Moonlit.ai™: Communication: judgment No. 0083 of 2020

27.6.2022

Official Journal of the European Union

C 244/4

Judgment of the Court (First Chamber) of 5 May 2022 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — BPC Lux 2 Sàrl and Others v Banco de Portugal, Banco Espírito Santo SA, Novo Banco SA

(Case C-83/20) (1)

(Reference for a preliminary ruling - Directive 2014/59/EU - Banking union - Recovery and resolution of credit institutions and investment firms - Articles 36, 73 and 74 - Protection of shareholders and creditors - Partial implementation before expiry of the period for transposition - Transposition in stages - Charter of Fundamental Rights of the European Union - Article 17(1) - Right to property)

(2022/C 244/05)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicants: BPC Lux 2 Sàrl, BPC UKI LP, Bennett Offshore Restructuring Fund Inc., Bennett Restructuring Fund LP, Queen Street Limited, BTG Pactual Global Emerging Markets and Macro Master Fund LP, BTG Pactual Absolute Return II Master Fund LP, CSS LLC, Beltway Strategic Opportunities Fund LP, EJF Debt Opportunities Master Fund LP, TP Lux HoldCo Sàrl, VR Global Partners LP, CenturyLink Inc. Defined Benefit Master Trust, City of New York Group Trust, Dignity Health, GoldenTree Asset Management Lux Sàrl, GoldenTree High Yield Value Fund Offshore 110 Two Ltd, San Bernardino County Employees Retirement Association, EJF DO Fund (Cayman) LP, Massa Insolvente da Espírito Santo Financial Group SA

Defendants: Banco de Portugal, Banco Espírito Santo SA, Novo Banco SA

Operative part of the judgment

Article 17(1) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation, applicable in the context of a resolution action, which, in principle, ensures the economic neutrality of that action and consists in the formation of a bridge institution and an asset separation tool, and which does not expressly provide:

—	for a fair, prudent and realistic valuation of the assets and liabilities of the institution under resolution to be carried out before the resolution action is adopted;

—	for potential compensation based on the valuation referred to in the previous indent to be paid to the institution under resolution or, where appropriate, to the holders of shares or other titles of ownership;

—

that shareholders of the institution under resolution are entitled to receive an amount not less than the amount it is calculated they would have received if the institution had been completely wound up under normal insolvency proceedings, such a safeguard mechanism being provided only for creditors whose claims have not been transferred; and

—	for a separate valuation from that referred to in the first indent to be carried out in order to determine whether shareholders and creditors would have received more favourable treatment if the institution under resolution had entered into normal insolvency proceedings.

The transposition by a Member State in part, in national legislation relating to the resolution of credit institutions, of certain provisions 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, before the expiry of the period prescribed for transposition of that directive is not, as a matter of principle, liable seriously to compromise the result prescribed by that directive, within the meaning of the judgment of 18 December 1997, Inter-Environment Wallonie (C-129/96, EU:C:1997:628).

(1) OJ C 247, 27.7.2020.