Austria / Supreme Administrative Court / AW 2010/17/0015 A bank v Federal Republic of Austria (Financial Market Authority)

Key facts of the case:

The Financial Market Authority stated in a decision of 8 January 2009 that Mr. T., the managing director of the applicant company (a local bank) did no longer fulfil the requirement of personal reliability. Therefore one of the preconditions for the banking licence was given no longer. The bank was ordered under penalty of fine to dismiss Mr. T. and to appoint another managing director. The bank complained to the Supreme Administrative Court and requested to grant the complaint suspensive effect. It argued that the threat of a fine was a disproportional burden for the bank. If it complied with the order substantive costs would incur as a new managing director would have to be employed. Furthermore the dismissal of the managing director would lead to a mayor loss of reputation of the bank, as these facts could not be held secret in the small town where it was located.

Paragraphs referring to EU Charter: 


By the way, a different conclusion is also not reached if considering the right to an effective remedy under Art. 47 para 1 of the Charta of Fundamental Rights – assuming that according to Art. 51 para 1 of the Charta this right is applicable due to the determination of the Banking Act (Bankwesengesetz) by secondary Union law – the principles regarding interim relief developed by the European Court are applied and an assessment regarding a fumus boni iuris is made as required by these principles. […] According to the European Court’s case-law, the decision on a request for interim measures has to be based also on the chances of success of the complaint insofar as the request must be suitable to reverse the assessment made by the authority that has issued the contested decision. The request does not contain any arguments able to reach such a conclusion.

Deciding body (original language):