Appeal brought on 16 September 2022 by ABLV Bank AS, in liquidation, against the judgment of the General Court (Tenth Chamber, Extended Composition) delivered on 6 July 2022 in Case T-280/18, ABLV Bank v SRB

(Case C-602/22 P)

(2022/C 424/46)

Language of the case: English

Parties

Appellant: ABLV Bank AS, in liquidation (represented by: O. Behrends, Rechtsanwalt)

Other parties to the proceedings: Single Resolution Board (SRB), European Central Bank (ECB)

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment under appeal;

—	declare void the decisions of the SRB dated 23 February 2018 with respect to the appellant and its Luxembourg subsidiary;

—	order the SRB to pay the appellant's costs and the costs of this appeal, and

—	to the extent that the Court of Justice is not in a position to rule on the substance, refer the case back to the General Court.

Pleas in law and main arguments

In support of the appeal, the appellant relies on four grounds.

First ground of appeal: the General Court incorrectly interpreted and applied Article 18 SRMR (1) and committed a number of related errors and factual distortions. The appellant claims:

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that the General Court failed to respect the clear description of the limits of the SRB’s powers which is set out in Article 18 SRMR and which provides that the SRB may only act with external legal effect if all three conditions under Article 18 SRMR are met and if the European Commission and the Council of the European Union do not object;

—	that there is no basis in the text of Article 18 SRMR for the assumption that the SRB may adopt a measure with external legal effect if only the first two conditions are met;

—	that the SRB effectively conceded its mistake by taking a different approach in the most recent analogous cases;

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that the General Court failed to examine fully the legality of the contested decisions (SRB/EES/2018/09 and SRB/EES/2018/10 of 23 February 2018) by failing to determine how precisely, according to the General Court’s interpretation of the contested decisions, the legal position of the appellant and its subsidiary was changed;

—	that the General Court distorted the clear content of the contested decisions by failing to admit that they contain decisions that the appellant and its subsidiary be liquidated, and

—	that the General Court committed a number of related mistakes by, inter alia, confusing the contested decisions with the measures which the SRB addressed to the National Resolution Authorities for purposes of the implementation of the contested decisions.

Second ground of appeal: the General Court committed a number of legal and procedural errors as well as factual distortions in connection with the substantive findings. The appellant claims:

—	that the General Court distorted the content of the file by claiming an implicit FOLTF (failing or likely to fail) assessment and failed to mention that the SRB expressly stated in its defense that it did not make a FOLTF assessment; and

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that in the same context the General Court committed further related errors and distortions as well as failures to address the appellant’s arguments by, inter alia, failing to address the effect of the moratorium of suspending the payment obligations and by misinterpreting the concept of liquidity within the meaning of Article 18 SRMR.

Third ground of appeal: the General Court committed a number of legal errors, factual distortions and failures to address the appellant’s pleas in connection with the FinCEN (Financial Crimes Enforcement Network) notice and the subsequent revelations because of the findings of the Latvian Anti-Corruption Office.

Fourth ground of appeal: the General Court erred in finding that the action for annulment with respect to the contested decision in relation to the appellant’s subsidiary is inadmissible. The appellant claims that the General Court erroneously assumed that the contested decisions are not to be interpreted in accordance with the public announcements at the time of the contested decisions and that instead only a text is relevant that was transmitted by the SRB to the National Resolution Authorities for purposes of the implementation of the contested decisions and that in any case the General Court distorts the clear content of that text.

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(1)  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).