Contents
Judgment of the General Court (Eighth Chamber, Extended Composition)28 November 2019note(Economic and monetary union — Banking union — Single resolution mechanism for credit institutions and certain investment firms (SRM) — Single Resolution Fund (SRF) — Decision of the SRB on 2016 ex-ante contributions — Action for annulment — Direct and individual concern — Admissibility — Essential procedural requirements — Authentication of the decision — Procedure for the adoption of the decision — Obligation to state reasons)In Case T‑365/16,Portigon AG, established in Düsseldorf (Germany), represented by D. Bliesener, V. Jungkind and F. Geber, lawyers,vSingle Resolution Board (SRB), represented by B. Meyring, T. Klupsch and S. Ianc, lawyers,supported byEuropean Commission, represented by A. Steiblytė and K.-P. Wojcik, acting as Agents,THE GENERAL COURT (Eighth Chamber, Extended Composition),composed of A.M. Collins, President, M. Kancheva, R. Barents, J. Passer (Rapporteur) and G. De Baere, Judges,Registrar: N. Schall, Administrator,having regard to the written part of the procedure and further to the hearing on 14 February 2019,gives the following
Judgment
Legal framework
1The present case has been brought in connection with the second pillar of the banking union, with regard to the Single Resolution Mechanism (SRM), established by 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). The purpose of establishing the SRM is to enhance the integration of the resolution framework in the euro area Member States and the non-euro area Member States who choose to participate in the single supervisory mechanism (SSM) (‘the participating Member States’).
2Specifically, this case concerns the Single Resolution Fund (SRF) established by Article 67(1) of Regulation No 806/2014. The SRF is financed by contributions from institutions raised at national level by way, inter alia, of ex-ante contributions, pursuant to Article 67(4) of that regulation. In accordance with Article 3(1)(13) of Regulation No 806/2014, ‘institution’ means a credit institution, or an investment firm covered by consolidated supervision in accordance with Article 2(c) of that regulation. The contributions are transferred at EU level in accordance with the intergovernmental agreement on the transfer and mutualisation of contributions to the SRF, signed in Brussels on 21 May 2014 (‘the IGA’).
3Article 70 of Regulation No 806/2014, entitled ‘Ex-ante contributions’, provides:1. The individual contribution of each institution shall be raised at least annually and shall be calculated pro-rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits, of all of the institutions authorised in the territories of all of the participating Member States.2.Each year, the Board shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12,5% of the target level.Each year the calculation of the contributions for individual institutions shall be based on:(a) a flat contribution, that is pro-rata based on the amount of an institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the participating Member States; and(b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of Directive 2014/59/EU, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.The relation between the flat contribution and the risk-adjusted contributions shall take into account a balanced distribution of contributions across different types of banks.In any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States, calculated under points (a) and (b), shall not exceed annually the 12,5% of the target level.…6. The delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of Directive 2014/59/EU, shall be applied.7.The Council, acting on a proposal from the Commission, shall, within the framework of the delegated acts referred to in paragraph 6, adopt implementing acts to determine the conditions of implementation of paragraphs 1, 2, and 3, and in particular in relation to:(a) the application of the methodology for the calculation of individual contributions;(b) the practical modalities for allocating to institutions the risk factors specified in the delegated act.’
4Regulation No 806/2014 was supplemented, with regard to those ex-ante contributions, by Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation No 806/2014 with regard to ex ante contributions to the SRF (OJ 2015 L 15, p. 1).
5Moreover, Regulation No 806/2014 and Implementing Regulation 2015/81 refer to certain provisions contained in two other acts:– first, 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 (OJ 2014 L 173, p. 190);– and second, Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).
6The Single Resolution Board (SRB) was established as a Union agency (Article 42 of Regulation No 806/2014). It comprises a plenary session and an executive session (Article 43(5) of Regulation No 806/2014). The SRB, in its executive session, is to take all of the decisions to implement Regulation No 806/2014, unless that regulation provides otherwise (Article 54(1)(b) of Regulation No 806/2014).
7By decision of 29 April 2015 (SRB/PS/2015/8), the SRB, in its plenary session, adopted the Rules of Procedure of the SRB in its Executive Session (‘the RPES’).
8Article 9(1) to (3) of the RPES provide:1. Decisions may also be taken by written procedure, unless at least two Members of the Executive Session referred to in Article 3(1) participating in the written procedure object within the first 48 hours of the launch of the written procedure. In such case, the item shall be put on the agenda of the subsequent Executive Session.2. A written procedure shall normally require not less than five working days for consideration by each Member of Executive Session. Where emergency action is required, the Chair may establish a shorter period for taking a decision by consensus. The reason for the shortening of the period shall be given.3. If consensus is not reachable via a written procedure, the Chair may initiate a regular voting procedure in line with Article 8.’
Background to the dispute
9The applicant, Portigon AG, formerly WestLB AG, is a credit institution established in a participating Member State.
10In 2009, within the German resolution authority, the Bundesanstalt für Finanzmarktstabilisierung (Federal Agency for Financial Market Stablisation, Germany; ‘the FMSA’), the Erste Abwicklungsanstalt (first resolution authority; ‘the EAA’) was established as an organisationally and economically autonomous public-law institution with partial legal capacity.
11On 20 December 2011, the European Commission adopted Decision 2013/245/EU on State aid C 40/2009 and C 43/2008 for the restructuring of WestLB AG (OJ 2013 L 148, p. 1).
12In the course of that restructuring, part of the applicant’s sectors of activity and portfolios (‘the EAA portfolio’) were transferred to the EAA. Part of the EAA portfolio was the subject of an actual transfer to the EAA by way of a spin-off. The remainder of the EAA portfolio, including a portfolio of over-the-counter derivatives, was not the subject of an actual transfer to the EAA, but was merely transferred economically (synthetic transfer). In that regard, agreements on sub-participation in cash, guarantees or the assumption of risks were concluded with the EAA.
Declaration by the applicant for the purpose of calculating its 2016 ex-ante contribution
13On 28 January 2016, using the ExtraNet application of the Deutsche Bundesbank (German Central Bank), the applicant sent to the FMSA its declaration for the purposes of the 2016 ex-ante contribution.
14By letter of the same day, the applicant explained to the FMSA that, in that declaration, the balance sheet total in fields 2A 1 (total liabilities) and 4A 17 (total assets) did not include the balance sheet value of the assets or liabilities held by the applicant in its capacity as a trustee, resulting from the portfolio of over-the-counter derivatives which had been transferred synthetically to the EAA. In field 4D 17 relating to Article 6(8)(a) of Delegated Regulation 2015/63, it had answered in the negative, on the ground that it did not belong to any group which had been reorganised after receiving government or comparable funds, such as a resolution financing mechanism.
15In the same letter, ‘for the sake of clarity, but also to avoid unnecessary estimates and over-estimates’, the applicant attached as an annex (in paper format) an alternative version of its declaration, which ‘should comply with the legal opinion of the FMSA’.
16By email of 3 March 2016, the FMSA informed the applicant that it had examined the issues raised in its letter of 28 January 2016 and that it had ‘consulted with the SRB’. According to the FMSA, all balance sheet items corresponding to the annual accounts had to be declared in fields 2A 1 and 4A 17. With regard to field 4D 17, the FMSA stated that the risk indicator referred to in Article 6(8)(a) of Delegated Regulation 2015/63 also applied to institutions not belonging to any group and, therefore, applied to the applicant.
17By letter of 9 March 2016, the applicant informed the FMSA that it maintained its declaration referred to in paragraph 13 above in full.
The first contested decision and the collection notice relating to that decision
18By decision of 15 April 2016 on the 2016 ex-ante contributions to the SRF (SRB/ES/SRF/2016/06) (‘the first contested decision’), the SRB, in its executive session, decided, pursuant to Article 54(1)(b) and Article 70(2) of Regulation No 806/2014, the amounts of the 2016 ex-ante contributions for each institution, including the applicant.
19The annex to that decision contains, in a table, the amounts of the 2016 ex-ante contributions for each institution, and a number of other sections, entitled, inter alia, ‘Method (EA)’ (Euro Area Method) and ‘Risk adjustment factor in the EA environment’.
20On the same day, the SRB provided the national resolution authorities (‘the NRAs’) with a copy of the data sheet concerning the institutions situated in the respective territories falling within their jurisdiction.
21By a collection notice of 22 April 2016, received on 29 April 2016, the FMSA, in its capacity as the German resolution authority, as provided for in Article 3(1)(3) of Regulation No 806/2014, informed the applicant that the SRB had adopted its 2016 ex-ante contribution to the SRF and indicated the amount to be paid (‘the first collection notice’).
The second contested decision and the collection notice relating to that decision
22By decision of 20 May 2016 on the adjustment of the 2016 ex-ante contributions to the SRF, supplementing the first contested decision (SRB/ES/SRF/2016/13) (‘the second contested decision’), the SRB increased the applicant’s contribution.
23The annex to that decision states, for each institution, the initial amounts of the 2016 ex-ante contributions, the amounts of the 2016 ex-ante contributions ‘after IPS impact’ (after the impact of the indicator concerning belonging to an institutional protection system) and the difference between those amounts as well as, inter alia, the Euro Area Method and the Risk adjustment factor in the Euro Area environment.
24On 22 May 2016, the SRB provided the NRAs with a copy of the data sheet concerning the institutions situated in the respective territories falling within their jurisdiction.
25By letter of the same date, the SRB informed the NRAs of the reasons for adopting that decision.
26By letter of 23 May 2016, the FMSA informed the Bundesverband Öffentlicher Banken Deutschlands e.V. (Federal Association of German Public Banks, Germany) of the need to rectify the initial calculation of 2016 ex-ante contributions and the reasons behind it. The Federal Association of German Public Banks forwarded that letter to the applicant.
27By a collection notice of 10 June 2016, received on 13 June 2016, the FMSA ordered the applicant to pay the amount of the increase referred to in paragraph 22 above (‘the second collection notice’).
Request from the applicant for access to documents
28By letter dated 22 June 2016 the applicant requested access to the following documents from the SRB:– the SRB’s decision on its obligation to pay a contribution;– the SRB’s decision on the calculation of the 2016 ex-ante contributions to be collected from it;– the decision amending the calculation of the abovementioned contributions.
29By letter dated 3 August 2016, the SRB made available to the applicant a copy of the first and second contested decisions (‘the contested decisions’), the annexes to which were produced only in so far as they concerned the applicant, a copy of the data sheet concerning the applicant and copies of the following decisions:– Decision of the Executive Session of the SRB of 14 September 2015 on the definition of the ‘additional risk indicators to be determined by the resolution authority’ pillar (SRB/ES/SRF/2015/00);– Decision of the Plenary Session of the SRB of 30 September 2015 on the 2016 contributions reporting form (SRB/PS/SRF/2015/01);– Decision of the Plenary Session of the SRB of 23 October 2015 amending the 2016 contributions reporting form (SRB/PS/SRF/2015/02);– Decision of the Executive Session of the SRB of 30 November 2015 on the common rules for the calculation of 2016 ex-ante contributions to the SRF as regards the discretisation in Step 2 (SRB/ES/SRF/2015/03);– Decision of the Executive Session of the SRB of 30 November 2015 on the additional assurance of data provided for the calculation of the 2016 ex-ante contributions to the SRF (SRB/ES/SRF/2015/04);– Decision of the Executive Session of the SRB of 30 November 2015 on the common rules for the calculation of 2016 ex-ante contributions to the SRF as regards the State aid reference date (SRB/ES/SRF/2015/05);– Decision of the Executive Session of the SRB of 24 February 2016 on the treatment of missing data after submission of the final data sets (SRB/ES/SRF/2016/00/A);– Decision of the Executive Session of the SRB of 10 March 2016 on the 2016 target level of the SRF (SRB/ES/SRF/2016/01);– Decision of the Executive Session of the SRB of 10 March 2016 on the deduction of 2015 ex-ante contributions from 2016 ex-ante contributions (SRB/ES/SRF/2016/03);– Decision of the Executive Session of the SRB of 6 April 2016 amending the 2016 contributions reporting form (SRB/ES/SRF/2016/04);– Decision of the Executive Session of the SRB of 6 April 2016 on the modification of the treatment of missing data after submission of the final data sets (SRB/ES/SRF/2016/05/A).
Procedure and forms of order sought
30By document lodged at the Registry of the General Court on 8 July 2016, the applicant brought the present action.
31By document lodged at the Registry of the Court on 9 November 2016, the Commission sought leave to intervene in support of the form of order sought by the SRB.
32By decision of 10 January 2017, the President of the Eighth Chamber of the General Court granted the Commission leave to intervene.
33By a first measure of organisation of procedure adopted on 9 October 2017 under Article 89 of the Rules of Procedure of the General Court, the Court requested the SRB to submit the full copy of the originals of the contested decisions, including their annexes.
34By document of 26 October 2017, the SRB stated that it was unable to comply with the measure of organisation of procedure adopted on 9 October 2017, mentioning inter alia the confidential nature of the data contained in the annexes to the contested decisions.
35By an order for measures of inquiry of 14 December 2017 (‘the first order’), the Court ordered the SRB, on the basis, first, of the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union, and, second, of Article 91(b), Article 92(3) and Article 103 of the Rules of Procedure, to produce non-confidential and confidential versions of the full copy of the originals of the contested decisions, including their respective annexes.
36By document of 15 January 2018, the SRB replied to the first order and produced, in non-confidential and confidential versions, four documents, two documents for the first contested decision and two documents for the second contested decision, corresponding for each, first, as regards the text of the contested decision, to a two-page document in the form of a scanned copy, in PDF format, of a signed paper document and, second, to a document comprising a digital version, in PDF format, of digital data forming the annex to the decision in question.
37In the light of the SRB’s reply to the first order, on 12 March 2018 the Court adopted a second measure of organisation of procedure and requested the SRB, first, to clarify the format of the annexes at the time when the contested decisions were adopted and, second, if those annexes had been presented in digital format, to explain why and to provide all the technical authentication features needed to prove that the PDF versions of the digital data produced before the Court correspond to what was actually presented for signature and adopted by the SRB in its executive session at its meetings of 15 April and 20 May 2016 and, third, to submit observations on the question of the existence in law of the contested decisions and the question of compliance with essential procedural requirements.
38By document of 27 March 2018, the SRB replied to the second measure of organisation of procedure. With regard to the second request mentioned in paragraph 37 above, the SRB stated that it was unable to comply with the request since some of the documents it had been asked to produce were confidential and it requested that a measure of inquiry be adopted.
39On 2 May 2018, the Court adopted a further order for measures of inquiry, ordering the SRB to comply with the second request contained in the measure of organisation of procedure of 12 March 2018 (‘the second order’).
40By document of 18 May 2018, which was corrected on 29 June 2018, the SRB complied with the second order and produced, in confidential and non-confidential versions, a document entitled ‘Technical information on identification’, the text of four emails from the SRB of 13 April 2016 at 17.41, 15 April 2016 at 19.04 and at 20.06 and 19 May 2016 at 21.25, together with a USB stick containing two files in XLSX format and two files in TXT format.
41By decision of 11 July 2018, following the examination provided for in Article 103(1) of the Rules of Procedure, the Court removed from the file the confidential versions of the documents produced by the SRB in response to the first and second orders, with the exception of the files in TXT format which were on the USB sticks produced on 18 May 2018 by the SRB and which contained no confidential information. Those files have been included in the file in paper format.
42On 11 July 2018, by a third measure of organisation of procedure adopted under Article 89 of the Rules of Procedure, the Court requested the applicant and the Commission to submit their observations on the SRB’s responses to the measures of organisation of procedure and measures of inquiry referred to in paragraphs 33, 35, 37 and 39 above.
43On 12 July 2018, the applicant raised a new plea in law.
44On 27 and 30 July 2018, the Commission and the applicant lodged their observations on the SRB’s responses to the measures of organisation of procedure and measures of inquiry referred to in paragraphs 33, 35, 37 and 39 above.
45By letter dated 17 August 2018, the SRB lodged its observations on the new plea in law raised by the applicant.
46On a proposal from the Eighth Chamber of the General Court, the Court decided, in accordance with Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.
47On 19 November 2018, by a fourth measure of organisation of procedure adopted under Article 89 of the Rules of Procedure, the Court requested the SRB to clarify how it had been involved in the discussion between the FMSA and the applicant concerning the applicant’s declaration for the purpose of calculating its 2016 ex-ante contribution and requested the parties to answer certain questions and to further clarify, at the hearing, their position as to the SRB’s compliance with the obligation to state the reasons for the contested decisions.
48On 3 and 4 December 2018, the parties complied with that request.
49By order of 20 December 2018, the Court ordered the SRB to produce non-confidential and confidential versions of copies of the emails exchanged between the SRB and the FMSA concerning the discussion between the FMSA and the applicant regarding the applicant’s declaration for the purpose of calculating its 2016 ex-ante contribution, referred to in the SRB’s reply to the Court’s letter of 19 November 2018.
50On 10 January 2019, the SRB complied with that order.
51By decision of 24 January 2019, following the examination provided for in Article 103(1) of the Rules of Procedure, the Court removed from the file the confidential versions of the copies of the emails produced by the SRB.
52The applicant claims, in essence, that the Court should:– annul the contested decisions;– order the SRB to pay the costs.
53The SRB contends that the Court should:– dismiss the action as inadmissible or, alternatively, as unfounded;– order the applicant to pay the costs.
54The Commission submits that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
Admissibility
55According to the SRB, the contested decisions do not produce legal effects vis-à-vis third parties or, in any event, vis-à-vis the applicant.
56The approval of the amounts of ex-ante contributions by the SRB in its executive session creates no obligation on the part of the institutions as this arises only if, and when, the competent NRA produces a legal act under national law. Thus, the SRB takes the view that the contested decisions do not constitute a final decision in the procedure, the procedure being finalised only when the NRAs receive the contributions from the institutions within their respective jurisdiction.
57Similarly, the calculation of ex-ante contributions by the SRB does not directly affect the legal situation of the institutions since they are only directly affected when the NRAs collect the contributions.
58Therefore, in the view of the SRB, it is for the applicant to challenge the FMSA’s collection notices before the national courts which might submit to the Court questions for a preliminary ruling regarding the validity or interpretation of the SRB’s decisions.
59According to the SRB, even if the system of ex-ante contributions were compared with the system of State aid, the recent case-law on that subject would support the SRB’s argument that the present action is inadmissible. The Court has held that, where a decision concerning State aid is addressed solely to a Member State (that is to say the decision is not binding on other persons) and does not define the consequences of that decision vis-à-vis third parties (those consequences will be set down in administrative documents), an application for its annulment is inadmissible.
60The applicant disputes those arguments.
61According to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to that person, and against a regulatory act which is of direct concern to that person and does not entail implementing measures.
62Thus, the fourth paragraph of Article 263 TFEU restricts actions for annulment brought by a natural or legal person to three categories of acts, namely, first, acts addressed to that person, second, acts not addressed to that person which are of direct and individual concern to that person and, third, regulatory acts not addressed to that person which are of direct concern to that person and which do not entail implementing measures (see order of 10 December 2013, von Storch and Others v ECB, T‑492/12, not published, EU:T:2013:702, paragraph 29 and the case-law cited).
63As regards the condition laid down in the first paragraph of Article 263 TFEU, it is settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see order of 21 April 2016, Borde and Carbonium v Commission, C‑279/15 P, not published, EU:C:2016:297, paragraph 37 and the case-law cited).
64Moreover, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, a measure will be open to review only if it is a measure definitively laying down the position of the institution upon conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (see order of 9 March 2016, Port autonome du Centre et de l’Ouest and Others v Commission, T‑438/15, EU:T:2016:142, paragraph 20 and the case-law cited).
65In addition, it is clear from the case-law that, where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of that party by bringing about a distinct change in its legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (see order of 6 March 2014, Northern Ireland Department of Agriculture and Rural Development v Commission, C‑248/12 P, not published, EU:C:2014:137, paragraph 33 and the case-law cited).
66In that regard, it is settled case-law, first, that natural or legal persons other than those to whom a decision is addressed may claim to be individually concerned by that decision only if it affects them by reason of certain attributes which are peculiar to them or, by reason of factual circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 2 April 1998, Greenpeace Council and Others v Commission, C‑321/95 P, EU:C:1998:153, paragraphs 7 and 28).
67Second, it is settled case-law that the condition that the decision forming the subject matter of the proceedings must be of direct concern to a natural or legal person requires the contested measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see judgment of 22 March 2007, Regione Siciliana v Commission, C‑15/06 P, EU:C:2007:183, paragraph 31 and the case-law cited).
68It is clear from the case-law that, even where the disputed act necessarily requires the adoption of implementing measures if it is to affect the legal situation of individuals, the condition of direct concern is nevertheless considered to be satisfied if the act imposes obligations on the addressee thereof for its implementation and if the addressee is automatically required to take measures that alter the applicant’s legal situation (see, to that effect, judgment of 7 July 2015, Federcoopesca and Others v Commission, T‑312/14, EU:T:2015:472, paragraph 38 and the case-law cited).
69As Advocate General Wathelet recalled in his Opinion in Stichting Woonpunt and Others v Commission (C‑132/12 P, EU:C:2013:335, point 68 and the case-law cited), the absence of discretion on the part of the Member States overturns the apparent absence of a direct link between an act of the Union and the individual. In other words, in order to preclude direct concern, the discretion of the author of the intermediate act seeking to implement the act of the European Union cannot be purely formal. It must be the source of the legal effect on the applicant.
70In the present case, in the first place, it is apparent from the applicable rules, in particular Article 54(1)(b) and Article 70(2) of Regulation No 806/2014, that the body which actually calculated the individual contributions and made the decision approving those contributions was the SRB. The fact that there may be cooperation between the SRB and the NRAs does not alter that finding (order of 19 November 2018, Iccrea Banca v Commission and SRB, T‑494/17, EU:T:2018:804, paragraph 27).
71The SRB alone is competent to calculate, ‘after consulting the ECB or the national competent authority and in close cooperation with the [NRAs]’, the ex-ante contributions of the institutions (Article 70(2) of Regulation No 806/2014). Moreover, the NRAs have an obligation under EU law to raise those contributions as determined by the decision of the SRB (Article 67(4) of Regulation No 806/2014).
72The SRB decisions determining the ex-ante contributions, pursuant to Article 70(2) of Regulation No 806/2014, are therefore definitive in nature.
73Consequently, the contested decisions cannot be classified as purely preparatory measures or as intermediate measures since they definitively lay down the position of the institution, the SRB, upon conclusion of the procedure, in respect of contributions.
74In the second place, whatever terminological variations there may be between the linguistic versions of Article 5 of Implementing Regulation 2015/81, the bodies to which the SRB, which makes the decision determining the ex-ante contributions, addresses that decision are the NRAs, not the institutions. The NRAs are, in practice and in implementation of the applicable rules, the only bodies to which the issuer of the decision in question is required to send it and, therefore, ultimately, the persons to which that decision is addressed within the meaning of the fourth paragraph of Article 263 TFEU (order of 19 November 2018, Iccrea Banca v Commission and SRB, T‑494/17, EU:T:2018:804, paragraph 28).
75The finding that the NRAs are the addressees of the SRB decision within the meaning of the fourth paragraph of Article 263 TFEU is moreover corroborated by the fact that, in the system established by Regulation No 806/2014 and under Article 67(4) of that regulation, they are responsible for raising the individual contributions decided on by the SRB from the institutions (order of 19 November 2018, Iccrea Banca v Commission and SRB, T‑494/17, EU:T:2018:804, paragraph 29).
76While the institutions are therefore not addressees of the contested decisions, they are, nonetheless, individually and directly concerned by those decisions to the extent to which those decisions affect them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated them from all other persons and, by virtue of these factors distinguishes them individually just as in the case of the person addressed and they affect directly their legal situation and leave no discretion to the addressees of that measure, which are entrusted with the task of implementing it.
77In that regard, first, the contested decisions mention each of the institutions by name and determine or, in the case of the second contested decision, adjust their individual contributions. It follows that the institutions, of which the applicant is one, are individually concerned by the contested decisions.
78Second, as regards direct concern, it should be noted that the NRAs, which are entrusted with the task of implementing the contested decisions, have no discretion concerning the amounts of the individual contributions determined in those decisions. The NRAs may not, in particular, amend those amounts and are required to collect them from the institutions concerned.
79Moreover, with regard to the reference by the SRB to the IGA in order to dispute the assertion that the applicant is directly concerned, it should be pointed out that that agreement does not concern the collection by the NRAs of the 2016 ex-ante contributions from the institutions, but only the transfer of those contributions to the SRF.
80As is apparent from the provisions of Regulation No 806/2014 (see recital 20 and Article 67(4) of that regulation) and the IGA (see recital 7, Article 1(a) and Article 3 of the IGA), the collection of contributions is carried out pursuant to EU law (namely Directive 2014/59 and Regulation No 806/2014), whereas the transfer of those contributions to the SRF is carried out pursuant to the IGA.
81Thus, even though the legal obligation devolving on the institutions to pay, into the accounts indicated by the NRAs, the sums due by way of their ex-ante contributions requires the adoption of national acts by the NRAs, the fact remains that those institutions are nonetheless still directly concerned by the SRB’s decisions which determined the amount of their individual contributions.
82It follows from the foregoing considerations that the applicant is individually and directly concerned by the contested decisions.
83In the light of the foregoing considerations, the plea raised by the SRB requesting the Court to dismiss the action as inadmissible must be rejected.
Substance
84The applicant puts forward eight pleas in law in support of its action. As its principal argument, the applicant maintains, in essence, that the SRB ought to have made an exclusion for it from the obligation to pay an ex-ante contribution (first and second pleas). In the alternative, it argues that, in any event, the SRB ought to have, (a) excluded the portfolio of over-the-counter derivatives referred to in paragraph 12 above from the liabilities used for the collection of the contribution (third plea); (b) taken into consideration a net value and not a gross value of its over-the-counter derivatives contracts (fourth plea); and, (c) regarded it as not being an institution undergoing reconstruction (fifth plea). In addition, it alleges that the SRB infringed the right to be heard (sixth plea), the obligation to state reasons (seventh plea) and of procedural rules (new plea).
85In the present case, the Court considers it is appropriate first to examine the question of the authentication of the contested decisions, which is intended to guarantee legal certainty by ensuring that the text adopted by the body which adopted the act becomes definitive and constitutes an essential procedural requirement (see, to that effect, judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraphs 75 and 76, and of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraphs 40 and 41), the infringement of which constitutes a ground of public policy which must be raised by the EU courts of their own motion (see, to that effect, judgment of 13 December 2013, Hungary v Commission, T‑240/10, EU:T:2013:645, paragraph 70 and the case-law cited).
The authentication of the contested decisions
86It should be recalled that the Court has held that, since the intellectual component and the formal component form an inseparable whole, reducing the act to writing is the necessary expression of the intention of the adopting authority (judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraph 70, and of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 38).
87The Court has also held that it is the mere failure to authenticate the act which constitutes the infringement of an essential procedural requirement and it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 42).
88Checking compliance with the requirement of authentication and, thus, the definitive nature of the act is a preliminary to any other review, such as that of the competence of the author of the act, of compliance with the principle of collegiality or of the duty to provide reasons for the act (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 46).
89If the EU court finds, on examining the act produced before it, that the act has not been properly authenticated, it must of its own motion raise the issue of infringement of an essential procedural requirement through failure to carry out proper authentication and, in consequence, annul the act vitiated by that defect (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 51).
90It is of little importance in this regard that the lack of authentication has not caused any harm to a party to the dispute. Authentication of acts is an essential procedural requirement within the meaning of Article 263 TFEU that is crucial for legal certainty; infringement of that requirement results in annulment of the defective act without there being any need to establish the existence of such harm (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 52; see also, to that effect, judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 47).
91In the present case, in response to the first order, requiring it produce the full copy of the originals of the contested decisions including their single annexes, the SRB produced, on 15 January 2018, for each decision, in the case of the text, a two-page document in the form of a scanned copy, in PDF format, of a signed paper document, which suggested that those pages were indeed copies of the original, that is to say copies of the document which was formally presented for signature and adopted by the SRB in its executive session. In the case of the annexes to the contested decisions, the SRB did not produce any copies of the original, but merely, for each decision, a document in the form of a computer generation, in PDF format, of digital data, which did not contain any information allowing its authenticity to be guaranteed.
92By a second measure of organisation of procedure, and subsequently by the second order, the Court requested the SRB to clarify the format of the annexes at the time of the adoption of the contested decisions and, in the event that those annexes had been presented in digital format, to explain that fact and to provide all of the technical authenticating evidence necessary to prove that the documents, generated in PDF format, produced before the Court, corresponded to what had actually been presented for signature and adopted by the SRB in its executive session at its meetings on 15 April and 20 May 2016. The Court also asked the SRB to submit its observations on the question of the existence in law of the contested decisions and the question of compliance with essential procedural requirements.
93In its responses of 27 March and 18 May 2018 to the second measure of organisation of procedure and the second order, the SRB argued, for the first time, that the contested decisions had been adopted not at a meeting of the members of the executive session of the SRB, but by means of the written procedure, in electronic format, in accordance with Article 7(5) of the RPES – according to which the communications and documents relevant for the executive session must, in principle, be effected electronically, respecting the confidentiality rules in accordance with Article 15 of the RPES – and Article 9 of the RPES.
94In particular, with regard to the procedure for the adoption of the first contested decision, it is apparent from the case file that, by email of 13 April 2016 sent at 17.41 by the SRB to the members of the executive session and containing three attachments, including a document in PDF format entitled ‘Memorandum2_Final results.pdf’, the executive session of the SRB was asked formally to approve the 2016 ex-ante contributions by 12.00 on 15 April 2016.
95By email of 15 April 2016 sent at 19.04, the SRB indicated that an error had been made in the calculation of the contributions, announced that an amended version of the document entitled ‘Memorandum 2’ would be sent and stated that, unless any of the addressees objected, the approval already given would be treated as also covering the corrected amounts.
96By email of 15 April 2016 sent at 20.06, the document mentioned was sent in XLSX format, under the designation ‘Final results15042016.xlsx’.
97As regards the procedure for adopting the second contested decision, the SRB has stated that, on 19 May 2016 at 21.25, it had sent an email to the members of the executive session to initiate a written procedure, requesting approval of the adjustment of the results of the calculation of the 2016 ex-ante contributions and containing, as an annex, a file in XLSX format entitled ‘Delta’ depicting the results of the adjusted calculations. Approval was requested – ‘on account of the urgency of the case’ – at the meeting on 20 May 2016 at 17.00.
98Finally, the SRB stated, at the hearing, that the instruments embodying the contested decisions had been electronically signed by the Chair of the SRB.
99It must however be held that, far from providing or even offering to provide proof of such assertion, consisting, in principle, of the production of digital instruments and electronic signature certificates guaranteeing their authenticity, the SRB has produced evidence which, in reality, contradicts that assertion.
100With regard to the text of the contested decisions, the SRB has produced PDF documents, the last page of which contain the likeness of a handwritten signature which appears to have been appended by ‘copying and pasting’ an image file, and which do not contain electronic signature certificates.
101As for the annexes to the contested decisions, which contain the amounts of contributions and of adjustments thereto and which, as a result, constitute an essential element of the decisions, these also do not contain any electronic signatures, even though they are in no way inextricably linked to the text of the contested decisions.
102In order to establish the authenticity of the annexes to the contested decisions, the SRB has produced, in response to the second order, documents in TXT format seeking to demonstrate that the hash values of those annexes are identical to the hash values of the documents in XLSX format attached to the email of 15 April 2016, sent at 20.06, and the email of 19 May 2016, sent at 21.25.
103However, it must be observed that, in order to prove that the annexes to the contested decisions had been the subject of an electronic signature, as is maintained by the SRB (see paragraph 98 above), the SRB ought to have produced electronic signature certificates linked to these annexes and not TXT documents containing a hash value. The production of such TXT documents suggests that the SRB was not in possession of electronic signature certificates and that the annexes to the contested decisions were therefore not, contrary to its assertions, the subject of an electronic signature.
104In addition, the documents in TXT format produced by the SRB are in no way objectively and inextricably linked to the annexes in question.
105Finally, it should be noted, for the sake of completeness, that the authentication required is not, in any event, that of the drafts submitted for approval by the email of 15 April 2016 sent at 20.06, and by email of 19 May 2016 sent at 21.25, but that of the instruments which are supposed to have come into existence after that approval. It is only following the approval that the instrument comes into existence and is authenticated by the appending of a signature.
106It follows from the foregoing considerations that the requirement for authentication of the contested decisions is not satisfied.
107In addition to those findings concerning the failure to authenticate the contested decisions, which in itself requires, according to the case-law referred to in paragraphs 87 to 90 above, the contested decisions be annulled, the Court considers it appropriate to examine also, in the interest of the proper administration of justice, the new plea in law – which is based on matters of fact which came to light in the course of the procedure and which has been introduced by the applicant in accordance with Article 84(2) of the Rules of Procedure – and the seventh plea.
The new plea, alleging infringement of the procedural rules relating to the adoption of the contested decisions
108According to the applicant, the SRB’s adoption of the contested decisions infringes the general procedural requirements arising from Article 41 of the Charter of Fundamental Rights of the European Union, Article 298 TFEU and general principles of law, as well as the RPES.
109First of all, the applicant submits that, in so far as it is defending a legal perspective which differs from that of the SRB concerning its obligation to pay a contribution and the amount of its contribution (see paragraphs 13 to 17 above), the SRB ought to have made known its views to the members of the executive session. By contrast, the SRB communicated to the executive session solely the results of the contribution calculations.
110Second, the applicant states that the contested decisions were adopted within a period which was shorter than the minimum period laid down in respect of the written procedure. The duration of the first procedure for adoption of the first contested decision was less than 48 hours and the members of the executive session had only a few hours available in the second procedure for the adoption of that decision. In both cases, the SRB has not justified the need for such short time limits. The second contested decision was also preceded by a written procedure which was too short, that is to say approximately 19 hours in duration. The Secretariat gave reasons for the short deadline by making a generic reference to urgency, which it did not, however, explain. According to the applicant, the SRB has therefore infringed Article 9(1) and (2) of the RPES.
111Finally, in the applicant’s view, the second procedure for the adoption of the first contested decision also infringes Article 9(3) of the RPES. That provision requires unanimity for adoption to occur; abstentions are not taken into consideration. In any event, the duration of the second procedure for the adoption of the first contested decision is, in the applicant’s view, far too short. Given the lateness of the transmission and the extremely short response period, the Secretariat of the SRB could not be certain that all members of the executive session were aware of the decision or of the need to express actively any disagreement.
112The SRB disputes those arguments.
113In the first place, the SRB submits that the right to good administration does not mean that the members of the decision-making body of an institution, body or agency must personally examine all matters of fact and of law which are in any way connected with a decision. That approach is not feasible in practice since the contested decisions concern a calculation of the ex-ante contributions of almost 3800 institutions. Moreover, the right to good administration also includes an obligation on the part of the administration to make decisions efficiently.
114In the present case, the contested decisions were prepared in a detailed fashion by the responsible unit within the SRB, the members of the executive session of the SRB were all informed of the method and of the calculation procedure and monitored the progress of the procedure, which commenced in September 2015, including the contribution calculations in all the preparatory stages. Accordingly, at the stage of the formal decision on the contribution, there were, in practice, no outstanding questions on which the SRB members had to deliberate or make a decision, and that was even less the case with regard to the calculation method itself.
115Furthermore, the SRB considers that the applicant has not fully complied with its obligation to provide information. It states that the applicant’s ex-ante contribution was nevertheless based on data which it had itself submitted, that is to say data communicated at a later stage and in paper form and, in its own words, ‘in compliance with the FMSA’s legal opinion’.
116Second, the SRB notes that the members of the executive session did not oppose the decision to use a written procedure. Moreover, the validation of the results of the calculation is the formal conclusion of a long-term process. Those members were duly involved in that process and therefore did not need 48 hours, let alone 5 working days, to validate the results of the calculation.
117In any event, the members of the executive session of the SRB were well aware of the need to provide the results of the calculations to the NRAs as a matter of urgency. In the context of its close cooperation with the NRAs, the SRB undertook to provide them with those results in mid-April 2016. Moreover, under Article 3(2) of the IGA, ex-ante contributions for 2016 collected at national level had to be transferred to the SRF before 30 June 2016.
118According to the SRB, that interpretation of the RPES is consistent with the need for flexibility and speed in the administration’s operations. In any event, the alleged infringements of Article 9(1) and (2) of the RPES cannot be classified as an infringement of an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU. On the contrary, they are internal rules of procedure on which third parties cannot rely. In addition, if a procedural rule is infringed without preventing the objectives pursued by that rule from being attained, there is no infringement of an essential procedural requirement. In the present case, there is no requirement to comply with the time limits provided for in Article 9(2) and (3) of the RPES and those rules cannot be interpreted as meaning that members of the executive session of the SRB participating in the executive session are forced to comply with the minimum time limit, even if that time limit is not necessary for taking a decision.
119Lastly, with regard to the second procedure for the adoption of the first contested decision, the SRB maintains that the Court has already held that the acceptance of a decision by consensus is no longer valid if there is a clear opposition to its adoption. Similarly, the applicant cannot legitimately infer from the practice of the SRB in its executive session that consensus always requires an active vote. Nor does the fact that a consensus had to be reached within a very short period of time constitute an infringement of Article 9(2) and (3) of the of the RPES since even that brief period was sufficient in the circumstances of the present case, in particular due to the fact that the adjusted amounts which had been circulated by email on 15 April 2016 at 20.06 differed only slightly from those already approved in the first procedure for the adoption of the first contested decision.
120In the present case, as indicated in paragraph 94 above, the written procedure for the adoption of the first contested decision was initiated by an email of 13 April 2016 sent at 17.41, which gave the members of the executive session of the SRB until 15 April 2016 at 12.00 to approve the draft decision, thus a period of less than two working days, whereas the period provided for by Article 9(2) of the RPES is ‘normally … not less than five working days’. Contrary to the requirements set out in the RPES, the email of 13 April 2016 gives no reason for the shortening of that period. Nor does it refer to Article 9(2) of the RPES.
121Furthermore and for the sake of completeness, it should be pointed out that the SRB has not proved that there was a pressing need to take a decision on 15 April 2016 rather than 20 April 2016, a date which would have ensured compliance with the procedural rules. In that regard, it should be observed that 15 April 2016 is not a date imposed by the rules. That shortening of the period for the adoption of the decision constitutes a first procedural irregularity.
122In addition, Article 9(1) of the RPES provides that decisions may be taken by written procedure, unless at least two members of the executive session object within the first 48 hours following the launch of the written procedure.
123In that regard, it transpires that the SRB also infringed the RPES in so far as the period of time set for the written procedure was six hours shorter than the 48 hours allowed for objecting to the use of the written procedure. On the assumption that it was necessary to adopt the decision on 15 April 2016, there was nothing to prevent the deadline for responding being set at 18.00 on that day. That constitutes a second procedural irregularity.
124The SRB errs in attempting to justify those infringements of the RPES on the basis that no objections were expressed by the members of the executive session of the SRB. It is sufficient to observe, first, that the SRB is obliged to apply the rules governing its decision-making process, which specifically allow for the shortening of the time periods provided that certain rules are respected and, second, that the alleged absence of objections in no way eliminates the infringement committed initially when the SRB imposed a time limit contrary to the requirements of the RPES.
125Next, while the email of 13 April 2016 requested the members of the executive session of the SRB to provide their formal approval by email to the mailbox of the SRB, the SRB has produced no emails. The only evidence referring to an approval is the statement by the SRB, in its email of Friday 15 April 2016 sent at 19.04, that such approval had been given.
126Moreover, in that email on Friday 15 April 2016 sent at 19.04, which, in the first instance at least, was not addressed to all the members of the executive session (A, a member of the executive session of the SRB, was not an addressee of the email, which was sent to him 21 minutes later), the SRB noted an error in the calculation of the ex-ante contributions and announced that an amended version of ‘Memorandum 2’ would be sent by separate email. The email sent at 19.04 added, without providing a time limit for a possible response, that, in the absence of any objection by the members of the executive session of the SRB, the approval already given by them would be regarded as also applying to the amended contribution amounts. In so doing, the SRB initiated a procedure for adoption based on the failure to object, a procedure which is admittedly not unknown in the provisions of the RPES but which was nonetheless used in practice in irregular circumstances, given, in particular, that no time limit was stated for the adoption of the decision. In addition to the two irregularities already identified in paragraphs 120 and 123 above, that constitutes a third procedural irregularity.
127Then, on the same day, at 20.06, a separate email was sent from the SRB with the attachment of an XLSX document entitled ‘Final results15042016.xlsx’. Once again, that email was not sent to A. The latter circumstance constitutes a fourth procedural irregularity.
128In addition, it follows from the date of the first contested decision (15 April 2016), that, even though no time was stated in the email of 15 April 2016 sent at 19.04, consensus was deemed to have been reached on the same day, and therefore logically at midnight. Admittedly, the SRB had stated, in its email of 13 April 2016 (attached to the email of 15 April 2016 sent at 19.04) that it was aiming to adopt the decision on 15 April. On the assumption that that information was sufficient to indicate that any objection had to be expressed before midnight on 15 April 2016, the fact remains that, in the present case, a consensus-based approval procedure was put into effect at 19.04 on a Friday evening with a view to it being concluded that same evening by midnight. Those circumstances compound the effects of the third procedural irregularity established in paragraph 126 above.
129It is still less settled that that consensus procedure was lawful given that, in addition to the fact that the email of 20.06 was not sent to A (see paragraph 127 above), a failure which, in itself, vitiates the procedure, the SRB has not proved that the other members of the executive session of the SRB became aware either that the email of 20.06 (or, for that matter, the email of 19.04) had been sent) or of its content. The SRB produced certain evidence of verification seeking to establish that the emails sent at 19.04 and 20.06 had reached the recipients’ mailboxes. However, regardless even of the fact that that verification, carried out by questionnaire, does not concern all the members of the executive session of the SRB, it does not in any way prove that the members of the executive session of the SRB actually became aware even of the fact that those emails had been sent before midnight on the same evening.
130In the light of the very nature of a consensus procedure whereby approval is inferred from the absence of objections, such a procedure, necessarily and as a minimum, requires that it be established, before the adoption of the decision, that the persons participating in the consensus-based approval procedure have been informed of that procedure and have been able to examine the draft submitted for their approval. In the present case, the first contested decision was adopted, in view both of the statements appearing in the text of that decision and of the fact that the data sheets relating to that decision were sent to the NRAs on the same day (see paragraph 20 above), at midnight on 15 April 2016 at the latest. However, the SRB has not proved that it had been established, before midnight, that the members of the executive session of the SRB had been able to read the amended draft decision, or even merely to apprise themselves of the existence of the emails of 19.04 and 20.06.
131In addition, and by way of an incidental point, it should be pointed out that, while the annex to the first contested decision presented for approval on 13 April 2016 was a digital document in PDF format (see paragraphs 94 and 120 above), the annex presented for approval on the evening of 15 April 2016 was a digital document in XLSX format (see paragraphs 96 and 127 above).
132Thus, it should be observed that, if the error referred to in the emails of the evening of 15 April 2016 (see paragraph 95 above) had not arisen, a digital document in PDF format would have been adopted as the annex to the first contested decision, and not an XLSX file.
133The Court cannot but find, with regard to that difference, that the SRB, although obliged to ensure the unity and formal coherence of the documents submitted for approval and thereafter adopted, used different electronic formats. The consequences of that imprecision are more than purely procedural, in as much as the information conveyed by a PDF file does not provide any detail in respect of the formula cells of an XLSX file and such a PDF file contains, in the present case at least, rounded values, unlike an XLSX file. Thus, with regard to the only risk adjustment factor appearing in the first contested decision, namely that relating to the European context, it is apparent from the information contained in the SRB’s responses that the value provided in the first contested decision, as produced in response to the first order, that is in a PDF file, is not the exact value appearing in the XLSX file – which contains fourteen decimal places – but a figure rounded to two decimal places which cannot be used to verify the calculation of the contribution.
134It follows from the foregoing considerations that, even over and above the lack of authentication established in paragraph 106 above, which requires that the contested decisions be annulled, the procedure for the adoption of the first contested decision was conducted in clear breach of procedural requirements relating to the approval of that decision by the members of the executive session of the SRB and to securing that approval.
135In that regard, it should be observed that the fact that natural or legal persons may not rely on a breach of rules which are not intended to ensure protection for individuals but the purpose of which is to organise the internal functioning of services in the interests of good administration (see, to that effect, judgment of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 49 and 50) does not, however, mean that an individual can never successfully plead infringement of a rule governing the decision‑making process leading to the adoption of an act of the European Union. Among the provisions governing the internal procedures of an institution, a distinction must be made between, on the one hand, those in respect of which natural and legal persons cannot plead infringement, because they concern only the rules governing the internal functioning of the institution and can have no effect on the legal situation of those persons, and, on the other hand, those provisions which, if infringed, may, on the contrary, be relied on as they create rights and are a factor contributing to legal certainty for those persons (judgment of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, T‑122/09, not published, EU:T:2011:46, paragraph 103).
136In the present case, an analysis of the course of the procedure followed for the adoption of the first contested decision reveals a significant number of breaches of the rules relating to the organisation of an electronic written procedure for the adoption of decisions. Although Article 9 of the RPES does not expressly make provision to that effect, it goes without saying that any written procedure necessarily involves sending the draft decision to all members of the decision-making body concerned by that procedure. In the case, in particular, of a procedure for the adoption of decisions by consensus, as in the present case (see paragraphs 126 to 130 above), the decision cannot be adopted unless it is established, at the very least, that all the members had been able to read the draft decision beforehand. Finally, that procedure requires that a time limit be stated which allows the members of that body to adopt a position on the draft.
137Those rules of procedure which seek to ensure compliance with the essential procedural requirements inherent in any electronic written procedure and in any consensus-based adoption procedure, were not respected in the present case. Those infringements have a direct impact on legal certainty, since they have led to the adoption of a decision in respect of which it has not been established not only that it was approved by the competent body but even that all its members had read it beforehand.
138Failure to comply with such procedural rules necessary for the expression of consent constitutes an infringement of essential procedural requirements which the EU courts may examine of their own motion (judgments of 24 June 2015, Spain v Commission, C‑263/13 P, EU:C:2015:415, paragraph 56, and of 20 September 2017, Tilly-Sabco v Commission, C‑183/16 P, EU:C:2017:704, paragraph 116).
139Finally, as regards the second contested decision, it should be noted that it does not replace the first contested decision, which determined the contribution amounts, but merely makes an adjustment to those amounts on the basis of a limited technical point. The annulment of the first contested decision necessarily entails the annulment of the second.
140It follows from all of the foregoing considerations, there being no need to give a ruling on the applicant’s other arguments, that the contested decisions must also be annulled for infringement of the procedural rules relating to their adoption.
The seventh plea, alleging infringement of the obligation to state reasons
141The applicant recalls that, according to the case-law, the requirement to state reasons must be assessed by reference to the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations.
142According to the applicant, neither the reasons contained in the contested decisions nor those contained in the collection notices can be regarded as sufficient.
143First, the applicant states that those reasons do not make it possible to determine whether the SRB relied on its electronic (corrected) declaration or its written declaration, the amount up to which the balance sheet total (adjusted for over-the-counter derivatives or not adjusted) was included in the calculation of the contribution and whether the calculation made in the contested decisions is based on a gross value or a net value for the derivative contracts.
144Second, Annex 2 to the first collection notice relates exclusively to the 2015 contribution. While Annex 1 to the first collection notice concerns the 2016 contribution, it states only the amounts resulting from the calculation, excluding its parameters. Neither the contested decisions nor the collection notices clearly set out the steps in the calculation or the classifications applied to the applicant. In the view of the applicant, they do not present a true calculation of the contribution, indicating the values declared by the applicant (such as total liabilities, capital, covered deposits, liabilities arising from all derivative contracts, etc.). It is also impossible for the applicant to ascertain the extent to which the SRB carried out assessments which deviated from the data provided in the written declaration. In that regard, the applicant notes that it submitted two declaration forms, only one of which was to be used depending on its legal appraisal.
145The reference by the contested decisions to their legal bases also cannot, the applicant argues, make up for the failure to state reasons. First, the contested decisions cite only Article 70(2) of Regulation No 806/2014, without referring to Directive 2014/59 or Delegated Regulation 2015/63, despite the fact that they are decisive for the calculation of the contribution. Second, a reference, even if it is exhaustive, to legal bases is not sufficient in the present case. The requirements to state reasons are all the more stringent since the legal context of the adopted decision is unknown and the adopted measure is the subject of dispute between the interested parties.
146The applicant acknowledges that the calculation of ex-ante contributions is complex. Nevertheless, that complexity specifically requires that persons subject to pay the contributions are in a position to verify whether there was a legal basis for the SRB’s calculation of the contributions. Moreover, the statement of reasons also gives the SRB the opportunity to self-monitor. In addition, in contrast to the field of antitrust law, the parameters of the SRB’s calculation of ex-ante contributions are prescribed in detail by the applicable legislation. Therefore, the SRB should not encounter any insurmountable difficulties in explaining to the applicant the steps in the calculation it had to carry out in order to obtain those results.
147Likewise, any interest in the confidentiality of other institutions does not preclude an appropriate statement of reasons for the contested decisions being given, since the applicant seeks only to obtain access to data concerning it.
148In addition, the access to the file that was granted to the applicant, at its initiative, after the present action had been brought, does not remedy the failure to state reasons.
149The second contested decision is, in the view of the applicant, also insufficiently reasoned. The letter of 22 May 2016 from the SRB to the NRAs merely stated that a ‘pillar IV’ risk adjustment required the amendment to the first contested decision. The technical note with further background, to which that letter refers, was not attached to the second contested decision or to the second collection notice.
150As for the letter of 23 May 2016 which the FMSA sent to the Federal Association of German Public Banks, it stated that the average adjustment to the amount of the annual contribution charged to approved institutions in Germany amounted to 1.21%. In the applicant’s case, however, the increase determined by the second contested decision corresponds to 11.45% of the previously determined 2016 contribution.
151In addition, the reason given in the second collection notice in support of the correction concerns the parameter relating to the institutional protection scheme. That notice makes reference to fields CD 133 and CD 134 of its annex. However, there is no value in field CD 134. In addition, the amendments are not limited to the two fields mentioned above.
152The SRB disputes those arguments.
153It submits that the applicant is neither an addressee of the contested decisions nor is it directly concerned by them. Those decisions were intended for the FMSA and their statement of reasons was sufficient for the FMSA which, as was the case for all of the other NRAs, was closely involved in the calculation of 2016 ex-ante contributions. In any event, the contested decisions are, in the SRB’s view, sufficiently reasoned also in relation to the applicant.
154First, the contested decisions refer to Regulation No 806/2014 as the legal basis. That regulation, Delegated Regulation 2015/63, Implementing Regulation 2015/81 and Directive 2014/59 set out in detail the method to be applied in order to calculate ex-ante contributions. The contested decisions were therefore adopted in a context which was well known to the applicant. Second, the applicant was closely involved in the procedure. It is aware of the main reasoning in so far as the calculation is based, first, on the basic method explained in the acts mentioned above and, second, on the detailed data provided by it. Third, the applicant received extremely detailed explanations regarding the calculation and reasoning followed in the collection notices. In addition, it received additional information, namely the input values, the intermediate calculation and the final result of the calculation, following its request for access to documents.
155The SRB argues that the applicant goes beyond the requirements imposed by the obligation to state reasons when it claims that it must be placed in a position to enable it to recalculate the exact amount of its ex-ante contribution. The ex-ante contributions of the institutions are interconnected and the various steps in the calculation procedure for an institution involve using data from all or at least a large number of institutions. In that context, the obligation to state reasons must be reconciled with the obligation to protect the professional secrecy of other institutions. The applicant has already had access to all the information concerning it which is not linked to other institutions.
156In its reply to a question put by the Court at the hearing, the Commission added in that regard that while it was, from an economic point of view, admittedly possible to evaluate the risk profile of an institution solely on the basis of its own data, the interdependence of the ex-ante contributions of all institutions was, however, dictated in this case by the applicable legislation, in particular Articles 69(1) and 70(2) of Regulation No 806/2014.
157According to the SRB, an approach which does not allow for a full recalculation of the amount of ex-ante contributions is, however, consistent with the administrative practice in other areas of EU law, in particular competition law. In addition, account must be taken of the practical and technical possibilities of the obligation to state reasons within the specified time limit for the adoption of the contested decisions.
158As regards the second contested decision, the FMSA was informed of the procedure and the reasons for the adjustment in a letter which was signed by the Vice-Chair of the SRB sent to all NRAs with the second contested decision. The applicant was provided with a detailed statement of reasons and the details of the new calculation in the second collection notice.
159Lastly, since the allegation that there was an error in the (revised) calculation of the 2016 ex-ante contributions in respect of the applicant is not substantiated, according to the SRB, the applicant has no legitimate interest in the annulment of the contested decisions on the ground of a possible procedural defect.
160According to settled case-law, the statement of reasons required under Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its jurisdiction to review legality (see judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 59 and the case-law cited).
161The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the act, the nature of the reasons given and the interest which the addressees of the act, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for an act meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 7 March 2013, Acino v Commission, T‑539/10, not published, EU:T:2013:110, paragraph 124 and the case-law cited).
162Moreover, the statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying that measure (see judgment of 15 July 2015, Pilkington Group v Commission, T‑462/12, EU:T:2015:508, paragraph 21 and the case-law cited).
163As a preliminary point, it should be recalled that although, under the system established by Regulation No 806/2014 and Implementing Regulation 2015/81, decisions determining ex-ante contributions are notified to the NRAs, the institutions which are liable to pay those contributions, including the applicant, are, contrary to the SRB’s assertions, individually and directly concerned by those decisions (see paragraphs 61 to 82 above).
164Therefore, the interest that those institutions may have in receiving explanations must also be taken into account when assessing the extent of the obligation to state the reasons for the decisions in question. In addition, it should be noted that the purpose of the statement of reasons is also to enable the EU Courts to exercise their power of review.
165In the present case, there being no need to examine the applicant’s arguments relating to the absence, in the first contested decision, of indications as to which of its declarations was used by the SRB for the calculation and for what reasons, it should be noted that the SRB has committed a number of infringements of the obligation to state reasons.
166First, with regard to the wording of the first contested decision, it contains only a reference to Regulation No 806/2014, in particular Article 70(2) thereof, a reference to consultations and cooperation with certain bodies (European Central Bank (ECB) and national authorities) and the fact that the calculation is made so that the aggregate of the individual contributions does not exceed a certain level (namely 12.5% of the target level provided for in Article 69(1) of Regulation No 806/2014). It contains no information regarding the successive steps in the calculation of the applicant’s contribution, or the figures related to those various steps.
167Admittedly, a reading of Article 70 of Regulation No 806/2014, referred to in the first contested decision, and in particular Article 70(6), enables it to be understood that ex-ante contributions are calculated by the SRB in accordance, inter alia, with ‘the delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of Directive 2014/59/EU’, that is to say, in the present case, Delegated Regulation 2015/63.
168In addition, Delegated Regulation 2015/63 contains detailed rules which the SRB must apply when it calculates the contributions.
169However, that evidence is not sufficient to understand how the SRB applied those rules in the applicant’s case in order to arrive at the amount of the contribution concerning it set out in the annex to the first contested decision.
170It should be added that the first contested decision does not mention the interim decisions taken by the SRB for the purposes of implementing the legislation concerning the calculation of contributions, namely, at the very least, the decisions mentioned in paragraph 29 above.
171It must be stated, first, that those interim decisions determine elements of the calculation procedure, as well as the actual calculation of contributions. Second, those interim decisions not only implement, but also, as far as some of them are concerned, supplement the applicable legislation. Since those interim decisions were not published or otherwise made known to the institutions, the SRB’s argument that the statement of reasons for the first contested decision was sufficient on the grounds that Regulation No 806/2014, Delegated Regulation 2015/63, Implementing Regulation 2015/81 and Directive 2014/59 set out in detail the method to be applied to calculate ex-ante contributions (see paragraph 154 above) cannot, in any event, succeed.
172It is sufficient to cite two examples from the interim decisions mentioned in paragraph 29 above, namely, first, Decision SRB/ES/SRF/2016/01 (see paragraph 29, eighth indent, above), Article 1 of which sets the target level for 2016, which is a factor computed in the calculation of the applicant’s ex-ante contribution (see Article 4 of Implementing Regulation 2015/81 and Annex I, Step 6, to Delegated Regulation 2015/63), and, second, Decision SRB/ES/SRF/2015/00 (see paragraph 29, first indent, above) which implemented Article 6(1)(d) of Delegated Regulation 2015/63 with regard to the determination by the SRB of the additional risk indicators comprising risk pillar IV, one of the two risk pillars applied in the present case by the SRB, according to the data sheet which is also mentioned in paragraph 29 above.
173Although those interim decisions were communicated to the applicant by the SRB, that was not until 3 August 2016, therefore after the present action had been brought.
174In that regard, it should be recalled that the observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought (see judgment of 12 November 2008, Evropaïki Dynamiki v Commission, T‑406/06, not published, EU:T:2008:484, paragraph 50 and the case-law cited).
175In addition, with regard to the annex to the first contested decision, it should be noted that, even though it contains an amount for the risk adjustment factor in the European context, it contains no similar indication concerning the risk adjustment factor for the part of the calculation made in the national context. Similarly, while it specifies the type of calculation method used in the European context, it provides no indication as to the calculation method used by the SRB with reference to the national context.
176However, as is clear from Article 8(1)(a) of Implementing Regulation 2015/81, the proportion of the calculation of contributions made by the SRB with reference to the national context, is, in 2016, 60% of the calculation of the contributions by institutions and the European part makes up only 40%. The statement of reasons in the first contested decision therefore appears, in that regard, to be insufficient.
177It should be added that, contrary to the SRB’s assertions, the inadequacy of the statement of reasons of the first contested decision cannot be compensated for by the reasoning contained in the first collection notice adopted by the FMSA pursuant to that decision.
178It is true that, in the present case, the first collection notice contains more detailed explanations of the calculation of the applicant’s contribution, both for its ‘European’ and its ‘national’ part.
179However, under the system established by the applicable legislation, it is the SRB which calculates and determines ex-ante contributions. The SRB’s decisions on the calculation of those contributions are addressed only to the NRAs (Article 5(1) of Implementing Regulation 2015/81) and it is for the NRAs to communicate them to institutions (Article 5(2) of Implementing Regulation 2015/81) and to raise the contributions from institutions on the basis of those decisions (Article 67(4) of Regulation No 806/2014).
180Accordingly, when the SRB acts in accordance with Article 70(2) of Regulation No 806/2014, it adopts decisions which are definitive and are of direct and individual concern to the institutions.
181Consequently, it is the responsibility of the SRB, the author of those decisions, to state the reasons on which they are based. That obligation cannot be delegated to the NRAs, nor can an infringement of that obligation be remedied by them, if the status of the SRB as the author of those decisions and its responsibility in that respect is not to be disregarded and, if, in view of the diversity of the NRAs, a risk of unequal treatment of institutions with regard to the SRB’s reasoning in its decisions is not to arise.
182In any event, it should be noted that the data in Annex 1 to the first collection notice, presented as details of the calculation of the applicant’s ex-ante contribution, are not identified as being SRB data. On the contrary, they are presented as an integral part of the collection notice, which is a measure under German law, so that it is not possible to distinguish between the elements originating from the FMSA and those originating, as, appropriate from the SRB.
183Furthermore, it should be noted that, even though the risk profile adjustment factor must necessarily include all of the required decimals, if the calculation is not to be approximate, the adjustment factor in the annex to the first collection notice (with four decimal places) does not correspond to the adjustment factor (with two decimal places) in the annex to the first contested decision as communicated to the applicant by the SRB on 3 August 2016 (see paragraph 29 above) and submitted to the Court in Annex A.22 to the application, nor to the adjustment factor (to fifteen decimal places) in that annex as communicated to the Court in response to the second order.
184Likewise, other values which require the same precision and are contained (with four decimal places) in the first collection notice (see fields CD 21 (leverage ratio), CD 35 (pillar I composite indicator), CD 36 (pillar IV composite indicator), CD 37 (composite indicator) or CD 38 (final composite indicator) in Annex 1 to that notice) do not correspond to those contained (with only two decimal places) in the data sheet provided by the SRB to the applicant on 3 August 2016 (see paragraph 29 above) and submitted to the Court as Annex A.25 to the application.
185In addition, with regard to the latter data sheet provided by the SRB to the applicant, it is appropriate to recall the case-law already cited in paragraph 174, according to which observance of the duty to state reasons must be assessed in the light of the information available to the applicant at the time the application was brought.
186It follows from the foregoing that, as for the decisions also mentioned in paragraph 29 above, that sheet was sent to the applicant by the SRB only after the present action had been brought.
187As regards the second contested decision, it should be noted that the decision itself infringes the obligation to state reasons, for the same reasons as those stated in respect of the first contested decision and for the additional reason that it provides no reason for the adjustment which it makes.
188It is true that the reasons for that adjustment were set out in the letter of 22 May 2016 from the SRB to the NRAs with the second contested decision and in the letter of 23 May 2016 from the FMSA to German institutions.
189However, those letters contain only general explanations as to the reasons for the adjustment made by the second contested decision. As for the technical note to which the letter of 22 May 2016 refers, that was not produced by the SRB.
190With regard to the reasons contained in the second collection notice and the data sheet provided to the applicant on 3 August 2016, reference is made to the considerations set out in paragraphs 177 to 184 above.
191Moreover, it should also be noted that, as far as the risk adjustment factor in the EA environment is concerned, in addition to the fact that the documents in question do not set out an exact value for that factor, but a figure that is rounded to nine or to two decimal places, they also set out a different value ([confidential] for the second collection notice and [confidential] for the data sheet) from the value set out in the annex to the second contested decision ([confidential]).
192Finally, the SRB’s argument referred to in paragraph 159 above must be rejected. While it follows from the case-law that an applicant has no legitimate interest in the annulment of a decision on the ground of a procedural defect, an absence of reasons or inadequate statement of reasons for a decision where annulment of the decision can only lead to the adoption of another decision which is identical in substance to the decision annulled (see, to that effect, judgment of 4 May 2017, Schräder v CPVO – Hansson (SEIMORA), T‑425/15, T‑426/15 and T‑428/15, not published, EU:T:2017:305, paragraph 109 and the case-law cited), the fact remains that, in the present case, it cannot be ruled out that the annulment of the contested decisions gives rise to the adoption of different decisions. In the absence of full information on the SRB’s interim determinations and calculations and all of the data relating to the other institutions, despite the interdependence between the applicant’s contribution and the contribution of each of the other institutions, neither the applicant nor the Court is in a position to verify, in the present case, whether the annulment of those decisions would necessarily give rise to the adoption of a new decision which is identical in substance.
193It follows from the foregoing that, in addition to the reasons for annulment already set out in paragraphs 86 to 107 and 120 to 140 above, the contested decisions must also be annulled in respect of the infringement of the obligation to state reasons.
194Therefore, the contested decisions must be annulled, there being no need to examine the first six pleas in law put forward by the applicant.
Costs
195Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the SRB has been unsuccessful, it must be ordered to bear its own costs as well as those incurred by applicant, in accordance with the form of order sought by the latter.
196In accordance with Article 138(1) of the Rules of Procedure, the Commission shall bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber, Extended Composition)hereby:
1.Annuls the Decision of the Executive Session of the Single Resolution Board (SRB) of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/06) and the Decision of the Executive Session of the SRB of 20 May 2016 on the adjustment of the 2016 ex-ante contributions to the Single Resolution Fund, supplementing the Decision of the Executive Session of the SRB of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/13), to the extent that they concern Portigon AG;
2.Orders the SRB to bear its own costs and pay those incurred by Portigon;
3.Orders the European Commission to bear its own costs.
Delivered in open court in Luxembourg on 28 November 2019.
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