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The applicant pleads that its repurchases of treasury shares between 1 January 2014 and 31 December 2015 should not be considered in breach of Articles 77(a) and 78 of Regulation 575/2013, (2) since the capital conservation buffer was not in force nor determined until 1 January 2016.

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As long as the decision of the ECB relies on the rules governing the capital conservation buffer in Directive 2013/36, (3) which were not binding not in force nor determined until 1 January 2016, the applicant respectfully submits that the ECB has imposed an administrative pecuniary penalty in the absence of a directly applicable rule of EU and national law.

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The contested decision therefore breaches Article 18(1) of the SSM Regulation and, in particular, the principle of legality enshrined in Article 49(1) of the Charter of Fundamental Rights.

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By introducing a rule such as Article 18(6) of the SSM Regulation, the Council has deprived an applicant interested in bringing an action against the decision not to anonymise an administrative pecuniary penalty of the two-month time-limit provided in Article 263, sixth paragraph, TFEU.

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The contested provision derogates from the two month time-limit to bring an action of annulment, and grants the ECB a unilateral power to determine at which time a credit institution must bring an action.

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While the ECB has the power to publish the administrative pecuniary penalty, the credit institution concerned must bring an application prior to the ECB’s decision to publish the penalty. This situation creates an unreasonable uncertainty on the credit institution which can eventually limit its ability to bring an action and, ultimately, violates its fundamental right to an effective remedy.

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Consequently, Article 18(6) of the SSM Regulation is contrary to Article 263, sixth paragraph, TFEU and 47 of the Charter of Fundamental Rights.

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Inasmuch as the ECB deprived the applicant of its right to an effective remedy, the contested Decision should be annulled.