Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Austria) — VTB Bank (Austria) AG v Finanzmarktaufsichtsbehörde

(Case C-52/17) (1)

((Reference for a preliminary ruling - Approximation of laws - Directive 2013/36/EU - Articles 64, 65 and 67 - Regulation (EU) No 575/2013 - Article 395(1) and (5) - Supervision of credit institutions - Supervisory powers and powers to impose penalties - Large exposure limits - Legislation of a Member State under which interest is levied where those limits are exceeded - Regulation (EU) No 468/2014 - Article 48 - Attribution of areas of competence between the European Central Bank (ECB) and national authorities - Formally initiated supervisory procedure))

(2018/C 352/06)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: VTB Bank (Austria) AG

Defendant: Finanzmarktaufsichtsbehörde

Operative part of the judgment

Articles 64 and 65(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, and Article 395(1) and (5) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 are to be interpreted as precluding national legislation which provides that, where the exposure limits set out in Article 395(1) of that regulation are exceeded, ‘absorption’ interest is to be levied automatically on a credit institution, even if that institution fulfils the conditions laid down in Article 395(5) of the regulation under which a credit institution may exceed those limits.

Article 48(3) of the 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) is to be interpreted as meaning that a supervisory procedure cannot be regarded as having been formally initiated, within the meaning of that provision, either where a credit institution reports to the national supervisory authority that the limits set in Article 395(1) of Regulation No 575/2013 have been exceeded, or where that authority has already adopted a decision in a parallel procedure concerning similar breaches.

(1) OJ C 144, 8.5.2017.