Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

12 April 2019 (*)

(Intervention — Interest in the result of the case)

In Case T‑510/17,

Antonio Del Valle Ruiz, residing in Mexico, and the other applicants whose names are set out in the annex, (1) represented by P. Saini QC, J. Pobjoy, Barrister, and R. Boynton, Solicitor,

applicants,

v

European Commission, represented by L. Flynn, É. Gippini Fournier, J. Rius, K.-Ph. Wojcik and A. Steiblytė, acting as Agents,

and

Single Resolution Board (SRB), represented initially by B. Meyring, S. Schelo, F. Málaga Diéguez, F. Fernández de Trocóniz Robles, T. Klupsch, M. Bettermann, L. Baudenbacher and S. Ianc, lawyers, and subsequently by B. Meyring, S. Schelo, F. Málaga Diéguez, F. Fernández de Trocóniz Robles, T. Klupsch, M. Bettermann, S. Ianc and M. Rickert, lawyers,

defendants,

ACTION under Article 263 TFEU for annulment of SRB Decision SRB/EES/2017/08 of 7 June 2017 concerning the adoption of a resolution scheme in respect of Banco Popular Español, S.A., and Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español (OJ 2017 L 178, p. 15).

makes the following

Order

 Facts and proceedings

1        By application lodged at the General Court Registry on 4 August 2017, the applicants, Mr Antonio Del Valle Ruiz and the other applicants whose names are set out in the annex to the order, brought an action for annulment of Decision SRB/EES/2017/08 of the Single Resolution Board (SRB) of 7 June 2017 concerning the adoption of a resolution scheme in respect of Banco Popular Español, S.A. (‘the resolution decision’), and Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español (OJ 2017 L 178, p. 15).

2        The resolution decision states that the resolution scheme applied to Banco Popular Español (‘Banco Popular’) is the sale of business tool provided for in Article 24 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). As part of that resolution scheme, the SRB decided to (i) write down in its entirety the nominal amount of Banco Popular’s share capital and, subsequently, convert all principal amount of Banco Popular’s Additional Tier 1 instruments into ‘New Shares I’ and to write down to zero the nominal amount of the ‘New Shares I’, (ii) convert all principal amount of Banco Popular’s Tier 2 instruments into ‘New Shares II’ and (iii) transfer the ‘New Shares II’ to Banco Santander, SA for a purchase price of EUR 1.

3        On 7 June 2017, the European Commission endorsed the resolution scheme and, on the same day, the Spanish resolution authority, the Fondo de Reestructuración Ordenada Bancaria (Fund for Orderly Bank Restructuring, ‘the FROB’ ), adopted the measures necessary to implement the resolution decision in accordance with Article 29 of Regulation No 806/2014. In that connection, the FROB approved the transfer of Banco Popular’s new shares resulting from the conversion of the Tier 2 instruments to Banco Santander.

4        By document lodged at the Court Registry on 6 November 2017, Banco Santander sought leave to intervene in the present case in support of the forms of order sought by the defendants, the Commission and the SRB.

5        The application for leave to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.

6        By document lodged at the Court Registry on 25 July 2018, the SRB stated that it had no objection to Banco Santander’s intervention.

7        By document lodged at the Court Registry on 24 September 2018, the applicants raised objections to Banco Santander’s application for leave to intervene. The applicants claimed that Banco Santander’s application for leave to intervene should be rejected on the ground that it had not established a direct, existing interest in the result of the case.

8        The Commission did not lodge any observations within the prescribed period.

 Law

9        Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.

10      According to the Court’s settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment or order (see order of the President of the Court of Justice of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 5 and the case-law cited).

11      In that regard, it is necessary to ascertain, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is established. In principle, an interest in the result of the case can be regarded as sufficiently direct only if the result would be such as to change the legal position of the applicant seeking leave to intervene (see order of the President of the Court of Justice of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 6 and the case-law cited).

12      In its application for leave to intervene, Banco Santander submits that it has a direct, existing interest in the result of the case. First, Banco Santander observes that, in Article 6.5 of the resolution decision, the SRB decided that Banco Popular’s ‘New Shares II’ would be transferred to Banco Santander and that the purchase price would be EUR 1. Secondly, regarding the Commission’s decision, Banco Santander submits that it endorsed the resolution decision. Pursuant to Article 18(7) of Regulation No 806/2014, the resolution decision entered into force only because the Commission did not object to the resolution scheme approved by the SRB, which included the sale of Banco Popular’s business to Banco Santander. Thus, Banco Santander contends that the annulment of both the resolution decision and the Commission’s decision would call into question its legal position as purchaser of Banco Popular’s ‘New Shares II’.

13      It must be noted that Banco Santander is directly referred to in the resolution decision, the effect of which was the sale of Banco Popular to Banco Santander, and the Commission’s decision endorsed the resolution decision. Thus, Banco Santander has established a direct interest in the ruling on the specific measures the annulment of which is sought and therefore has an interest in the result of the case. That finding cannot be called into question by the applicants’ arguments.

14      In their observations on Banco Santander’s application for leave to intervene, the applicants maintain that Banco Santander’s legal position will be affected only if the Court were to order that the applicants’ interests in Banco Popular be returned to them. If the Court were to annul the resolution decision and the Commission’s decision, but restrict the applicants’ compensation to damages, without unwinding the resolution and returning their securities, that ruling would have no effect on Banco Santander.

15      In that regard, it is sufficient to recall that an interest in the result of a case must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the forms of order sought. As they stand, by those arguments, the applicants are disputing Banco Santander’s interest not in relation to the forms of order in support of which it seeks to intervene, namely the dismissal of the action for annulment of the resolution decision and the Commission’s decision, but in relation to the future and hypothetical conclusions the SRB would be required to draw from any annulment.

16      As the application for leave to intervene was lodged in accordance with Article 143 of the Rules of Procedure and the applicant for leave to intervene has established its interest in the result of the case, Banco Santander’s application for leave to intervene in support of the forms of order sought by the SRB and the Commission must be allowed.

On those grounds,

THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      Banco Santander, SA is granted leave to intervene in Case T‑510/17 in support of the forms of order sought by the European Commission and the Single Resolution Board.

2.      The Registrar shall provide Banco Santander with all the procedural documents served on the main parties.

3.      A time limit shall be set for Banco Santander to submit a statement in intervention.

4.      The costs are reserved.

Luxembourg, 12 April 2019.

*      Language of the case: English.

1      The list of the names of the other applicants is annexed only to the version served on the parties.

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