court dismissed the action, which the appellant had brought on 22 August 2022 for annulment of the decision of the SRB and of the valuation report, 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 did not directly affect the appellant’s legal situation, while the valuation report was a preparatory act that was 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 to pay the costs of the appeal and of the proceedings at first instance.
11 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.
12 By document lodged at the Registry of the Court of Justice on 20 February 2025, the appellant applied for an order for the reopening of the oral part of the procedure, pursuant to Article 83 of the Rules of Procedure of the Court of Justice.
13 In support of that application, the appellant submits that the parties should take a position on the judgment of the European Court of Human Rights (ECtHR) of 4 July 2024 in the case of Rustamkhanli v. Azerbaijan (CE:ECHR:2024:0704JUD002446016). It states that that judgment is decisive for the outcome of the present case as regards the assessment of the first ground of appeal, since it in essence provides clarification on the status of ‘victim’, within the meaning of Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, with respect to a company, according to whether it is owned by several shareholders or a sole shareholder.
14 In that regard, in accordance with Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties.
15 However, in the present case the Court considers that it has all the information necessary to make a ruling. Furthermore, the application to reopen the oral part of the procedure lodged by the appellant does not show that the present case should be decided on the basis of an argument which has not been debated between the parties, nor does it contain any new fact which is of such a nature as to be a decisive factor for the decision which the Court is called upon to give in this case.
16 As shown by the reasons put forward in support of the application to reopen the oral part of the procedure, the judgment of the ECtHR referred to paragraph 13 above concerns ‘victim’ status within the meaning of Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the distinction to be made in that regard according to whether a company is owned by several shareholders or by a sole shareholder. However, such an assessment bears no relation to the question of whether a legal person such as the appellant, in its capacity as sole shareholder of another entity, is directly affected, for the purposes of the fourth paragraph of Article 263 TFEU, by a decision of the SRB not to adopt a resolution scheme in respect of that latter entity.
17 In those circumstances, the Court considers, after hearing the Advocate General, that there is no need to order the reopening of the oral part of the procedure.
18 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.
19 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 by the decision of the SRB.
20 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 since it did not take into account the effects of that decision on the rights it held, which are legal in nature and not economic.
21 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. Moreover, the General Court likewise failed to examine, or even distorted, the evidence which the appellant had provided in order to demonstrate that that decision did indeed produce effects of a legal nature on it. That evidence included, inter alia, the appellant’s Charter and information relating to the planned sale as a package of Sberbank Europe’s subsidiaries.
22 By a third limb, the appellant claims that, by failing duly to examine the evidence, the General Court also infringed its obligation to state reasons and the rules applicable to the taking and appraisal of evidence.
23 By a fourth limb, the appellant submits that the General Court distorted the facts in finding that the decision of the SRB did not have the effect of requiring the financial markets supervisory authority to adopt certain measures, in particular the withdrawal of its banking licence.
24 By a fifth 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) and of the order of 14 May 2020, Bernis and Others v SRB (T‑282/18, EU:T:2020:209). It submits that while the decision at issue in that judgment, which moreover did not concern a banking group, had only economic effects, the decision of the SRB produced effects of a legal nature on the appellant which altered its legal position. Furthermore, the aforementioned order concerned only two SRB non-resolution decisions, whereas, in the case which gave rise to the order under appeal, there were, in parallel to the decision of the SRB, two separate decisions which the SRB adopted on the resolution of Sberbank Europe’s Slovenian and Croatian subsidiaries. Accordingly, the situations in question were not comparable.
25 In the second ground of appeal, which is divided into four limbs, the appellant complains that the General Court 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.
26 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 Europe and in disregarding the concept of ‘banking group’, which serves to establish the appellant’s status as ‘ultimate parent’.
27 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 the fact that the appellant exercised pervasive control over the management of Sberbank Europe, as was apparent from its active participation in the development of a resolution plan for the latter, which the SRB had adopted in 2021, which had made it possible to maintain the structure of the Sberbank group without ‘unbundling’ it.
28 By a third limb, the appellant submits that the General Court erred in law by disregarding the fact that the decision of the SRB affected its legal situation as parent company of the Sberbank group, all of whose members were interconnected in terms of their management, governance and shareholding.
29 By a fourth limb, the appellant submits that the General Court erred in law by failing to take into consideration such important and decisive economic effects on it as those generated by the decision of the SRB.
30 The SRB contends as a preliminary point that several of the appellant’s arguments in support of the appeal are inadmissible. For the rest, it contends that the first two grounds of appeal should be dismissed as unfounded.
31 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.
32 As regards the decision of the SRB, the General Court stated that, in accordance with the fourth paragraph of Article 263 TFEU, a natural or legal person could only institute proceedings against a decision addressed to another person if that decision was of direct and individual concern to that natural or legal person. In that regard, it observed that two cumulative criteria had to 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).
33 In order to find that the decision of the SRB did not produce any direct effects on the appellant’s legal situation, the General Court referred, in paragraphs 26 to 29 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), and to the order of 14 May 2020, Bernis and Others v SRB (T‑282/18, EU:T:2020:209, paragraph 40). It stated that the decision of the SRB provided that no resolution scheme would be adopted in respect of Sberbank Europe, with the result that it had effects on the legal position of that credit institution. However, according to the General Court, the appellant’s status solely as a shareholder, which entails the right to receive dividends and to participate in the management of Sberbank Europe, was not affected by the decision of the SRB. Accordingly, the appellant had at most been subjected to an effect that was economic and not legal in nature, which did not make it possible to establish that it was directly concerned by the decision of the SRB, for the purposes of the fourth paragraph of Article 263 TFEU.
34 The arguments made by the appellant in both the first and second grounds of appeal in order to challenge that analysis by the General Court must be rejected.
35 As regards the first and second limbs of the first ground of appeal, it should be pointed out that the findings that the General Court set out as regards, in essence, the lack of direct concern to the appellant in the light of its status solely as a shareholder, were made following a review of the elements characterising the legal and factual context of the case before it. In addition, in paragraphs 31 to 47 of the order under appeal, the General Court adopted a position on the various arguments put forward by the appellant to demonstrate that it was directly affected by the decision of the SRB. In that context, the General Court in particular assessed and rejected the appellant’s arguments based on rights it held relating to the management of Sberbank Europe and on factors relating to the plan for the sale of Sberbank Europe’s subsidiaries as a package. Moreover, none of the evidence adduced by the appellant demonstrates that the General Court distorted the facts when it found that the appellant retained the right to receive dividends and to participate in the management of Sberbank Europe.
36 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).
37 In those circumstances, the first and second limbs of the first ground of appeal must be rejected as inadmissible.
38 As regards the third limb of the first ground of appeal, alleging a failure to state reasons that affects the assessment and taking into account of the evidence submitted by the appellant, it is apparent that that complaint amounts in reality to calling into question the considerations of the General Court in relation to the effects on the appellant of the decision of the SRB. Yet the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 130 and the case-law cited).
39 However, that complaint constitutes a questioning of the merits of the grounds of the order under appeal and, therefore, of the assessments of the General Court, which is not permitted in the context of an appeal. The third limb of the first ground of appeal must therefore be rejected as unfounded.
40 As regards the fourth limb of the first ground of appeal, the appellant merely seeks a fresh assessment of the facts in comparison with that carried out by the General Court when it held, in essence, that the decision of the SRB did not have the effect of requiring the financial markets supervisory authority to adopt certain measures. Merely contesting the General Court’s assessment of the facts, as set out in this limb of the ground of appeal, although there is no suggestion that the facts in question have been distorted, must perforce be rejected as inadmissible.
41 As regards the fifth limb of the first ground of appeal, alleging an 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), and to the order of 14 May 2020, Bernis and Others v SRB (T‑282/18, EU:T:2020:209), it is true that those decisions concern factual situations which differ from those in the case which gave rise to the order under appeal. However, the considerations set out in those rulings are entirely relevant for defining the legal and/or economic effects of a decision adopted by the SRB with respect to the direct shareholders of a credit institution. In fact, first, the differences referred to by the appellant are factual in nature, with the result that they do not affect the relevance of those rulings in the present case for the legal assessment of the effects of the decision of the SRB. Furthermore, contrary to what the appellant submits, and as is apparent from the examination of the first to fourth limbs of this ground of appeal, the decision of the SRB did not produce any legal effects with regard to the appellant, but merely had, as with the decision at issue in 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), economic effects on its situation. Consequently, this limb must be rejected as unfounded.
42 As regards the first limb of the second ground of appeal, alleging that the General Court erred in finding that the appellant had no property or management right in Sberbank Europe and disregarded the concept of ‘banking group’, which made it possible to establish the appellant’s status as ‘ultimate parent’, that limb must be rejected as unfounded. In that regard, it should be observed that, in paragraphs 41 to 44 of the order under appeal, the General Court set out the reasons why the decision of the SRB had not affected the appellant’s right to dispose, as a whole, of the assets corresponding to the subsidiaries of the Sberbank Europe group and also its right to decide on the strategy to be pursued at the level of that group. In that context, the General Court stated in particular that the appellant, owing to the fact that it was not a shareholder of Sberbank Slovenia or Sberbank Croatia, had no grounds to claim that it held property and management rights in respect of those entities. By so doing, the General Court did not make any error in the definition of the right to property. In addition, since the General Court, in paragraphs 45 and 46 of the order under appeal, rejected the appellant’s arguments based on the fact that it purportedly had rights relating to the management of Sberbank Europe ‘as an integral part of the Sberbank Europe group’, the appellant cannot complain that the General Court failed to take account of its status as ‘ultimate parent’ with full control of the Sberbank group.
43 As regards the second limb of the second ground of appeal, it must be rejected. By arguing a failure to take into account the pervasive control which it exercised over Sberbank Europe, given, in particular, its active participation in the development of the resolution plan which the SRB had adopted in 2021, the appellant is seeking to challenge the General Court’s assessment of the facts. Accordingly, that limb is inadmissible.
44 As regards the third limb of the second ground of appeal, alleging a failure to take into account, or the erroneous taking into account of, the concept of ‘banking group’, it must be stated that the General Court did take that concept into account, but considered that it was irrelevant for the purpose of examining the test of direct concern, such that the appellant could at most rely on its status as the shareholder of Sberbank Europe. That limb must therefore be dismissed as unfounded.
45 As regards the fourth limb of the second ground of appeal, alleging failure to take account of the effects of an economic nature on the appellant’s position, even if important, the approach adopted by the General Court is entirely consistent with the case-law of the Court of Justice, as recalled in paragraph 32 above. In the absence of any error of law by the General Court, that limb must be rejected as unfounded.
46 In the light of all the foregoing considerations, it is apparent that all of the arguments made in support of the first and second grounds of appeal, seeking to call into question the General Court’s assessment that the decision of the SRB is not of direct concern to the appellant, must be rejected since they are either inadmissible or unfounded.
47 The appellant claims that the General Court erred in law since it misinterpreted its heads of claim. Accordingly, the General Court erred in dismissing as inadmissible the claim for annulment of the valuation report, with the appellant not having intended to challenge that report separately from the decision of the SRB.
48 The SRB contends that the third ground of appeal is ineffective and, in any event, unfounded.
49 It should be observed 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 and of the valuation report, but without specifying whether or not it wished to challenge the latter’s lawfulness separately.
50 In that regard, it must be stated that it is apparent from the wording of Article 20(15) of Regulation No 806/2014, which provides that ‘the valuation itself shall not be subject to a separate right of appeal but may be subject to an appeal together with the decision of the Board’, that that wording is clear. It confirms, as the appellant submits, that the valuation report, if disputed, cannot be challenged separately from the decision of the SRB.
51 However, it must be found that, in the present case, the fact that the valuation report may have been challenged in conjunction with the decision of the SRB could be of no consequence since the General Court in any event, without committing any error, dismissed the action as inadmissible in its entirety. Accordingly, the third ground of appeal must be rejected as ineffective.
52 Since the appellant has been unsuccessful in all its arguments, the appeal must be dismissed.
53 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.
54 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.
55 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 SRB, in accordance with the form of order sought by the latter. 1. Dismisses the appeal; 2. Orders Sberbank of Russia PAO to bear its own costs and to pay those incurred by the Single Resolution Board (SRB).