7.5.3.3 Impediments to effective judicial protection

An interesting example in that respect, is the case of the resolution of BES.4 Subordinated creditors holding Lower Tier 2 Bonds started legal proceedings in order to annul the decision from the Commission and more specifically the commitment by Portugal that no claim of a shareholder or holder of subordinated debt or any hybrid instrument may be transferred to the bridge bank that was set up. The creditors argued that they have an interest in bringing proceedings before the GC, because they have brought an action before the national court of Portugal against the decision of the Portuguese resolution authority to put BES in resolution in the context of which the possible annulment of the contested decision before the EU Courts is capable of benefiting the creditors. The GC concluded that the applications did not have any legal interest in bringing proceedings for annulment of the Commission’s decision.5 The ECJ however set aside the judgment of the GC. It held that the GC erred in law in holding that, given that the proceedings before it and the national proceedings did not have the same subject matter, the possible annulment of the contested decision would have no effect on those latter proceedings and would therefore not benefit the appellants, within the meaning of the relevant case-law.6

The complexity of judicial protection is also illustrated by the fact that of the 76 appeals received by the Appeal Panel of the SRB in the aftermath of the resolution of Banco Popular, 54 were declared inadmissible since the decision of the SRB is not appealable at the Appeal Panel.7 This shows that it was not clear for most plaintiffs that they used the incorrect legal process, as a result of which they may have spent time and money without any result.