EU Cases or Jurisprudence

The Banking Union and Union Courts: overview of cases as at 1 September 2017 (public sources)

The selection of cases within the section “Banking Union and Union Courts” is a kind contribution of Prof. René Smits, Professor of the Law of Economic and Monetary Union at the University of Amsterdam, and Federico Della Negra.

Suggestions for inclusion and comments are welcome at [email protected]. Download complete list.

1. Actions for annulment against ECB supervisory decisions

1.Case T-122/15, Landeskreditbank Baden-Württemberg – Förderbank v ECB, [challenging qualification as a significant bank under the SSM; post-ABoR proceedings] Judgment of 16 May 2017; ECLI:EU:T:2017:337. Appeal: Case C-450/17 P
2.Case T-712/15, Crédit Mutuel Arkéa v ECB, pending
[challenging an ECB SREP decision of 5 October 2015 – issue: ECB competence (“conditions permitting consolidated supervision at the level of Crédit Mutuel as a whole have not been met”) and the governance structure of the group]
3.Case T-52/16, Crédit Mutuel Arkéa v ECB, pending
[challenging an ECB SREP decision of 4 December 2015 – issue: ECB competence and the governance structure of the group; pleas essentially identical or similar to those in case T- 712/15]
Hearing scheduled on 6 June 2017
4.Case T-22/16, Comprojecto-Projectos e Construções and Others v ECB
[complaint against lack of action against Banco de Portugal’s handling of supervision and alleged illegal conduct in respect of IC Millennium/BCP Bank in Portugal]
Order of 9 March 2017 rejecting the claim as inadmissible; ECLI:EU:T:2017:172.
5.Case T-133/16, Caisse régionale de crédit agricole mutuel Alpes Provence v ECB, pending [alleged misconstruction of Article 13 CRD IV (Effective direction of the business and place of the head office) and of Articles L511-13 (four eyes principle) and L 511-52 (sufficient time allocation requirement for directors of a credit institution) of the French Code monétaire et financier; infringement of Articles 13 and 88 (Governance arrangements) CRD IV, and of Article L 511-58 of the French Code monétaire et financier (on the cumulative functions of the Chair and the CEO) in an ECB decision of 29 January 2016]
6.Case T-134/16, Caisse régionale de crédit agricole mutuel Nord Midi-Pyrénées v ECB, pending
[issues as in Case T-133/16]
7.Case T-135/16, Caisse régionale de crédit agricole mutuel Charente-Maritime Deux-Sèvres v ECB, pending
[issues as in Case T-133/16]
8.Case T-136/16, Caisse régionale de crédit agricole mutuel Brie Picardie v ECB, pending [issues as in Case T-133/16]
9.Case T-247/16, Trasta Komercbanka and others v ECB, pending [for issues, see subsequent case]
10.Case T-698/16, Trasta Komercbanka and others v ECB, pending
[in each case, six pleas against withdrawal of license from a Latvian bank alleging, inter alia, that the ECB violated Article 24 SSM Regulation in connection with ABoR’s review of an earlier decision, relied on inaccurate documents submitted by the Latvian supervisory authority and violated the principles of proportionality (alternative measures allegedly available), equal treatment, legitimate expectations and legal certainty, committed détournement de pouvoir, violated procedural rules relating to the withdrawal of an authorisation (Article 83 SSM Framework Regulation), and violated its independence (recital 19 of the preamble and Article 19 SSM Regulation). See, also, winding-up measure announced pursuant to Directive 2001/24/EC in the Official Journal, C 123/2, 7 April 2016.]
11.Case T-758/16, Crédit Agricole v ECB, pending
[challenging ECB decision of 24 August 2016 dismissing the application for authorisation to exclude public-sector exposures from the calculation of the leverage ratio; alleged incorrect assessment of prudential risk associated with regulated savings: Livret A, deposits with the Caisse des Dépôts et Consignations (CDC); incorrect application of CRR, rendering Article 429(14) CRR ineffective]
12.Case T-768/16, BNP Paribas v ECB, pending [issues as in Case T-758/16]
13.Case T-757/16, Société générale v ECB, pending [issues as in Case T-758/16]
14.Case T-751/16, Confédération Nationale du Crédit Mutuel v ECB, pending [issues as in Case T-758/16]
Order of 16 May 2017 giving Finland leave to intervene in support of the ECB; initially, only non-confidential versions of the acts of the proceedings to be shared with Finland.
15.Case T-745/16, BPCE v ECB, pending [issues as in Case T-758/16]
16.Case T-733/16, Banque Postale v ECB, pending [issues as in Case T-758/16]
17.Case T-913/16, Fininvest and Berlusconi v ECB, pending [request for annulment of ECB Decision of 25 October 2016 under Articles 22 and 23 CRD IV and Italian banking law rejecting the acquisition by Finanziaria d’investimento Fininvest S.p.A. of a qualifying holding in Banca Mediolanum because of tax fraud conviction]
18.Case T-321/17, Niemelä e a. v ECB, (OJ 28.8.2017 283/53), pending
[applicants Heikki Niemelä and Mika Lehto, Nemea plc, Nevestor SA (and Nemea Bank plc request to:
(i) annul the ECB’s decision of 23 March withdrawing the authorisation of Nemea Bank plc as a credit institution;
(ii) suspend the application of the ECB’s decision in view the irreparable damage that the immediate and continued application of the decision is alleged to have on Nemea’s stakeholders, principally its depositors, employees and shareholders, allowing or otherwise requiring the shareholders of Nemea to divest their holding in the bank;
(iii) order the ECB to compensate the applicants: € 10 million with legal interest from 23 March 2017, for damage suffered as a result of the decision;
Applicants allege, inter alia, incorrect and insufficient reasoning, a manifest error of assessment, misuse of powers and failure to respect the proportionality principle.]

2. Actions for annulment against SRB decisions

1.Case T-420/17, Portigon v SRB, pending
[request to annul the SRB’s decision of 11 April 2017 concerning the calculation of the ex- ante contributions to the Single Resolution Fund (SRF) for 2017 (SRB/ES/SRF/2017/05) in particular because a mandatory contribution for institutions under resolution is not provided for under the SRM Regulation and Article 114 TFEU prohibits levying contributions on institutions, such as the applicant, which are resolving their remaining business operations; also the institution allegedly has no risk exposure and is not systemically relevant, and Article 41 of the Charter of fundamental rights of the European Union has been infringed (right to be heard; motivation]
2.Case T-411/17, Landesbank Baden-Württemberg v SRB, pending
[request to annul the SRB’s decision of 11 April 2017 concerning the calculation of the ex-ante contributions to the SRF for 2017 (SRB/ES/SRF/2017/05) by alleging breaches of the Charter, notably the duty to state reasons, the right to be heard, the right to effective legal protection and the principle of proportionality. Also, plea of illegality of Commission Delegated Regulation 2015/63 on contributions to the SRF]
3.Case T-414/17, Vorarlberger Landes- und Hypothekenbank v SRB, pending
[request to annul the decision of the SRB of 11 April 2017 on the calculation of the 2017 ex-ante contributions to the SRF (SRB/ES/SRF/2017/05), by alleging the breach of essential procedural requirements by reason of incomplete notification of the decision and the inadequate statement of reasons for the decision]

3. Preliminary ruling proceedings on EU Banking Law (CRR, CRDIV and SSM Regulation)

1.Case C-52/17, VTB Bank (Austria) AG v Österreichische Finanzmarktaufsicht), pending [reference from Bundesverwaltungsgericht (Federal Administrative Court) concerning the CRR and the initiation of a supervisory procedure: is a national provision levying interest on excess of large exposures beyond Article 395 CRR’s Large Exposures Limit compatible with EU law? // when is there a “formally initiated supervisory procedure?” (Article 48 SSM Framework Regulation: competence change ECB/NCA)]
2.Case C-219/17, Berlusconi and Fininvest, pending
[reference from the Consiglio di Stato (Italian Supreme Administrative Court) asking whether (i) challenges for judicial review of an NCA’s draft proposal to the ECB in a qualifying holding procedure (Article 22 CRD IV; 15 SSM Regulation) are within the competence of national or EU courts; (ii) whether the CJEU is competent when the applicant claims the nullity of these acts for the infringement of res iudicata.]
3.Case C-282/16, RMF Financial Holdings S.a.r.l. v Heta Asset Resolution AG, closed
[subsequently withdrawn reference from the Handelsgericht Wien (Commercial Court, Vienna) on Directive 2014/59/EU (BRRD) in relation to Directive 2001/24/EC (on the reorganisation and winding up of credit institutions) asking whether the (i) a wind-down entity that no longer holds a banking licence to transact banking business or is now permitted to transact banking business on the basis of a statutory licence solely for the purposes of portfolio liquidation also falls within the scope of Article 1(1) of the BRRD;
if the first question is answered in the negative: (ii) whether Article 3(2) of Directive 2001/24/EC implies that a write-down measure ordered by a national administrative authority is fully effective as against persons resident in other Member States, also having regard to Article 17(1) of the Charter of fundamental rights of the European Union (right to property) (iii) if the free movement of capital (Article 63(1) TFEU) precludes a national provision extending the scope of Directive 2014/59/EU to a wind-down entity; (iv) if a write-down measure ordered by a national administrative authority is to be recognised in another Member State (v) whether the term “secured liability” in Articles 2(1)(67) and 44(2)(b) of the BRRD is to be interpreted, in particular having regard its Article 1(2), as also encompassing liabilities for which a regional public authority (i.c. the Austrian Province of Carinthia) has assumed a statutory deficiency guarantee? (vi) are Articles 43(2)(b) and 59(3)(b) and (4) of the BRRD to be interpreted as precluding a national provision by virtue of which a measure corresponding to the bail-in tool of Article 43 BRRD is implemented in a case where there is no longer a realistic prospect that the institution’s viability may be restored and where no systemically important services are transferred to a bridge institution and no other parts of the institution’s business may be sold any longer, but the sole purpose of that institution is management of assets, rights and liabilities with a view to the orderly, active and optimum realisation of those individual assets, rights and liabilities (portfolio liquidation)? In such a case, in accordance with the BRRD, should the liquidation of that wind-down entity preferentially be carried out in the context of orderly insolvency proceedings?]
Order of 25 November 2016; ECLI:EU:C:2016:945 (withdrawal of the request for a preliminary ruling)

4. Judicial proceedings concerning Banking Union legislation and/or acts of EU institutions before national courts

1.Bundesverfassungsgericht German Constitutional Court 2 BvR 1685/14

[Constitutional complaint by the Europolis Gruppe against the SSM and the relevant national legislation (Gesetz zum Vorschlag für eine Verordnung des Rates zur Übertragung besonderer Aufgaben im Zusammenhang mit der Aufsicht über Kreditinstitute auf die Europäische Zentralbank vom 25. Juli 2013, BGBl. II 2013, S. 1050); Act of 25 July 2013 on the proposal of the Council conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions) and secondary law acts on banking union – an analysis of the issue in the context of the German constitution by the academic service of the Bundestag (German Lower House of Parliament) can be found here.]