Action brought on 10 August 2020 — Banco Cooperativo Español v SRB

(Case T-499/20)

(2020/C 313/48)

Language of the case: Spanish

Parties

Applicant: Banco Cooperativo Español, SA (Madrid, Spain) (represented by: D. Sarmiento Ramírez-Escudero, J. Beltrán de Lubiano Sáez de Urabain and P. Biscari García, lawyers)

Defendant: Single Resolution Board

Form of order sought

The applicant claims that the General Court should:

(i)	declare Article 5(1) of Delegated Regulation 2015/63 to be inapplicable;

(ii)	annul the contested decision for infringement of the second subparagraph of Article 103(2) of Directive 2014/59 and Article 70 of Regulation 806/2014, interpreted in the light of Article 16 of the Charter of Fundamental Rights of the European Union and the principle of proportionality;

(iii)

in any event, declare that the contested decision cannot have retroactive effect from the date of adoption of the 2016 decision and, consequently, annul Article 3 of the contested decision in so far as it has retroactive effect;

(iv)

in any event, order the SRB to indemnify Banco Cooperativo Español, SA (BCE) in respect of:

the amount corresponding to the default interest in respect of the amount paid in 2016 for the period between 23 June 2016 and the date on which the SRB paid the amounts owed, calculated on the basis of the applicable European Central Bank refinancing rate (at present 0 %), increased by 3,5 percentage points;

in the alternative to (a) above, and only in the event that the Court considers that the contested decision is lawful but that it does not have retroactive effect, the amount corresponding to the default interest on the amount paid in 2016 for the period between 23 June 2016 to 19 March 2020, the date from which the contested decision took effect, with the interest calculated on the basis of the applicable European Central Bank refinancing rate (at present 0 %), increased by 3,5 percentage points;

in the alternative to (a) or (b) above, the amount corresponding to the profit that BCE would have obtained from acquiring, in the tender of 16 June 2016, 10-year Spanish sovereign bonds in the amount corresponding to the contribution ex ante for 2016, calculated from 23 June 2016 up to the date on which the SRB paid the amounts owed (or, in the event that the Court holds that the contested decision is lawful but does not have retroactive effect, to 19 March 2020).

(v)	in any event, order the SRB to pay the costs.

Pleas in law and main arguments

This action is brought against the decision of the Single Resolution Board (‘SRB’) of 19 March 2020 concerning the calculation of the ex ante contributions for 2016 to the Single Resolution Fund (SRB/ES/2020/16) (‘the contested decision’). The applicant states that the SRB claimed that the contested decision had retroactive effect from 15 April 2016, the date on which the first decision was adopted on the ex ante contributions for the financial year 2016.

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

The first plea in law is based on a plea of illegality, pursuant to Article 277 TFEU, and is seeking that the General Court declare Article 5(1) of 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) to be inapplicable.

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It is claimed in that regard that Article 5(1) of the Delegated Regulation:

a)	infringes Article 103(7) of Directive 2014/59, in that it establishes a calculation system that imposes on an institution with a conservative risk profile an ex ante contribution of an institution with a very high risk profile;

b)	infringes Article 16 of the Charter of Fundamental Rights of the European Union, in that it unjustifiably restricts the applicant’s fundamental right of freedom to conduct a business;

c)	infringes the principle of proportionality, in failing to take into consideration the double counting of some of the applicant’s liabilities, thereby generating an unnecessary and disproportionate restriction which is manifestly unjustifiable.

The second plea in law alleges infringement of the second subparagraph of Article 103(2) of Directive 2014/59 and Article 70 of Regulation 806/2014, interpreted in the light of Article 16 of the Charter of Fundamental Rights of the European Union and the principle of proportionality.

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It is claimed, in that regard, that the reasons justifying the non-application of Article 5(1) of Delegated Regulation 2015/63 clearly show that it is necessary to adjust the applicant’s risk profile to the operative singularity of the cooperative network it leads, as the abovementioned provisions require. Consequently, and to that extent, the contested decision, the content of which corresponds to a strict and literal application of a rule that takes no account of the applicant’s risk profile, must be regarded as being contrary to the second subparagraph of Article 103(2) of Directive 2014/59 and, in particular, Regulation No 806/2014, Article 70 of which, relating to ex ante contributions, refers to the provisions of Directive 2014/59 and to its implementing legislation.

Third plea in law, alleging a misapplication of the case-law of the Court of Justice which allows a decision to be given retroactive effect.

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It is claimed, in that regard, that the contested decision disregards the case-law in that:

a)	the objectives alleged by the SRB in order to justify the retroactive application of the contested decision are not public interest objectives capable of justifying a departure from the general principle that acts of the European Union should not be applied retroactively;

b)	in any event, retroactive application is neither essential nor necessary to achieve those objectives, given that there are less onerous alternatives for the parties to ensure that those objectives are achieved, and

c)	the legitimate expectations of the applicant were infringed, since the action taken by the SRB was contrary to the intended aims of the General Court in Case T-323/16.

Fourth plea in law, based on the SRB’s non-contractual liability pursuant to Articles 268 and 340 TFEU and Article 87(3) of Regulation 806/2014 on the ground of unjust enrichment.

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It is claimed, in that regard, that the SRB must compensate the BCE in respect of non-contractual liability for unjust enrichment in respect of the interest accrued from the time of payment of the 2016 ex ante contribution — a payment which was not in line with a decision of the SRB which was compatible with the annulment of the decision of 2016 in Case T-323/16– and the time of final payment or, in the alternative, the date of the contested decision.