Orders nº T-281/18 of Tribunal General de la Unión Europea, May 06, 2019

• Resolution Date: May 06, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-281/18

(Action for annulment - Economic and monetary union - Banking union - Single resolution mechanism for credit institutions and certain investment firms (SRM) - Resolution procedure applicable where an entity is failing or is likely to fail - Parent company and subsidiary - Declaration by the ECB that an entity is failing or is likely to fail - Regulation (EU) No 806/2014 - Preparatory measures - Acts not open to judicial review - Inadmissibility)

In Case T-281/18,

ABLV Bank AS, established in Riga (Latvia), represented by O. Behrends, M. Kirchner and L. Feddern, lawyers,

applicant,

v

European Central Bank (ECB), represented by G. Marafioti and E. Koupepidou, acting as Agents, and by J. Rodríguez Cárcamo, lawyer,

defendant,

APPLICATION under Article 263 TFEU seeking annulment of the European Central Bank’s decisions of 23 February 2018 by which the latter declared that the applicant and its subsidiary, ABLV Bank Luxembourg SA, were failing or were likely to fail within the meaning of Article 18(1) 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),

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, R. Barents and J. Passer (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Background

1 The applicant, ABLV Bank AS, is a credit institution established in Latvia and the parent company of the ABLV group. ABLV Bank Luxembourg SA (‘ABLV Luxembourg’) is a credit institution established in Luxembourg and is one of the subsidiaries of the ABLV group; the applicant is the sole shareholder of ABLV Luxembourg.

2 The applicant is categorised as a ‘significant institution’ and, as such, is subject to supervision by the European Central Bank (ECB) as part of the Single Supervisory Mechanism (‘SSM’) established by Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

3 On 22 February 2018, the ECB sent to the Single Resolution Board (‘the SRB’) its draft assessment concerning whether the applicant and ABLV Luxembourg were failing or were likely to fail, with the aim of consulting the SRB in that regard in accordance with the second subparagraph of Article 18(1) 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).

4 On 23 February 2018, the ECB concluded that the applicant and ABLV Luxembourg were failing or were likely to fail within the meaning of Article 18(1) of Regulation No 806/2014. The assessments concerning the applicant and ABLV Luxembourg were sent to the SRB on the same day. Those assessments constitute the first and second contested acts respectively (together, ‘the contested acts’).

5 Direct and indirect shareholders of the applicant brought an action against the contested acts, which was registered as Case T-283/18.

6 On 23 February 2018, the SRB issued two decisions (SRB/EES/2018/09 and SRB/EES/2018/10) concerning the applicant and ABLV Luxembourg respectively, in which it agreed with the assessments as to whether those banks were failing or were likely to fail within the meaning of Article 18(1)(a) of Regulation No 806/2014, but decided that, in the light of the particular characteristics of the applicant and ABLV Luxembourg and their financial and economic situation, resolution action with respect to those banks was not necessary in the public interest.

7 On the same day, those decisions of the SRB were sent to their respective addressees, the national resolution authorities (‘the NRAs’) of Latvia and Luxembourg, the Finanšu un kapitāla tirgus komisija (Financial and Capital Markets Commission, Latvia) (‘the FCMC’) and the Commission de surveillance du secteur financier (Finance Sector Supervisory Commission, Luxembourg) (‘the CSSF’).

8 On 26 February 2018, the shareholders of the applicant resolved to initiate a procedure allowing that bank to wind itself up and submitted to the FCMC an application for approval of its voluntary liquidation plan.

9 On 11 July 2018, the ECB adopted a decision withdrawing the applicant’s authorisation following a request from the FCMC.

Procedure and forms of order sought

10 By application lodged at the Court Registry on 3 May 2018, the applicant brought the...