Algebris (UK) and Anchorage Capital Group v Commission (Intervention - Interest in the result of the case - Order) [2019] EUECJ T-570/17

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Anchorage Capital Group LLC, established in New York, New York (United States of America),

represented initially by T. Soames, J. Vandenbussche, lawyers, R. East, Solicitor, and N. Chesaites, Barrister, and subsequently by T. Soames, lawyer, R. East, Solicitor, and N. Chesaites, Barrister,

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

ACTION under Article 263 TFEU for annulment of Commission Decision (EU) 2017/1246 of 7 June 2017 endorsing the resolution scheme for Banco Popular Español S.A. (OJ 2017 L 178, p. 15),

1 By application lodged at the Court Registry on 17 August 2017, the applicants, Algebris (UK) Ltd and Anchorage Capital Group LLC, brought an action for annulment of Decision (EU) 2017/1246 of the European Commission of 7 June 2017 endorsing the resolution scheme for Banco Popular Español S.A. (OJ 2017 L 178, p. 15) (‘the contested decision’).

2 On 7 June 2017, the Single Resolution Board (SRB) adopted Decision SRB/EES/2017/08 concerning the adoption of a resolution scheme in respect of Banco Popular Español (‘the resolution decision’).

3 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.

4 On 7 June 2017, the European Commission adopted the contested decision 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.

5 By document lodged at the Court Registry on 20 November 2017, Banco Santander sought leave to intervene in the present case in support of the form of order sought by the Commission.

6 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.

7 By document lodged at the Court Registry on 1 October 2018, the applicants submitted observations on Banco Santander’s application for leave to intervene.

9 In its application for leave to intervene, Banco Santander submits that it has a direct, existing interest in the result of the case, on the ground that the Commission, in Article 1 of the contested decision, endorsed the resolution scheme. 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 the contested decision would call into question its legal position as purchaser of Banco Popular’s ‘New Shares II’.

10 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 measure the annulment of which is sought and therefore has an interest in the result of the case.

11 In their observations on Banco Santander’s application for leave to intervene, the applicants maintain that the interest claimed by Banco Santander in the result of the case is the same as that underlying Banco Popular’s application for leave to intervene and that, if Banco Popular were granted leave to intervene in the present proceedings, it would not be appropriate to also grant Banco Santander leave to intervene. They therefore take issue with the interventions of both Banco Popular and Banco Santander.

12 In that regard, it should be noted that, with effect from 28 September 2018, Banco Santander became the universal successor to Banco Popular. By letter lodged at the Court Registry on 30 October 2018, Banco Santander, successor in law to Banco Popular, informed the General Court, in accordance with Article 144(8) of the Court’s Rules of Procedure, that it intended to withdraw the application for leave to intervene initially submitted by Banco Popular.

13 By order of the President of the Eighth Chamber of the General Court of 7 February 2019, Banco Popular was removed from Case T‑570/17 as an applicant for leave to intervene.

14 It follows that the applicants’ objections relating to the concurrent interventions of Banco Popular and Banco Santander are devoid of purpose.

15 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, the application must be allowed, in accordance with 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.

1. Banco Santander, SA is granted leave to intervene in Case T‑570/17 in support of the form of order sought by the European Commission.

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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Algebris (UK) and Anchorage Capital Group v Commission (Intervention - Interest in the result of the case - Order) [2019] EUECJ T-570/17_CO (12 April 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T57017_CO.html Cite as: ECLI:EU:T:2019:261, [2019] EUECJ T-570/17_CO, EU:T:2019:261

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