ABLV Bank AS v Single Resolution Board.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2021:28
• Date: 20 January 2021
• Docket Number: T-758/18
• Celex Number: 62018TJ0758
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)

20 January 2021 ( *1 )

(Economic and monetary Union – Banking union – Single resolution mechanism for credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Setting of the 2015 and 2018 ex ante contributions – Rejection of the request for a recalculation and a reimbursement of contributions – Action for annulment – Challengeable act – Admissibility – Institution whose licence has been withdrawn – Article 70(4) of Regulation (EU) No 806/2014 – Concept of ‘change of status’ – Article 12(2) of Delegated Regulation (EU) 2015/63)

In Case T‑758/18,

ABLV Bank AS, established in Riga (Latvia), represented by O. Behrends, lawyer,

applicant,

v

Single Resolution Board (SRB), represented by J. Kerlin and P. Messina, acting as Agents, and by B. Meyring, S. Schelo, T. Klupsch and S. Ianc, lawyers,

defendant,

supported by

European Commission, represented by D. Triantafyllou, A. Nijenhuis and A. Steiblytė, acting as Agents,

intervener,

APPLICATION under Article 263 TFEU seeking annulment of the letter from the SRB of 17 October 2018 by which the SRB rejected the applicant’s application for, first, the recalculation of its 2018 ex ante contribution and the repayment of the overpayment and, second, the repayment of a portion of its 2015 ex ante contribution, following the withdrawal of its licence by the European Central Bank (ECB),

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed of S. Papasavvas, President, A. Kornezov, E. Buttigieg, K. Kowalik-Bańczyk and G. Hesse (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 6 July 2020,

gives the following

Judgment

I. Background to the dispute

1 The applicant, ABLV Bank AS, was an authorised Latvian credit institution until 11 July 2018, when its licence was withdrawn by the European Central Bank (ECB) (see paragraph 11 below). Until that date, it was a ‘significant entity’ and as such was subject to supervision by the ECB under the Single Monitoring Mechanism (SSM).

2 Pursuant to Article 103 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council (OJ 2014 L 173, p. 190 (OJ 2014 L 173, p. 190), the Republic of Latvia is to ensure that contributions are levied annually on institutions which are authorised in its territory.

3 In December 2015, the applicant therefore received a collection notice from the Finanšu un kapitāla tirgus komisija (Financial and Capital Markets Commission, Latvia), informing it of the amount due as its 2015 ex ante contribution. The amount due was EUR 1338 112.40.

4 That contribution, paid by the applicant, was subsequently transferred to the Single Resolution Fund (SRF) in accordance with the Intergovernmental Agreement on the Transfer and Pooling of Contributions to the Single Resolution Fund, signed in Brussels on 21 May 2014 (‘the IGA’).

5 On 13 February 2018, the United States Department of the Treasury (US Treasury Department, United States of America), through the Financial Crimes Enforcement Network (FinCEN), announced a proposed measure to designate the applicant as an institution of primary money laundering concern, pursuant to Section 311 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act). Following that announcement, the applicant was no longer able to make payments in US dollars and experienced a wave of deposit withdrawals.

6 In addition, the ECB instructed the Financial and Capital Markets Commission to impose a moratorium in order to give the applicant time to stabilise its situation.

7 On 23 February 2018, the ECB found that the applicant was failing or 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 funds 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). On the same day, the Single Resolution Board (SRB) found, in its decision SRB/EES/2018/09, that a resolution action in respect of the applicant was not necessary in the public interest.

8 On 26 February 2018, the applicant’s shareholders brought proceedings which would enable the applicant to complete its own liquidation and submitted to the Financial and Capital Markets Commission a request for approval of its voluntary liquidation plan.

9 By Decision SRB/ES/SRF/2018/03 of 12 April 2018 on the calculation of the 2018 ex ante contributions, the SRB approved the 2018 ex ante contributions.

10 By letter of 27 April 2018, the Financial and Capital Markets Commission informed the applicant that the SRB had adopted its decision on the 2018 ex ante contributions and indicated the amount to be paid. The amount of the ex ante contribution due by the applicant for 2018 was EUR 1850 285.83. The applicant paid that amount on 3 July 2018.

11 On 11 July 2018, the ECB adopted a decision to withdraw the applicant’s licence, following a proposal from the Financial and Capital Markets Commission.

12 By letter of 17 September 2018, the applicant applied to the SRB for the repayment of a proportion of the contribution paid for the year 2015, the recalculation of the amount of its 2018 ex ante contribution and the repayment of the amounts overpaid as ex ante contributions.

13 By letter of 17 October 2018 (‘the contested decision’), the SRB replied to the applicant. In that letter, the SRB first summarised the applicant’s request concerning, first, its 2018 ex ante contribution and, secondly, its 2015 ex ante contribution. Then, as regards the 2018 ex ante contribution, citing the text of Article 70(4) of Regulation No 806/2014 and Article 12(2) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59 with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44), the SRB considered that none of the provisions of those two regulations provided for the recalculation or reimbursement requested by the applicant. The SRB stated that, contrary to what the applicant argued in its application, the withdrawal of a credit institution’s licence by the ECB was a change of status within the meaning of Article 12(2) of Delegated Regulation 2015/63. It therefore considered that the ECB’s decision of 11 July 2018 concerning the applicant had no effect on the annual contribution due by the latter for the year 2018, nor did it require it to recalculate or reimburse part of the contribution in question. Finally, as regards the 2015 ex ante contributions, the SRB clarified that the contributions received by the Member States had been transferred to the SRF in accordance with Article 3(3) of the IGA. The SRB considered that entities which had paid ex ante contributions for 2015 and whose licence had subsequently been withdrawn did not benefit from a right to reimbursement of those ex ante contributions, nor did they benefit from a right to reimbursement of any other ex ante contribution duly paid, in accordance with Article 70(4) of Regulation No 806/2014. The SRB concluded, in the light of those elements, that it was not in a position to recalculate the applicant’s 2018 ex ante contribution, nor to reimburse the remaining balance of the ex ante contribution paid for 2015 on the ground that its licence was withdrawn by the ECB.

II. Procedure and forms of order sought

14 By document lodged at the General Court Registry on 21 December 2018, the applicant brought the present action.

15 By decision of the President of the Eighth Chamber of the General Court of 30 April 2019, the European Commission was granted leave to intervene in support of the form of order sought by the SRB.

16 Following changes to the composition of the General Court, the President of the General Court, by decision of 21 October 2019, reassigned the case to a new Judge-Rapporteur, attached to the Tenth Chamber.

17 By a measure of organisation of procedure of 11 May 2020, the Court invited all of the parties to provide replies to a series of questions.

18 By letters of 4 and 12 June 2020, the Commission and the SRB respectively replied to the questions asked.

19 By letter of 12 June 2020, the applicant also replied to the question put to it by the Court. By letter of 29 June 2020, the applicant submitted its observations on the answers provided by the SRB and the Commission to the second question put by the Court in the context of the measure of organisation of procedure of 11 May 2020.

20 On a proposal from the Tenth Chamber of the General Court, the Court decided, pursuant to Article 28 of its Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

21 At the hearing on 6 July 2020, the parties presented oral argument and replied to the Court’s questions.

22 The applicant...