Corte di giustizia UE n. 806/2020

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 14 May 2020 ( * ) (Action for annulment — Economic and [OSCURATO:PERSONA] — [OSCURATO:PERSONA] — [OSCURATO:PERSONA] resolution mechanism for credit institutions and certain investment firms (SRM) — [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] (EU) No 806/2014 — [OSCURATO:PERSONA] 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 — Decision of the SRB not to adopt a resolution scheme — Lack of public interest — Winding up in accordance with national law — Shareholders — Lack of individual concern — Inadmissibility) [OSCURATO:PERSONA] T‑282/18, [OSCURATO:PERSONA], residing in Jurmala ([OSCURATO:PERSONA]), Oļegs Fiļs, residing in Jurmala, OF [OSCURATO:PERSONA] SIA, established in Riga ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] SIA, established in Jurmala, represented by O. Behrends, lawyer, applicants, v [OSCURATO:PERSONA] (SRB), represented by J. [OSCURATO:PERSONA], M. [OSCURATO:PERSONA], A. Valavanidou, H. Ehlers and E. Muratori, acting as Agents, and by A. Rivas, lawyer, and B. Heenan, Solicitor, defendant, supported by [OSCURATO:PERSONA] (ECB), represented by G. Marafioti, E. Koupepidou and J. [OSCURATO:PERSONA], acting as Agents, intervener, APPLICATION under [OSCURATO:PERSONA] 263 TFEU seeking annulment of the decisions of the SRB of 23 February 2018, by which it decided not to adopt resolution schemes in respect of ABLV [OSCURATO:PERSONA] AS and its subsidiary, ABLV [OSCURATO:PERSONA] SA, under [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] (EU) No 806/2014 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] and a [OSCURATO:PERSONA] and amending [OSCURATO:PERSONA] (EU) No 1093/2010 (OJ 2014 L 225, p. 1), [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. [OSCURATO:PERSONA], [OSCURATO:PERSONA], K. Kowalik-Bańczyk and G. Hesse (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute 1 The applicants, [OSCURATO:PERSONA], Mr Oļegs Fiļs, OF [OSCURATO:PERSONA] SIA and [OSCURATO:PERSONA] SIA, are shareholders of ABLV [OSCURATO:PERSONA] AS, which is a credit institution established in [OSCURATO:PERSONA] and the parent company of the ABLV group. ABLV [OSCURATO:PERSONA] SA (‘ABLV [OSCURATO:PERSONA]’) is a credit institution established in [OSCURATO:PERSONA], which is one of the subsidiaries of the ABLV group, of which ABLV [OSCURATO:PERSONA] is the sole shareholder. 2 ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] were categorised as ‘significant institutions’ and, as such, were subject to supervision by the [OSCURATO:PERSONA] (ECB) as part of the [OSCURATO:PERSONA] (‘SSM’) established by [OSCURATO:PERSONA] (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the [OSCURATO:PERSONA] concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63). 3 On 13 February 2018, the US [OSCURATO:PERSONA], through the [OSCURATO:PERSONA], published its intention to take special measures that would prevent the ABLV Group from accessing the US dollar (USD) financial system. 4 On 18 February 2018, the ECB ordered [OSCURATO:PERSONA]’s national resolution authority (NRA), the Finanšu un kapitāla tirgus komisija ([OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA]; ‘the FCMC’), to suspend payments of ABLV [OSCURATO:PERSONA]’s financial obligations. The ECB has requested the [OSCURATO:PERSONA] de surveillance du secteur financier ([OSCURATO:PERSONA] ([OSCURATO:PERSONA]); ‘the FSSB’) to take similar action in respect of ABLV [OSCURATO:PERSONA]. 5 On 22 February 2018, the ECB sent to the [OSCURATO:PERSONA] (SRB) its draft assessment concerning whether ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] were failing or were likely to fail, with the aim of consulting the SRB in that regard in accordance with the second subparagraph of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] (EU) No 806/2014 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] and a [OSCURATO:PERSONA] and amending [OSCURATO:PERSONA] (EU) No 1093/2010 (OJ 2014 L 225, p. 1). 6 On 23 February 2018, the ECB concluded that ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] were failing or were likely to fail within the meaning of [OSCURATO:PERSONA] 18(1) of [OSCURATO:PERSONA] 806/2014. The assessments concerning ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] were sent to the SRB on the same day. 7 Furthermore, the applicants also brought a separate action against those acts of the ECB, registered as [OSCURATO:PERSONA] T‑283/18. That action was the subject of an order of 6 May 2019, [OSCURATO:PERSONA] and Others v ECB (T‑283/18, not published, under appeal, EU:T:2019:295). 8 By two decisions (SRB/EES/2018/09 and SRB/EES/2018/10) of 23 February 2018, the SRB decided not to adopt resolution schemes in respect of ABLV [OSCURATO:PERSONA], on the one hand, and ABLV [OSCURATO:PERSONA], on the other (‘the contested decisions’). The SRB found that, in view of the particular characteristics of ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA], a resolution measure in respect of them was not necessary in the public interest, within the meaning of point (c) of the first subparagraph of [OSCURATO:PERSONA] 18(1) and of [OSCURATO:PERSONA] 18(5) of [OSCURATO:PERSONA] 806/2014. On the same day, the contested decisions of the SRB were served on their respective addressees, the CFPC and the FSSB. 9 [OSCURATO:PERSONA] 1 of Decision SRB/EES/2018/09 is worded as follows: ‘ABLV [OSCURATO:PERSONA], A.S. shall not be placed under resolution.’ 10 In accordance with [OSCURATO:PERSONA] 2(1) of that decision: ‘This decision is addressed to the [FCMC], in its capacity as [NRA], within the meaning of [OSCURATO:PERSONA] 3(1)(3) ofRegulation (EU) No 806/2014.’ 11 [OSCURATO:PERSONA] 2(2) of Decision SRB/EES/2018/09 provides: ‘Pursuant to [OSCURATO:PERSONA] 29(1) of [OSCURATO:PERSONA] (EU) No 806/2014, the [FCMC] shall implement this decision and shall ensure that any action it takes complies with it, in line with the considerations provided herein.’ 12 [OSCURATO:PERSONA] 1 and [OSCURATO:PERSONA] 2 of Decision SRB/EES/2018/10 concerning ABLV [OSCURATO:PERSONA] are similar in content. 13 In addition, in parallel with the present action, ABLV [OSCURATO:PERSONA] also brought an action against the contested decisions, registered as [OSCURATO:PERSONA] T‑280/18. 14 On 24 February 2018, the SRB issued a press release concerning the contested decisions. The first paragraph of the press release reads as follows: ‘Following the decision by the [ECB] to declare [ABLV [OSCURATO:PERSONA]] and its subsidiary [ABLV [OSCURATO:PERSONA]] as ‘failing or likely to fail’, the [SRB] has decided that resolution action is not necessary as it is not in the public interest for these banks. As a consequence, the winding up of the banks will take place under the law of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], respectively.’ 15 On 26 February 2018, the shareholders of ABLV [OSCURATO:PERSONA] initiated a procedure allowing that bank to wind itself up and submitted to the FCMC an application for approval of its voluntary winding-up plan. 16 On 11 July 2018, the ECB adopted a decision withdrawing ABLV [OSCURATO:PERSONA]’s licence, following a proposal of the FCMC. 17 In the meantime, on 9 March 2018, the tribunal d’arrondissement de [OSCURATO:PERSONA] ([OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]) rejected the application of the FSSB for the dissolution and winding up of ABLV [OSCURATO:PERSONA], while allowing the latter to benefit from the suspension of payments procedure for a period of 6 months, which has been extended several times. By judgment of 2 July 2019, the same court ordered the dissolution and winding up of ABLV [OSCURATO:PERSONA]. Procedure and forms of order sought 18 By document lodged at the [OSCURATO:PERSONA] on 3 May 2018, the applicants brought the present action. 19 By document lodged at the [OSCURATO:PERSONA] on 31 July 2018, the [OSCURATO:PERSONA] raised a plea of inadmissibility. 20 On 19 September 2018, the applicants lodged their observations on the plea of inadmissibility. 21 By order of 8 February 2019, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), pursuant to [OSCURATO:PERSONA] 130(7) of the Rules of Procedure of the [OSCURATO:PERSONA], reserved its decision on the plea of inadmissibility raised by the SRB for the final judgment. 22 By document lodged at the [OSCURATO:PERSONA] on 6 September 2018, the ECB applied for leave to intervene in support of the form of order sought by the SRB. By order of 8 March 2019, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] granted that application for leave to intervene. 23 By decision of 17 October 2019, pursuant to [OSCURATO:PERSONA] 27(3) of the Rules of Procedure, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] reallocated the case to a new Judge-Rapporteur, assigned to the [OSCURATO:PERSONA]. 24 By a measure of organisation of the procedure adopted on 19 November 2019 under [OSCURATO:PERSONA] 89 of the Rules of Procedure, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] requested the parties to state their position in respect of the judgment of 5 November 2019, ECB and Others v [OSCURATO:PERSONA] and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), as regards the admissibility of the applicants’ action in the present case. 25 By documents of 20 December 2019, the applicants and the SRB responded to that question. 26 The applicants claim that the [OSCURATO:PERSONA] should: –        annul the contested decisions; –        order the SRB to pay the costs. 27 The SRB, supported by the ECB, contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicants to pay the costs. [OSCURATO:PERSONA] possibility of ruling by order 28 [OSCURATO:PERSONA] 130(1) of the Rules of Procedure, a defendant can request the [OSCURATO:PERSONA] to rule on admissibility without going into the substance of the case. In accordance with [OSCURATO:PERSONA] 130(6) of those Rules, the [OSCURATO:PERSONA] may decide to open the oral part of the procedure on the plea of inadmissibility. 29 By order of 8 February 2019, the [OSCURATO:PERSONA] decided to reserve its decision on the plea of inadmissibility raised by the SRB for the final judgment. In response to a measure of organisation of the procedure of 19 November 2019, the parties stated their positions in respect of the judgment of 5 November 2019, ECB and Others v [OSCURATO:PERSONA] and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), as regards the admissibility of the action in the present case. [OSCURATO:PERSONA] now considers itself sufficiently well informed to rule by way of order on that plea. 30 [OSCURATO:PERSONA] 130(6) of the Rules of Procedure, the procedure following the lodging of a plea of inadmissibility does not include an oral phase on admissibility unless the [OSCURATO:PERSONA] so decides. Moreover, in accordance with the case-law, the possibility of dismissing an action as inadmissible by reasoned order, without holding a hearing, is not precluded by the fact that the [OSCURATO:PERSONA] has previously adopted an order (see paragraph 21 above) reserving for the final judgment a plea raised on the basis of [OSCURATO:PERSONA] 130 of the Rules of Procedure (see, to that effect, order of 17 May 2019, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑764/15, not published, under appeal, EU:T:2019:349, paragraph 38 and the case-law cited). The plea of inadmissibility 31 The SRB raises five grounds of inadmissibility, alleging, first, that the applicants did not base their application on the text of the contested decisions; second, that there are no challengeable acts; third, that the applicants lack any interest in bringing proceedings; fourth, that the contested decisions are not of individual concern to the applicants and, fifth, that the contested decisions are not of direct concern to the applicants. 32 It is appropriate to consider first the ground alleging that the contested decisions are not of direct concern to the applicants. Direct concern 33 As set out in paragraphs 9 to 12 above, the contested decisions provide, first of all, that it is not necessary to adopt a resolution scheme in respect of ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA]. Next, those decisions specify that they are addressed only to the Latvian and [OSCURATO:PERSONA] NRAs respectively. Finally, the contested decisions require the NRAs, inter alia, to implement those decisions and to take measures in compliance with them. 34 [OSCURATO:PERSONA] the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures. 35 It follows from paragraph 33 above that, in the present case, the applicants are not the addressees of the contested decisions. Accordingly, in order for the applicants to be able to appeal against them, those decisions must, in particular, be of direct concern to the applicants. 36 In that regard, it is settled case-law of the [OSCURATO:PERSONA] of Justice that the condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (judgments of 22 March 2007, Regione Siciliana v [OSCURATO:PERSONA] , C‑15/06 P, EU:C:2007:183, paragraph 31; of 13 October 2011, [OSCURATO:PERSONA] and Germany v [OSCURATO:PERSONA] , C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66; and of 6 November 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v Ferracci , C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42). 37 The SRB argues that those criteria are not satisfied. On the one hand, the contested decisions did not directly affect the legal position of the applicants and, on the other, they gave full discretion to the NRAs responsible for implementing them. Indeed, winding up does not flow from the contested decisions without the application of other intermediate rules of national law. 38 According to the applicants, the direct effect stems from the fact that the contested decisions ordered the winding up of the two credit institutions, leaving the NRAs a purely symbolic discretion as to only the form and manner of the winding-up procedure. The applicants also rely, in that regard, on the press release relating to the contested decisions, according to which ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] will be wound up in accordance with national law (see paragraph 14 above). Contrary to the arguments of the SRB, the fact that the tribunal d’arrondissement de [OSCURATO:PERSONA] ([OSCURATO:PERSONA], [OSCURATO:PERSONA]), by its decision of 9 March 2018, rejected the FSSB’s request to liquidate ABLV [OSCURATO:PERSONA] does not confirm the national authorities’ discretion. On the contrary, that rejection shows that the decision of the SRB that that credit institution was to be wound up was incorrect in that the SRB did not have the power to order the winding-up of ABLV [OSCURATO:PERSONA]. Furthermore, in the applicants’ submission, the fact that the SRB considered that there was no reasonable prospect that other measures of a private nature could prevent the failure of ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] within a reasonable time, within the meaning of [OSCURATO:PERSONA] 18(1), first subparagraph, point (b), of [OSCURATO:PERSONA] 806/2014, would have altered the applicants’ legal position. 39 First of all, it must be noted that, as is clear from paragraph 33 above, the contested decisions provide that no resolution scheme will be adopted in respect of ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] respectively. Thus, the contested decisions have effects on the legal position of those two credit institutions. 40 However, the contested decisions do not directly affect the legal position of shareholders such as the applicants. The right of shareholders to receive dividends and to participate in the management of ABLV [OSCURATO:PERSONA] and of ABLV [OSCURATO:PERSONA], as companies constituted under Latvian and [OSCURATO:PERSONA] law respectively, has not been affected by the contested decisions (see, by analogy, judgment of 5 November 2019, ECB and Others v [OSCURATO:PERSONA] and Others , C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 110). 41 On the one hand, that conclusion is substantiated by the considerations of the [OSCURATO:PERSONA] of Justice in its judgment of 5 November 2019, ECB and Others v [OSCURATO:PERSONA] and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), which can be transposed by analogy to the present case. It follows, in particular, from paragraph 111 of that judgment that the negative effect on shareholders of the withdrawal of a credit institution’s licence is economic and not legal in nature. Indeed, although such a credit institution is no longer in a position to continue its activity following that withdrawal and, in fact, to distribute dividends, the right of shareholders to receive dividends and to participate in management remains unchanged. 42 On the other hand, the contested decisions provide only that ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA] are not subject to resolution. Unlike the situation in the case which gave rise to the judgment of 5 November 2019, ECB and Others v [OSCURATO:PERSONA] and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the contested decisions have neither the object nor the effect of withdrawing from those banks their licences authorising them to carry on the business of credit institutions. In those circumstances, it is all the more the case that the contested decisions do not affect the legal position of the applicant shareholders and are such as to have only economic effects on them. 43 In the second place, the contested decisions give the national authorities discretion as regards the adoption of measures likely to affect the rights of the shareholders of ABLV [OSCURATO:PERSONA] and ABLV [OSCURATO:PERSONA]. Although it is true that the winding up of those two credit institutions is such as to affect the applicants’ rights, those windings up do not, however, constitute an implementation of the contested decisions which is ‘purely automatic and resulting from the EU rules alone’, within the meaning of the case-law cited in paragraph 36 above. Thus, the relevant EU rules, in this case [OSCURATO:PERSONA] 806/2014, make no provision, in circumstances such as those of the present case, for the winding up of a credit institution in respect of which the SRB has decided not to adopt a resolution scheme on the ground that the conditions set out in the first subparagraph of [OSCURATO:PERSONA] 18(1) of that regulation are not satisfied (see, by analogy, judgment of 5 November 2019, ECB and Others v [OSCURATO:PERSONA] and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 114). [OSCURATO:PERSONA] 2 of the contested decisions merely provides that the CFPC and the FSSB respectively are to implement those decisions and ensure that the measures they take comply with them. 44 In the present case, it must be pointed out that ABLV [OSCURATO:PERSONA] was voluntarily wound up by decision of the general meeting of shareholders of that credit institution. As regards ABLV [OSCURATO:PERSONA], the tribunal d’arrondissement de [OSCURATO:PERSONA] ([OSCURATO:PERSONA], [OSCURATO:PERSONA]) initially rejected the [OSCURATO:PERSONA] NRA’s application for the dissolution and winding up of that institution on the ground, inter alia, that the coverage ratios were complied with and only subsequently ordered the dissolution and winding up of that institution. It follows that those windings up, in the first case a voluntary winding up and in the second a winding up ordered by a court, are carried out in accordance with Latvian and [OSCURATO:PERSONA] law respectively, that is to say, by means of ‘other intermediate rules’, within the meaning of the case-law referred to in paragraph 36 above. 45 The fact that the press release referred to in paragraph 14 above states that the winding up of those credit institutions will take place in accordance with Latvian and [OSCURATO:PERSONA] law respectively and that point 33 of Decision SRB/EES/2018/09 and point 23 of Decision SRB/EES/2018/10 state that the measures necessary to comply with those decisions include a winding-up procedure in accordance with Latvian and [OSCURATO:PERSONA] law respectively does not call into question that finding, in so far as it also follows that the contested decisions will be implemented by means of ‘other intermediate rules’ within the meaning of the case-law cited in paragraph 36 above, the tenor and scope of which vary according to the national law applicable, as is also illustrated by the facts of the case summarised in paragraph 44 above, so that the implementation of the contested decisions is not purely automatic and does not derive from EU rules alone. 46 Having regard to the foregoing, it must be held that the contested decisions do not directly concern the applicants, within the meaning of the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 47 It follows that the action should be dismissed as inadmissible, without it being necessary to examine the other grounds of inadmissibility. Costs 48 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the SRB and the ECB. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as inadmissible. 2. [OSCURATO:PERSONA] and Oļegs Fiļs, OF [OSCURATO:PERSONA] SIA and [OSCURATO:PERSONA] SIA shall bear their own costs and shall pay those incurred by the [OSCURATO:PERSONA] (SRB) and the [OSCURATO:PERSONA] (ECB). [OSCURATO:PERSONA], 14 May 2020. E. Coulon A. [OSCURATO:PERSONA] * Language of the case: English.