Contents
Judgment of the Court (Fourth Chamber)25 March 2021note(Reference for a preliminary ruling — Deposit-guarantee schemes — Directive 94/19/EC — Article 1(3)(i) — Article 7(6) — Article 10(1) — Concept of unavailable deposit — Determination of unavailability of deposits — Competent authority — Depositor’s rights to compensation — Contractual clause contrary to Directive 94/19 — Principle of primacy of Union law — European System of Financial Supervision — European Banking Authority (EBA) — Regulation (EU) No 1093/2010 — Article 1(2) — Article 4(2)(iii) — Article 17(3) — EBA recommendation to a national banking authority on measures to comply with Directive 94/19 — Legal effects — Validity — Reorganisation and winding up of credit institutions — Directive 2001/24/EC — Article 2, seventh indent — Concept of reorganisation measures — Compatibility with Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union — Liability of Member States for breach of Union law — Conditions — Sufficiently serious breach of EU law — Procedural autonomy of Member States — Principle of sincere cooperation — Article 4(3) TEU — Principles of equivalence and effectiveness)In Case C‑501/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria), made by decision of 17 July 2018, received at the Court on 30 July 2018, in the proceedingsBTvBalgarska Narodna BankaTHE COURT (Fourth Chamber),composed of M. Vilaras, President of the Chamber, N. Piçarra (Rapporteur), D. Šváby, S. Rodin and K. Jürimäe, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Balgarska Narodna Banka, by A. Kalaydzhiev, advokat,– the European Commission, initially by H. Krämer, Y. Marinova and A. Steiblytė, then by Y. Marinova and A. Steiblytė, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 17 September 2020,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of:– Article 1(3)(i), Article 7(6) and of Article 10(1) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5), as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009 (OJ 2009 L 68, p. 3) (‘Directive 94/19’).– Article 4(2)(iii), Article 17(3) and Article 26(2) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12);– the seventh indent of Article 2 of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15), in the light of Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’);– the principle that Member States are liable for damage caused to individuals owing to infringements of EU law;– Article 4(3) TEU, read in conjunction with the principles of procedural autonomy of the Member States, equivalence and effectiveness;as well as the validity of Recommendation EBA/REC/2014/02 of the European Banking Authority (EBA) of 17 October 2014 addressed to the Balgarska Narodna Banka (Bulgarian National Bank; ‘the BNB’) and the Fund za garantirane na vlogovete v bankite (Bank Deposit Guarantee Fund; ‘the FGVB’) on the measures necessary to comply with Directive 94/19/EC.
2The request has been made in proceedings between BT and the BNB concerning a claim for compensation for the loss which BT claims to have suffered as a result of several actions and omissions of the BNB in the context of supervisory measures taken against Korporativna targovska banka AD (‘KTB’).
Legal context
European Union law
Directive 94/19
3Directive 94/19 was repealed by Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ 2014 L 173, p. 149). As that repeal took effect on 4 July 2015, Directive 94/19 remains applicable to the case in the main proceedings.
4The first, second, eighth, ninth, twenty-fourth and twenty-fifth recitals of Directive 94/19 state that:‘… in accordance with the objectives of the Treaty, the harmonious development of the activities of credit institutions throughout the Community should be promoted through the elimination of all restrictions on the right of establishment and the freedom to provide services, while increasing the stability of the banking system and protection for savers;… when restrictions on the activities of credit institutions are eliminated, consideration should be given to the situation which might arise if deposits in a credit institution that has branches in other Member States become unavailable; whereas it is indispensable to ensure a harmonised minimum level of deposit protection wherever deposits are located in the Community; whereas such deposit protection is as essential as the prudential rules for the completion of the single banking market;…… harmonisation must be confined to the main elements of deposit-guarantee schemes and, within a very short period, ensure payments under a guarantee calculated on the basis of a harmonised minimum level;… deposit-guarantee schemes must intervene as soon as deposits become unavailable;…… this Directive may not result in the Member States’ or their competent authorities’ being made liable in respect of depositors if they have ensured that one or more schemes guaranteeing deposits or credit institutions themselves and ensuring the compensation or protection of depositors under the conditions prescribed in this Directive have been introduced and officially recognised;… deposit protection is an essential element in the completion of the internal market and an indispensable complement to the system of supervision of credit institutions on account of the solidarity it creates among all the institutions in a given financial market in the event of the failure of any of them’.
5Article 1 of that directive provides:‘For the purposes of this Directive:1. “deposit” shall mean any credit balance which results from funds left in an account or from temporary situations deriving from normal banking transactions and which a credit institution must repay under the legal and contractual conditions applicable, and any debt evidenced by a certificate issued by a credit institution.…3. “unavailable deposit” shall mean a deposit that is due and payable but has not been paid by a credit institution under the legal and contractual conditions applicable thereto, where either:(i) the relevant competent authorities have determined that in their view the credit institution concerned appears to be unable for the time being, for reasons which are directly related to its financial circumstances, to repay the deposit and to have no current prospect of being able to do so.The competent authorities shall make that determination as soon as possible and in any event no later than five working days after first becoming satisfied that a credit institution has failed to repay deposits which are due and payable; ……’
6Article 3(1) and (2) of Directive 94/19 provides:1. Each Member State shall ensure that within its territory one or more deposit-guarantee schemes are introduced and officially recognised. ……2. If a credit institution does not comply with the obligations incumbent on it as a member of a deposit-guarantee scheme, the competent authorities which issued its authorisation shall be notified and, in collaboration with the guarantee scheme, shall take all appropriate measures including the imposition of sanctions to ensure that the credit institution complies with its obligations.’
7Article 7(1a), (2) and (6) of that directive provides:1a. By 31 December 2010, Member States shall ensure that the coverage for the aggregate deposits of each depositor shall be set at EUR 100000 in the event of deposits being unavailable.…2. Member States may provide that certain depositors or deposits shall be excluded from guarantee or shall be granted a lower level of guarantee. ……6. Member States shall ensure that the depositor’s rights to compensation may be the subject of an action by the depositor against the deposit-guarantee scheme.’
8According to Article 10(1) of Directive 94/19:‘Deposit-guarantee schemes shall be in a position to pay duly verified claims by depositors in respect of unavailable deposits within 20 working days of the date on which the competent authorities make a determination as referred to in Article 1(3)(i) or a judicial authority makes a ruling as referred to in Article 1(3)(ii). …’
Regulation No 1093/2010
9Recitals 27 to 29 in the preamble to Regulation No 1093/2010 state:(27) Ensuring the correct and full application of Union law is a core prerequisite for the integrity, transparency, efficiency and orderly functioning of financial markets, the stability of the financial system, and for neutral conditions of competition for financial institutions in the Union. A mechanism should therefore be established whereby the [EBA] addresses instances of non-application or incorrect application of Union law amounting to a breach thereof. That mechanism should apply in areas where Union law defines clear and unconditional obligations.(28) To allow for a proportionate response to instances of incorrect or insufficient application of Union law, a three-step mechanism should apply. First, the [EBA] should be empowered to investigate alleged incorrect or insufficient application of Union law obligations by national authorities in their supervisory practice, concluded by a recommendation. Second, where the competent national authority does not follow the recommendation, the Commission should be empowered to issue a formal opinion taking into account the [EBA]’s recommendation, requiring the competent authority to take the actions necessary to ensure compliance with Union law.(29) Third, to overcome exceptional situations of persistent inaction by the competent authority concerned, the [EBA] should be empowered, as a last resort, to adopt decisions addressed to individual financial institutions. That power should be limited to exceptional circumstances in which a competent authority does not comply with the formal opinion addressed to it and in which Union law is directly applicable to financial institutions by virtue of existing or future Union regulations.’
10In accordance with Article 1(2) of that regulation, the EBA is to act in accordance with the powers conferred on it by that regulation and within the scope of, inter alia, Directive 94/19 to the extent that it applies to credit and financial institutions and the competent authorities responsible for their supervision.
11Article 4 of that regulation states:‘For the purpose of this Regulation the following definitions apply:…(2) “competent authorities” means:…(iii) with regard to deposit guarantee schemes, bodies which administer deposit-guarantee schemes pursuant to Directive [94/19], or, where the operation of the deposit-guarantee scheme is administered by a private company, the public authority supervising those schemes pursuant to that Directive.’
12Article 17 of Regulation No 1093/2010, entitled ‘Breach of Union law’, provides:1. Where a competent authority has not applied the acts referred to in Article 1(2), or has applied them in a way which appears to be a breach of Union law, including the regulatory technical standards and implementing technical standards established in accordance with Articles 10 to 15, in particular by failing to ensure that a financial institution satisfies the requirements laid down in those acts, the [EBA] shall act in accordance with the powers set out in paragraphs 2, 3 and 6 of this Article.2. Upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the Banking Stakeholder Group, or on its own initiative, and after having informed the competent authority concerned, the [EBA] may investigate the alleged breach or non-application of Union law.…3. The [EBA] may, not later than 2 months from initiating its investigation, address a recommendation to the competent authority concerned setting out the action necessary to comply with Union law.…6. Without prejudice to the powers of the Commission under Article 258 TFEU, where a competent authority does not comply with the formal opinion referred to in paragraph 4 within the period of time specified therein, and where it is necessary to remedy in a timely manner such non-compliance in order to maintain or restore neutral conditions of competition in the market or ensure the orderly functioning and integrity of the financial system, the [EBA] may, where the relevant requirements of the acts referred to in Article 1(2) are directly applicable to financial institutions, adopt an individual decision addressed to a financial institution requiring the necessary action to comply with its obligations under Union law including the cessation of any practice.…7. Decisions adopted under paragraph 6 shall prevail over any previous decision adopted by the competent authorities on the same matter.…’
Directive 2001/24
13Recitals 2, 5 and 6 of Directive 2001/24 are worded as follows:(2) At the same time as those obstacles are eliminated, consideration should be given to the situation which might arise if a credit institution runs into difficulties, particularly where that institution has branches in other Member States.…(5) The adoption of Directive [94/19], which introduced the principle of compulsory membership by credit institutions of a guarantee scheme in their home Member State, brings out even more clearly the need for mutual recognition of reorganisation measures and winding-up proceedings.(6) The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that Member State. Owing to the difficulty of harmonising Member States’ laws and practices, it is necessary to establish mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised.’
14According to Article 1(1) of that directive, the latter ‘shall apply to credit institutions and their branches set up in Member States other than those in which they have their head offices, as defined in points (1) and (3) of Article 1 of Directive 2000/12/EC [of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (OJ 2000 L 126, p. 1)], subject to the conditions and exemptions laid down in Article 2(3) of that Directive’.
15Article 2, seventh indent, of Directive 2001/24 defines ‘reorganisation measures’ as ‘measures which are intended to preserve or restore the financial situation of a credit institution and which could affect third parties’ pre-existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims’.
16Entitled ‘Adoption of reorganisation measures – applicable law’, Article 3 of that directive provides:1. The administrative or judicial authorities of the home Member State shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other Member States.2. The reorganisation measures shall be applied in accordance with the laws, regulations and proceedings applicable in the home Member State, unless otherwise provided in this Directive.…The reorganisation measures shall be effective throughout the [Union] once they become effective in the Member State where they have been taken.’
Recommendation EBA/REC/2014/02
17In recital 25 of Recommendation EBA/REC/2014/02, the EBA held that the BNB breached Union law by failing to determine the unavailability of deposits held by KTB in accordance with Article 1(3)(i) of Directive 94/19 and by suspending the fulfilment of all the obligations of KTB, with the consequence of preventing depositors from accessing the guaranteed deposits through the system provided for by that directive.
18According to recital 27 of that recommendation, although there was no express act determining the unavailability of KTB’s deposits, within the meaning of that provision, such a determination was inherent in the BNB’s decision of 20 June 2014 to place KTB under special supervision and to suspend its obligations.
19In point 1 of that recommendation, the EBA asked the BNB and the FGVB to take, in accordance with Article 4(3) TEU, all appropriate measures to ensure compliance with their obligations under Articles 1(3)(i), 10(2) and 10(3) of Directive 94/19, including by interpreting, as far as possible, national law in accordance with those provisions.
20Furthermore, in points 2 and 3 of that recommendation, the EBA asked the BNB to ensure that, until 21 October 2014, depositors have access to the guaranteed amounts of their deposits with KTB, either by removing or limiting the restriction on access to deposits resulting from the supervisory measures or by making the determination referred to in Article 1(3)(i) of Directive 94/19. In the event that the BNB did not take any of those measures within the time limit indicated, the EBA requested the FGVB to verify the claims of depositors with KTB and to return the guaranteed amounts of those deposits, in accordance with Article 10 of Directive 94/19, since the special supervisory measures taken in respect of KTB by the decision referred to in paragraph 18 of the present judgment amounted to a finding that those deposits were unavailable within the meaning of Article 1(3)(i) of Directive 94/19.
Bulgarian law
Law on bank-deposit insurance
21According to Article 1 thereof, the Zakon za garantirane na vlogovete v bankite (Law on bank-deposit insurance) (DV No 49, of 29 April 1998), which transposed Directives 94/19 and 2009/14 into the Bulgarian legal order, ‘regulates the establishment, tasks and activity of the [FGVB] as well as the procedure for the reimbursement of deposits up to the guaranteed level’.
22Under Article 4(1) and (2) of that law:1. The [FGVB] shall guarantee the full repayment of amounts corresponding to a person’s deposits with a bank, regardless of their number and amount, up to a maximum of 196000 [leva (BGN) (approximately EUR 100000)].2. The amount mentioned also includes the interest due on the date of the decision adopted by the [BNB] pursuant to Article 23(1).’
23Article 23 of that law is worded as follows:1. The [FGVB] shall cover the obligations of the bank in question up to the guaranteed amount where the [BNB] has withdrawn the banking licence issued to that commercial bank.…3. Within three working days from the date of the decision of the [BNB] pursuant to paragraph 1, the appointed receiver, liquidator or trustee shall submit to the Board of Directors of the [FGVB] information on the deposits made with the bank.…10. Depositors shall, in accordance with the applicable law, assert their claims in excess of the amount received from the [FGVB] against the assets of the bank.…’
Law on credit institutions:
24Article 36 of the Zakon za kreditnite institutsii (Law on credit institutions) (DV No 59, of 21 July 2006) provides:‘…2.The [BNB] shall withdraw the licence issued to a bank in the event of its insolvency where:(1) the bank has not paid a payable monetary obligation for more than seven working days, the non-payment is directly related to the financial situation of that bank and the [BNB] considers it improbable that the bank will pay payable monetary obligations within an appropriate time, or(2) its equity capital is in deficit.3. The [BNB] shall take the decision referred to in paragraph 2 within five working days from the declaration of insolvency.…7. With the withdrawal of the licence, the bank’s activity is terminated and it is compulsorily wound up.…’
25Article 79(8) of that law provides:‘The [BNB], its bodies and agents shall not be liable for harm sustained in the performance of their duties of supervision, unless they have acted intentionally.’
26Article 115 of the Law on credit institutions reads as follows:1. For the purposes of restructuring a bank exposed to a risk of insolvency, the [BNB] may place that bank under special supervision.2.A bank shall be regarded as exposed to a risk of insolvency if:…(2) the [BNB] considers that the liquid assets of the bank will not be sufficient for the bank to perform its obligations on the day they become payable; or(3) the bank has not paid one or several obligations payable to its creditors.…’
27Article 116 of that law provides:1. In the cases referred to in Article 115(1), the [BNB] shall place the bank in question under special supervision …2.In the cases referred to in paragraph 1, the [BNB] may:(1) lower the rate of interest on the obligations of the bank to their average market value;(2) suspend in full or in part the performance of all obligations or certain obligations of that bank for a specified period;(3) restrict its activities in full or in part;…’
28Article 119(4) and (5) of that law provides:4. In the cases referred to in Article 116(2)(2) and for the period during which the [BNB] has exercised this power, the bank shall be deemed not to be in default of performance of the pecuniary obligations whose performance has been suspended.5. In the cases referred to in Article 116(2)(2), the bank shall not be financially liable for the non-performance of obligations the performance of which has been suspended following special supervision. During special supervision there shall be no late-payment interest or liquidated damages fixed in advance for the non-performance of the monetary obligations of a bank the performance of which has been suspended, whereas standard interest on such obligations shall be payable and paid after the bank is no longer under special supervision.’
Law on bank insolvency
29According to Article 94(1) of the Zakon za bankovata nesastoyatelnost (Law on bank insolvency) (DV No 92, of 27 September 2002):‘When the assets are divided, the claims are paid in the following order:…(4) … claims of depositors that are not covered by the deposit-guarantee scheme;…’
Law on liability of the State and of municipalities for damage
30Article 1 of the Zakon za otgovornostta na darzhavata i obshtinite za vredi (Law on liability of the State and of municipalities for damage) (DV No 60, of 5 August 1988) provides:1. The State and the municipalities shall be liable for damage sustained by citizens and legal persons following illegal acts, actions or failure to act by their bodies and employees within the scope or at the time of administrative activity.2. Actions brought under paragraph 1 shall be heard in accordance with the procedure laid down in the Administrativnoprotsesualen kodeks [(Code of Administrative Procedure)] …’
31Article 4 of that law provides:‘The State and municipalities are obliged to compensate all material and moral damage that is a direct and immediate consequence of the harmful event, regardless of whether that damage was caused by the fault of the employee.’
32Article 8(3) of that law provides:‘Where a law or decree provides for a specific form of compensation, this Law shall not apply.’
The APK
33Under Article 204(1) of the Law on Administrative Procedure (DV No 30, of 11 April 2006; ‘the APK’):‘An action [for compensation] may be lodged after the administrative act has been annulled in the applicable manner.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
34During 2008, 2010 and 2011, BT concluded three contracts with KTB concerning unlimited deposits in euros and leva at preferential conditions. The amounts deposited were guaranteed in their entirety by the FGVB up to BGN 196000 (approximately EUR 100000).
35By letters of 20 June 2014, KTB informed the BNB that it was suspending payments to its customers due to a lack of liquidity caused by a massive withdrawal of the deposits it held. By a decision of the same day, supplemented by a decision of 22 June 2014, both adopted on the basis of the Law on credit institutions, the BNB placed KTB under special supervision for a period of three months due to a risk of insolvency, appointed receivers, suspended the execution of all KTB’s commitments and prohibited KTB from carrying on all activities covered by its banking licence. By a press release of 22 June 2014, the BNB stated that the aim of those decisions was to preserve the country’s financial stability.
36As is apparent from the reference for a preliminary ruling, the date of 20 June 2014 was chosen by the Sofiyski apelativen sad (Court of Appeal, Sofia, Bulgaria) as the start date of KTB’s insolvency, since, on that date, KTB’s own funds corresponded to a negative amount, within the meaning of Article 36(2)(2) of the Law on credit institutions.
37By decision of 30 June 2014, the BNB, on the basis of that law, reduced, with effect from 1 July 2014, the interest rates applied to deposits at KTB, so that they correspond to the average market rate, and adopted a standard-interest-rate scale. In accordance with that scale, interest on BT deposits was calculated as contractual interest for the period until 6 November 2014.
38By decision of 16 September 2014, the BNB extended the special surveillance measures until 20 November 2014, in view of the persistence of the reasons which initially justified the adoption of the decisions of 20 and 22 June 2014.
39On 25 September 2014, the Commission sent a letter of formal notice to the Minister of Finance (Bulgaria) and the BNB on the basis of Article 258 TFEU, due to the incorrect transposition of Articles 1(3) and 10(1) of Directive 94/19, as well as the failure to respect the principle of free movement of capital provided for in Article 63 TFEU. In a press release of the same day, the Commission announced that it was initiating infringement proceedings. Those proceedings were closed on 10 December 2015.
40Following Recommendation EBA/REC/2014/02, the BNB, by decision of 6 November 2014, withdrew the authorisation to increase KTB’s equity capital by means of funds provided under a loan agreement, on the ground that, as KTB had financed the lender, those funds were provided by itself. In addition, by decision of the same day, the BNB withdrew KTB’s banking licence on the basis of Article 36(2)(2) of the Law on credit institutions.
41Pursuant to that decision, on 4 December 2014, BT was repaid, through the FGVB, an amount of BGN 196000 (approximately EUR 100000) together with contractual and remuneration interest for the period from 30 June to 6 November 2014. The remaining credit balances amounting to BGN 44 070.90 (approximately EUR 22500) were included in the list of recognised claims, established in the context of the bankruptcy proceedings, in accordance with the order of precedence laid down in Article 94(1)(4) of the Law on bank insolvency.
42BT brought an action before the referring court, on the basis of Article 1(1) of the Law on the liability of the State and municipalities for damage and Article 204(1) of the APK, for compensation for all damage resulting, directly and immediately, from actions and omissions of the BNB committed in breach of EU law.
43By its first head of claim, BT claims that the BNB should be ordered to pay it the sum of BGN 8 627.96 (approximately EUR 4400), corresponding to the statutory interest on the guaranteed amount of the deposits held by KTB for the period from 30 June to 4 December 2014. In support of that claim, BT submits that the BNB, as the competent authority, should have found, within the period prescribed in Article 1(3)(i) of Directive 94/19, that those deposits had become unavailable within the meaning of Article 10(1) of that directive. The BNB’s failure to make such a finding had the effect of delaying until 4 December 2014 the repayment by the FGVB of the guaranteed deposits. The Commission’s press release, referred to in paragraph 39 of the present judgment, as well as recital 25 of Recommendation EBA/REC/2014/02, confirm the unlawfulness of the BNB’s failure to act.
44By its second head of claim, BT asks the referring court to order the BNB to pay it the sum of BGN 44 070.90 (approximately EUR 22500), corresponding to the amount exceeding the ceiling of the guaranteed amount of the deposits. In support of that request, BT submits, inter alia, that the special supervisory measures taken by the BNB in respect of KTB were unjustified and disproportionate to the situation of that bank on 20 June 2014. Those measures also allegedly disregarded Articles 63 to 65 TFEU and did not aim at the reorganisation of the bank, which only needed liquidity support. In the alternative, the damage referred to in the second head of claim should be compensated on the basis of the liability of the BNB for unlawful failure to act, consisting in the exercise of defective supervision, which aggravated the situation of KTB and which, moreover, was established by the Smetna palata (Court of Auditors, Bulgaria) in a report concerning the period from 1 January 2012 to 31 December 2014.
45As regards the first head of claim, the referring court considers it essential to determine the rules of liability which are to be applied in the present case. In that context, it asks, in particular, whether the depositor’s right to compensation, referred to in Article 7(6) of Directive 94/19, covers all damage resulting from the failure to repay the deposits within the prescribed time limits, including that resulting from inadequate supervision vis-à-vis the credit institution which holds the deposits, or whether that concept refers only to the right to repayment of the guaranteed amounts of the deposits, under Article 7(1a) of that directive.
46In those circumstances, the Administrativen sad Sofia-grad (Administrative Court of the City of Sofia, Bulgaria) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Does it follow from the principles of EU law of equivalence and effectiveness that a national court is obliged to regard, of its own motion, an action as having been brought on the ground of a breach of an obligation arising from Article 4(3) of the Treaty on European Union (TEU) by a Member State if the action relates to the non-contractual liability of the Member State for losses arising from an infringement of EU law that were allegedly caused by an authority of a Member State, and– Article 4(3) TEU was not expressly specified as a legal basis in the application, but it is clear from the grounds for the action that the loss is asserted on the ground of an infringement of provisions of EU law;– the claim for damages was based on a national provision regarding State liability for losses that arise in the performance of administrative activity, and that liability is strict and was incurred under the following conditions: unlawfulness of a legal act, act or omission of an authority or official in the course of or in connection with the performance of administrative activity; material or non-material loss incurred; direct and immediate causal link between the loss and the unlawful conduct of the authority;– under the law of the Member State, the court must determine, of its own motion, the legal basis for State liability for the activity of the judicial authorities on the basis of the circumstances on which the action is based?(2) Does it follow from recital 27 of Regulation [No 1093/2010] that, under circumstances such as those of the main proceedings, the recommendation issued on the basis of Article 17(3) of the regulation, in which an infringement of EU law by the central bank of a Member State in connection with the deadlines for paying out guaranteed deposits to the depositors in the respective credit institution has been established:– confers on the depositors at that credit institution the right to invoke the recommendation before a national court in order to substantiate an action for damages on the ground of that infringement of EU law, if account is taken of the [EBA]’s express power to establish infringements of EU law, and if it is considered that the depositors are not, and cannot be, the addressees of the recommendation and the latter does not establish any direct legal consequences for them;– is valid, having regard to the requirement that the infringed provision must provide for clear and unconditional obligations, if consideration is given to the fact that point (i) of Article 1(3) of Directive [94/19], if it is interpreted in conjunction with recitals 12 and 13 of that directive, does not contain all the elements required to establish a clear and unconditional obligation for the Member States and does not confer direct rights on depositors, and taking account of the fact that that directive provides for only minimum harmonisation that does not cover the indications by means of which unavailable deposits are determined, and that the recommendation has not been substantiated by other clear and unconditional provisions of EU law in relation to those indications, in particular the assessment of the lack of liquidity and the current lack of prospects of payout; an existing obligation to order early intervention measures and to maintain the business activity of the credit institution;– in view of the subject matter, the deposit guarantee, and the power of the [EBA] to issue recommendations on the deposit guarantee scheme pursuant to Article 26(2) of Regulation [No 1093/2010], is valid in relation to the national central bank, which has no connection with the national deposit guarantee scheme and is not a competent authority pursuant to point [(iii)] of Article 4(2) of that regulation?(3) Having regard also to the current state of the EU law relevant to the main proceedings, does it follow from the judgments of the Court of Justice of the European Union of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606, paragraphs 38, 39, 43 and 49 to 51), of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 42 and 51), of 15 June 2000, Dorsch Consult v Council and Commission (C‑237/98 P, EU:C:2000:321, paragraph 19), and of 2 December 1971, Zuckerfabrik Schöppenstedt v Council (5/71, EU:C:1971:116 paragraph 11) that:(a) the provisions of Directive 94/19, particularly Article 7(6), confer on depositors the right to assert claims for compensation against a Member State for defective supervision regarding the credit institution that administers their deposits, and are those rights restricted to the guaranteed amount of the deposits or is the term “rights to compensation” in that provision to be interpreted broadly?(b) the supervisory measures adopted by the central bank of a Member State to reorganise a credit institution, such as those in the main proceedings, including the suspension of payments, which are provided for, in particular, in the seventh indent of Article 2 of Directive [2001/24], constitute an unjustified and unreasonable infringement of the depositors’ right to property that incurs liability for losses arising from an infringement of EU law if, having regard to Article 116(5) of the Law on credit institutions and Article 4(2)(1) and Article 94(1)(4) of the Law on bank insolvency, the law of the respective Member State provides that contractual interest is calculated for the duration of the measures and the claims that exceed the guaranteed amount of the deposits can be satisfied in general insolvency proceedings, and provides that interest can be paid?(c) the requirements provided for in the national law of a Member State for non-contractual liability for losses arising from an act or omission in connection with the exercise by a Member State’s central bank of the supervisory powers covered by the scope of application of Article 65(1)(b) TFEU must not run counter to the requirements and principles of that liability that apply under EU law, specifically: the principle according to which actions for damages are independent of actions for annulment and the established illegality of a requirement under national law that a legal act or an omission on the basis of which compensation is sought must be annulled beforehand; the illegality of a requirement under national law regarding the culpability of authorities or officials for whose conduct compensation is sought; the requirement in respect of actions for damages to compensate for material harm whereby the plaintiff must have suffered actual and certain damage at the time the action was brought?(d) on the basis of the principle of EU law according to which actions for damages are independent of actions for annulment, the requirement that the relevant conduct of the authority be unlawful must be met, which is equivalent to the requirement under the national law of the Member State according to which the legal act or the omission on the basis of which compensation is sought, namely the measures to reorganise a credit institution, must be annulled, if consideration is given to the circumstances of the main proceedings and it is considered that:– these measures are not directed at the applicant, which is a depositor at a credit institution, and that it is not entitled under national law and in accordance with the national case-law to apply for the annulment of the individual decisions by means of which these measures were ordered, and that those decisions have become final;– EU law, specifically Directive 2001/24 in this area, does not impose an express obligation on the Member States to provide for the possibility of challenging the supervisory measures for the benefit of all creditors in order to establish the validity of the measures;– the law of a Member State does not provide for non-contractual liability for losses incurred due to lawful conduct on the part of authorities or officials?(e) In the event of an interpretation to the effect that, under the circumstances of the main proceedings, the requirement that the respective conduct of the authority be unlawful is not applicable to actions of depositors at a credit institution for compensation due to acts and omissions of the central bank of a Member State and, in particular, for the payment of interest for guaranteed deposits not having been paid out within the deadline and for the payment of deposits exceeding the guaranteed amount, which are brought to seek compensation for an infringement of Articles 63 to 65 and 120 TFEU, Article 3 TEU and Article 17 of the [Charter], are the requirements established by the Court of Justice of the European Union for non-contractual liability applicable to losses:– that arose due to lawful conduct on the part of an authority, specifically the three cumulative requirements, namely the existence of actual loss, a causal link between that loss and the act concerned, and the abnormal and special nature of the loss, particularly in the case of actions for the payment of interest for guaranteed deposits not being paid out within the deadline, or– in the domain of economic policy, particularly the requirement “only if there has been a sufficiently serious breach of a superior rule of law for the protection of individuals”, particularly in actions of depositors for the payment of deposits exceeding the guaranteed amount, which are asserted as a loss and to which the procedure provided for by national law is applicable, if account is taken of the wide discretion enjoyed by the Member States in connection with Article 65(1)(b) TFEU and the measures under Directive 2001/24 and if the circumstances pertaining to the credit institution and the person seeking compensation relate to only one Member State but the same provisions and the constitutional principle of equality before the law apply to all depositors?(4) Does it follow from the interpretation of Article 10(1) in conjunction with point (i) of Article 1(3) and Article 7(6) of Directive 94/19 and the legal considerations in the judgment of the Court of Justice of the European Union of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraphs 82 to 84), that the scope of application of the provisions of the directive cover depositors– whose deposits were not repayable on the basis of contracts and statutory provisions during the period running from the suspension of payments of the credit institution to the withdrawal of its authorisation for banking business, and the respective depositor has not expressed that he or she seeks repayment,– who have agreed to a clause that provides for the guaranteed amount of the deposits to be paid out in accordance with the procedure governed in the law of a Member State, and specifically after the withdrawal of the authorisation of that credit institution that manages the deposits, and that requirement has been met, and– the aforementioned clause of the deposit contract has the force of law between the contracting parties under the law of the Member States?Does it follow from the provisions of that directive or from other provisions of EU law that the national court may not take such a clause in the deposit contract into consideration and may not examine the action of a depositor for the payment of interest due to failure to pay out the guaranteed amount of deposits within the deadline pursuant to that contract on the basis of the requirements for non-contractual liability for loss arising from an infringement of EU law and on the basis of Article 7(6) of Directive 94/19?’
Procedure before the Court
47By decision of the President of the Court of 18 September 2018, the present case was stayed pending delivery of the judgment to be delivered in Case C‑571/16. Following the delivery of the judgment of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807), the Court asked the referring court whether it intended to maintain the present reference for a preliminary ruling.
48By order of 9 November 2018, the referring court informed the Court that it was maintaining its reference for a preliminary ruling, as the judgment of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807), had not, in its view, answered all the questions raised in the present case.
Consideration of the questions referred
Question 3(a)
49By its question 3(a), which should be examined in the first place, the referring court seeks, in essence, to ascertain whether Article 7(6) of Directive 94/19 must be interpreted as meaning that the depositor’s right to compensation which it provides for covers only the repayment, by the deposit-guarantee scheme, of deposits which are unavailable to that depositor, up to the amount laid down in Article 7(1a) of that directive, or if Article 7(6) of that directive also establishes, for the benefit of that depositor, a right to compensation for damage caused by the late repayment of the guaranteed amount of all his or her deposits or by inadequate supervision by the competent national authorities of the credit institution whose deposits have become unavailable.
50It should be noted at the outset that the wording of Article 7(6) of Directive 94/19, which requires the Member States to ensure that the ‘depositor’s rights to compensation’ may be the subject of an action by the depositor against the deposit-guarantee scheme, does not of itself make it possible to give an answer to the referring court’s question, so that it is also necessary to take account of the context of that provision and the objectives pursued by that directive.
51Directive 94/19 aims to establish within the Union protection for depositors in the event of unavailability of deposits made with a credit institution which is a member of a deposit-guarantee scheme (judgment of 12 October 2004, Paul and Others, C‑222/02, EU:C:2004:606, paragraph 26). At the same time, its purpose is to ensure the stability of the banking system, by avoiding the phenomenon of massive withdrawal of deposits not only from a credit institution in difficulty but also from healthy institutions following a loss of public confidence in the soundness of that system (judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 56 and the case-law cited). Directive 94/19, however, as can be seen in particular from its eighth recital, merely provides for a minimum level of harmonisation in matters relating to deposit guarantees (see, to that effect, judgment of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 82).
52In that context, Article 3 of Directive 94/19 requires Member States to ensure the establishment and official recognition within their territories of one or more deposit-guarantee schemes and provides for the obligation of the competent authorities which have granted a licence to credit institutions to ensure, in cooperation with the deposit-guarantee scheme, that the credit institutions fulfil their obligations as members of that scheme. The aim is to assure depositors that the credit institution in which they make their deposits belongs to a deposit-guarantee scheme, so that their right to be compensated in the event of unavailability of those deposits is safeguarded, in accordance with the rules laid down in particular in Article 7 of that directive (see, to that effect, judgment of 12 October 2004, Paul and Others, C‑222/02, EU:C:2004:606, points 27 to 29).
53In such a case, in accordance with Article 7(1a) of Directive 94/19, deposit-guarantee schemes must ensure a minimum level of cover of EUR 100000 for each depositor, provided that the deposits in question are neither excluded from the guarantee, in accordance with Article 2 of that directive, nor excluded or granted a lower level of guarantee in the Member State concerned, in accordance with Article 7(2) of that directive.
54Furthermore, in accordance with Article 10(1) of Directive 94/19, deposit-guarantee schemes must be able to pay duly verified claims of depositors, in respect of unavailable deposits, within 20 working days from the date on which the competent authorities made the determination of unavailability referred to in Article 1(3) of that directive.
55It thus follows from the objectives pursued by Directive 94/19 and the context in which Article 7(6) of that directive is set out that the ‘rights to compensation’ provided for in that provision, the amount of which is fixed in Article 7(1a), and the detailed rules specified in Article 10(1), of that directive, only cover the repayment, by the deposit-guarantee scheme, of duly verified claims of depositors where the competent authorities have established, in accordance with Article 1(3)(i) of Directive 94/19, the unavailability of deposits held by the credit institution concerned.
56That strict interpretation of Article 7(6) of Directive 94/19 is corroborated by the twenty-fourth recital of that directive, which states that that directive may not result in the Member States’ or their competent authorities’ being made liable in respect of depositors if they have ensured that one or more schemes guaranteeing deposits or credit institutions themselves and ensuring the compensation or protection of depositors under the conditions prescribed in that directive have been introduced and officially recognised.
57In that context, the Court has already specified in its judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606, paragraphs 50 and 51), that, since Directive 94/19 provides for compensation to depositors in the event of the unavailability of their deposits, it does not grant depositors rights which could give rise to State liability under Union law in the event of the unavailability of their deposits caused by inadequate supervision by the competent national authorities.
58The fact, pointed out by the applicant in the main proceedings, that the credit institution at issue in the case giving rise to the judgment cited in the preceding paragraph did not participate in the deposit-guarantee scheme, unlike the credit institution at issue in the present case, cannot justify a different assessment.
59Moreover, as the Court has already noted, it cannot be excluded that the practical effectiveness of the deposit guarantee imposed by Directive 94/19 would be compromised if risks which are not directly related to the objective of that system, such as those linked to a lack of supervision of credit institutions by the competent authorities, were to be borne by the national deposit-guarantee schemes. The higher the risks to be guaranteed, the more diluted the deposit guarantee becomes and the less likely the deposit-guarantee scheme is, from the same resources, to contribute to the achievement of the dual objective pursued by that directive, as recalled in paragraph 51 of the present judgment (see, to that effect, judgment of 21 December 2016, Vervloet and Others, C‑76/15, EU:C:2016:975, paragraph 84).
60In the light of the foregoing considerations, the answer to question 3(a) is that Article 7(6) of Directive 94/19 must be interpreted as meaning that the depositor’s right to compensation which it provides for covers only the repayment, by the deposit-guarantee scheme, of deposits which are unavailable to that depositor, up to the amount laid down in Article 7(1a) of that directive, following a finding of unavailability, by the competent national authority, of deposits held by the credit institution concerned, in accordance with Article 1(3)(i) of that directive, so that Article 7(6) of that directive cannot establish, to the benefit of that depositor, a right to compensation for damage caused by the late repayment of the guaranteed amount of all his or her deposits or by inadequate supervision by the competent national authorities of the credit institution whose deposits have become unavailable.
The fourth question
61By its fourth question, the referring court seeks, in essence, to ascertain whether the combined provisions of Article 1(3)(i), Article 7(6) and Article 10(1) of Directive 94/19 must be interpreted as precluding national legislation or a contractual clause, under which a deposit made with a credit institution whose payments have been suspended becomes due only following the withdrawal, by the competent authority, of the banking licence issued to that institution and on condition that the depositor has expressly requested the repayment of that deposit. If the answer is in the affirmative, the referring court asks whether those provisions or other provisions of Union law require it to set aside that national legislation or contractual clause, for the purposes of deciding an action for damages allegedly caused by the repayment of the guaranteed amount of such a deposit outside the period laid down by that directive.
62It should be recalled, in the first place, that under Article 1(3)(i) of Directive 94/19, the concept of ‘unavailable deposit’, within the meaning of that directive, refers to ‘a deposit that is due and payable but has not been paid by a credit institution under the legal and contractual conditions applicable thereto’, where the competent authorities have ascertained, no later than five working days after establishing for the first time that that credit institution has not repaid deposits due and payable, that, for reasons directly related to its financial circumstances, ‘the credit institution concerned appears to be unable … to repay the deposit and to have no current prospect of being able to do so’.
63As is clear from the wording of the first subparagraph of Article 1(3)(i) of Directive 94/19, the necessary and sufficient condition for establishing the unavailability of a deposit which is due and payable is that, in the view of the competent authority, for the time being and for reasons directly related to its financial situation, a credit institution does not appear to be in a position to repay the deposits and there is no current prospect that it will be able to do so (judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 49). Moreover, the maximum period of five days allowed to the competent authority to fulfil the unconditional and sufficiently precise obligation to make such a finding is, under the very terms of the second subparagraph of Article 1(3)(i) of that directive, a mandatory time limit, without any derogation from it being provided for in any other provision of that directive (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 60 and 100). It thus follows from the wording of Article 1(3)(i) of Directive 94/19 that it lays down an unconditional and sufficiently precise obligation conferring rights on individuals and therefore provides for a rule of direct effect (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 98 to 104).
64In the second place, in the system of Directive 94/19, first, the finding of unavailability of a credit institution’s deposits, which triggers the procedure leading to intervention by the national deposit-guarantee schemes, determines the repayment of the guaranteed amount of those deposits by those schemes, in accordance with Article 7 of that directive. Secondly, under Article 10(1) of the directive, that finding is the starting point for the period within which that repayment must be made, namely 20 working days (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 72).
65Since that finding is linked to the objective financial position of the credit institution and generally relates to all deposits held by the credit institution and not to each individual deposit held by the institution, it is sufficient that it is established that the credit institution has not repaid certain deposits and that the conditions set out in Article 1(3)(i) of Directive 94/19 are met for the unavailability of all the deposits held by that institution to be established (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 82), including those which, at the date of that finding, were not due and payable, in accordance with the applicable legal and contractual conditions, and which it was therefore not for the credit institution to repay.
66As the Advocate General pointed out in point 71 of his Opinion, even if a deposit which is not due or payable, in accordance with the legal and contractual conditions applicable to it, cannot be taken into account by the competent authority in determining the unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19, such a deposit must, by contrast, be classified as a repayable deposit, under that provision, from the time when the competent authority has established the unavailability of the deposits held by the credit institution concerned.
67That interpretation is corroborated by the dual objective pursued by Directive 94/19, as recalled in paragraph 51 of the present judgment. As the Advocate General pointed out in point 58 of his Opinion, if the deposits which are not due and payable, at the time when the competent authority finds, in accordance with Article 1(3)(i) of that directive, that certain deposits held by a credit institution are unavailable, were not covered by the deposit guarantee provided for by that directive, the depositors concerned would risk not being able to recover their deposits and the stability of the banking system would be put to the test because of the loss of public confidence in the guarantee of their deposits.
68In those circumstances, it cannot be inferred from the fact that a deposit-guarantee scheme has repaid to a depositor amounts corresponding to deposits not yet due and payable, within the meaning of Article 1(3) of Directive 94/19, that that scheme has derogated from the obligation laid down in Article 10(1) of that directive.
69It follows that Article 1(3)(i) of Directive 94/19, read in conjunction with Articles 7(6) and 10(1) of that directive, must be interpreted as meaning that the holder of a deposit which is neither due nor payable, under the legal and contractual conditions applicable to him or her, may assert his or her right to repayment of the guaranteed amount relating to that deposit once the competent authority has established the unavailability of the deposits held by the credit institution concerned.
70In the third place, since it is exclusively determined by the conditions set out in Article 1(3)(i) of Directive 94/19, recalled in paragraph 62 of the present judgment, the finding of the unavailability of deposits held by a credit institution cannot depend on the withdrawal of the banking licence of the credit institution concerned, nor be made subject to the condition that the holder of such a deposit has previously made a request to the credit institution concerned to withdraw it, which has remained unsuccessful (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 69 and 87 and points 1 and 3 of the operative part). Those provisions of Directive 94/19 must therefore be interpreted as precluding national legislation imposing such requirements or authorising contractual clauses to provide for them.
71In that context, it should be recalled that, in accordance with the Court’s settled case-law, in all cases where the provisions of a directive appear, from the point of view of their content, to be unconditional and sufficiently precise, individuals are entitled to rely on them before the national courts against the State, either where the State has failed to transpose the directive into national law within the prescribed period or where it has transposed it incorrectly. The unconditional and sufficiently precise provisions of a directive may be invoked by individuals not only against a Member State and all the organs of its administration, but also against bodies or entities which are distinct from individuals and must be assimilated to the State, either because they are legal persons governed by public law forming part of the State in the broad sense, or because they are subject to the authority or supervision of a public authority, or because they have been entrusted by such an authority with a task in the public interest and have been endowed with exorbitant powers for that purpose (see, to that effect, judgments of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraphs 32 to 34, and of 22 March 2018, Anisimovienė and Others, C‑688/15 and C‑109/16, EU:C:2018:209, paragraph 109).
72Furthermore, any national court, seised within the framework of its jurisdiction, is obliged to disapply, on its own authority, any national provision contrary to a provision of Union law which has direct effect in the dispute before it, without it being necessary for that court to request or await the prior setting aside of such a provision by legislative or other constitutional means (see, to that effect, judgments of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 35, and of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 160 and 161 and the case-law cited).
73Accordingly, since, as recalled in paragraph 63 of the present judgment, Article 1(3)(i) of Directive 94/19 is of direct effect, a national court hearing an action brought by the holder of a deposit which has become unavailable, within the meaning of that provision, for compensation for damage caused by the late repayment of the guaranteed amount of that deposit, must, in accordance with the principle of primacy of Union law, set aside a provision of national law which makes the repayment of that amount subject to the conditions mentioned in paragraph 70 of the present judgment.
74In the context of such an action, the national court may also not take account of a contractual clause which merely reflects a provision of national law incompatible with Article 1(3)(i) of Directive 94/19. As the Advocate General pointed out in point 69 of his Opinion, where that contractual clause incorporates the content of a provision of national law which is incompatible with Union law, the national court must extend to that clause the consequences arising from the incompatibility of that provision with Union law.
75In the light of the foregoing considerations, the answer to the fourth question is that the combined provisions of Article 1(3)(i), Article 7(6) and Article 10(1) of Directive 94/19 must be interpreted as precluding national legislation or a contractual clause according to which a deposit made with a credit institution whose payments have been suspended are to become due only following the withdrawal, by the competent authority, of the banking licence issued to that institution and on condition that the depositor has expressly requested the repayment of that deposit. In accordance with the principle of primacy of Union law, any national court hearing an action for damages allegedly caused by the repayment of the guaranteed amount of such a deposit outside the period laid down in Article 10(1) of that directive is required to set aside such national legislation or such a contractual clause for the purposes of deciding that action.
The second question
76By the first part of the second question, the referring court seeks, in essence, to ascertain whether Article 17(3) of Regulation No 1093/2010, read in the light of recital 27 thereof, must be interpreted as meaning that a recommendation of the EBA, adopted on the basis of that provision and finding an infringement of Article 1(3)(i) of Directive 94/19, such as Recommendation EBA/REC/2014/02, may be invoked by a depositor in support of a claim for damages caused by that infringement of EU law, even though such a depositor is not an addressee of that recommendation.
77By the second part of that question, the referring court asks whether Recommendation EBA/REC/2014/02 is valid, in that, first, it finds a breach of a provision of Union law which, according to that court, does not define a clear and unconditional obligation, for the purposes of recital 27 of that regulation, and, secondly, it is addressed to the BNB which, again according to the referring court, has no connection with the national deposit-guarantee scheme and is not a competent authority within the meaning of Article 4(2)(iii) of Regulation No 1093/2010.
The interpretation of Article 17(3) of Regulation No 1093/2010
78The first subparagraph of Article 17(3) of Regulation No 1093/2010 provides that the EBA may, no later than two months after the initiation of the investigation referred to in paragraph 2 thereof, address a recommendation to the competent authority concerned setting out the measures to be taken to comply with Union law. Such a recommendation is to be issued following an investigation initiated by the EBA where national authorities are alleged to have failed to apply or to have applied incorrectly or insufficiently Union law, in particular the acts referred to in Article 1(2) of that regulation, including Directive 94/19, in their supervisory practices.
79As the Advocate General noted in point 76 of his Opinion, a recommendation of the EBA based on Article 17(3) of Regulation No 1093/2010 falls within the category of acts of the Union provided for in the fifth paragraph of Article 288 TFEU, the latter provision conferring on the institutions empowered to adopt such acts a power to exhort and to persuade, distinct from the power to adopt acts having binding force (see, to that effect, judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 26).
80However, it is clear from the Court’s case-law that, even if recommendations are not intended to produce binding legal effects, national courts are obliged to take them into consideration with a view to resolving the disputes submitted to them, in particular when they are intended to supplement binding European Union provisions (see, to that effect, judgments of 13 December 1989, Grimaldi, C‑322/88, EU:C:1989:646, paragraph 18; of 11 September 2003, Altair Chimica, C‑207/01, EU:C:2003:451, paragraph 41; and of 15 September 2016, Koninklijke KPN and Others, C‑28/15, EU:C:2016:692, paragraph 41 and the case-law cited).
81In the light of the foregoing considerations, the answer to the first part of the second question referred for a preliminary ruling is that Article 17(3) of Regulation No 1093/2010, read in the light of recital 27 thereof, must be interpreted as meaning that a national court must take into consideration a recommendation of the EBA adopted on the basis of that provision, with a view to resolving the dispute before it, in particular in the context of an action seeking to establish the liability of a Member State for damage caused to an individual as a result of the non-application or incorrect or insufficient application of Union law giving rise to the investigation procedure which led to the adoption of that recommendation. Individuals harmed by the breach of Union law established by such a recommendation, even if they are not the addressees of the recommendation, must be able to rely on it as a basis for establishing, before the competent national courts, the liability of the Member State concerned for the breach of Union law in question.
The validity of Recommendation EBA/REC/2014/02
82First of all, it should be noted that, while Article 263 TFEU excludes the Court’s review of acts having the nature of a recommendation in the context of an action for annulment, it follows from Article 19(3)(b) TEU and the first paragraph of Article 267(b) TFEU that the Court has jurisdiction to give preliminary rulings on the interpretation and validity of acts of the institutions of the Union, without any exception (see, to that effect, judgments of 13 December 1989, Grimaldi, C‑322/88, EU:C:1989:646, paragraph 8; of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraph 71; of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 44; and of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 71 and the case-law cited).
83It follows that the Court has jurisdiction to give a preliminary ruling on the validity of Recommendation EBA/REC/2014/02, by which the EBA requested the BNB and the FGVB to take the measures necessary to comply with Directive 94/19, in particular to put an end to the infringement of Article 1(3)(i) thereof.
84According to the referring court, since, contrary to recital 27 of Regulation No 1093/2010, that provision does not establish clear and unconditional obligations on the part of the Member States and does not directly create rights on the part of depositors, it could not be considered, in Recommendation EBA/REC/2014/02, that that provision had been infringed.
85In that regard, it should be noted at the outset that Directive 94/19 is one of the Union acts referred to in Article 1(2) of Regulation No 1093/2010 and that, therefore, in accordance with Article 17(1) and the first paragraph of Article 17(2) of that regulation, the EBA may investigate the alleged non-application or incorrect or insufficient application of the provisions of that directive by a competent authority.
86Furthermore, as was noted in paragraph 63 of the present judgment, Article 1(3)(i) of Directive 94/19, in addition to being of direct effect and constituting a rule of law intended to confer rights enabling depositors to seek compensation for damage caused by the late repayment of their deposits, in breach of that provision, imposes an unconditional and sufficiently precise obligation on the competent authority, within the meaning of Article 4(2)(iii) of Regulation No 1093/2010.
87In those circumstances, as noted by the Advocate General in point 116 of his Opinion, the referring court’s doubts as to the validity of Recommendation EBA/REC/2014/02, in that Article 1(3)(i) of Directive 94/19 does not establish clear and unconditional obligations, are unfounded.
88It should be added that recital 27 of Regulation No 1093/2010, in so far as it states that the mechanism provided for in Article 17 of that regulation ‘should apply in areas where Union law defines clear and unconditional obligations’, cannot be understood as making the adoption of a recommendation on the basis of Article 17(3) of that regulation subject to the condition that the recommendation necessarily refers to a rule of Union law defining clear and unconditional obligations.
89Only Article 17(6) of Regulation No 1093/2010, as stated in recital 29 of that regulation, makes the adoption, by the EBA, of an individual decision with regard to a financial institution subject to the condition that that decision is based on a provision contained in an act referred to in Article 1(2) of that regulation which is ‘directly applicable to financial institutions’. By contrast, such a condition is not included either in Article 17(1) and (2) of that regulation, which concerns the opening of the investigation procedure, or in Article 17(3) of that regulation, which concerns the issuing of a recommendation by the EBA. Thus, limiting the exercise of the powers conferred on the EBA by Article 17(2) and (3) of Regulation No 1093/2010 to cases involving clear and unconditional provisions of Union law would amount to establishing an additional condition not provided for by those provisions.
90While the preamble to a Union act may explain the content of the provisions of that act and provides elements of interpretation which are likely to shed light on the intention of the author of that act, it has no binding legal value and cannot be relied upon to derogate from the provisions of the act itself or to interpret those provisions in a manner contrary to their wording (see, to that effect, judgment of 19 December 2019, Puppinck and Others v Commission, C‑418/18 P, EU:C:2019:1113, paragraphs 75 and 76 and the case-law cited).
91The referring court’s doubts as to the validity of Recommendation EBA/REC/2014/02 relate, moreover, to the fact that it was addressed to the FGVB and the BNB, whereas, according to that court, at the date of that recommendation, the BNB had no connection with the national deposit-guarantee scheme and was not a competent authority within the meaning of Article 4(2)(iii) of Regulation No 1093/2010.
92It follows from that provision that the concept of ‘competent authorities’, for the purposes of that regulation, covers, ‘with regard to deposit guarantee schemes, bodies which administer deposit-guarantee schemes pursuant to Directive 94/19 …, or, where the operation of the deposit-guarantee scheme is administered by a private company, the public authority supervising those schemes pursuant to that Directive’.
93Furthermore, that provision must be read in conjunction with Article 3(1) of Directive 94/19, which requires each Member State to ensure the establishment and official recognition within its territory of one or more deposit-guarantee schemes, as well as with Article 1(3)(i) of that directive, which leaves a margin of discretion to the Member States in order to designate the authority competent to establish the unavailability of deposits (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 99).
94As the Advocate General pointed out in point 107 of his Opinion, in the context of the case giving rise to the judgment of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807), it was established that the BNB was the competent authority for determining the unavailability of deposits in accordance with Article 1(3)(i) of Directive 94/19.
95Therefore, it is for the referring court to ascertain, in the light of the Bulgarian legislation applicable on 17 October 2014, the date on which the EBA sent Recommendation EBA/REC/2014/02 to the BNB, whether the BNB was the body responsible for the management or, as the case may be, the supervision of the national deposit-guarantee scheme in accordance with Directive 94/19 and, in particular, whether it was the competent authority for determining the unavailability of deposits pursuant to Article 1(3)(i) of that directive.
96To that end, it is incumbent upon it to verify, in particular, whether it is possible to interpret in conformity with that provision Article 36 of the Law on credit institutions, which gives the BNB the power compulsorily to withdraw the licence issued to a bank when it has not carried out its activities for more than seven working days, its monetary obligations having become payable, where that non-performance is directly linked to the financial situation of that bank and where the BNB deems it unlikely that the latter will pay those monetary obligations within an acceptable period of time, and that withdrawal decision is to be taken within five working days of such a finding.
97In any event, the failure to establish the unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19, is capable of constituting a sufficiently serious breach of Union law and of rendering a Member State liable for a breach of Union law (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 115).
98It is true that, in Recommendation EBA/REC/2014/02, the EBA considered that, in the absence of an explicit act establishing the unavailability of KTB’s deposits within the meaning of Article 1(3)(i) of Directive 94/19, the decision taken by the BNB to place KTB under special supervision and to suspend KTB’s obligations was tantamount to such a finding.
99However, as the Court has already held, the unavailability of deposits must be established by an explicit act of the competent national authority and cannot be inferred from other acts of the national authorities, such as the placing under special supervision of a bank whose deposits have become unavailable (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 73 and 77).
100It follows that the referring court cannot, for the purpose of deciding the dispute in the main proceedings, rely on the premiss, contrary to Article 1(3)(i) of Directive 94/19, as interpreted by the Court, that the decision of the BNB to place KTB under special supervision and to suspend its obligations can be equated with a finding that KTB’s deposits are unavailable.
101In the light of the foregoing considerations, the answer to the second part of the second question is that Recommendation EBA/REC/2014/02 is invalid, in so far as it equated the decision of the BNB to place KTB under special supervision and to suspend its obligations to a finding of unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19.
Question 3(b)
102By its question 3(b), the referring court seeks, in essence, to ascertain whether Article 2, seventh indent, of Directive 2001/24, read in the light of Article 17(1) and Article 52(1) of the Charter, must be interpreted as meaning that a measure suspending payments, as a supervisory measure applied by a national central bank for the reorganisation of a credit institution, constitutes an unjustified and disproportionate interference with the property rights of depositors with that credit institution which may give rise to a claim for compensation for damage caused by such a breach of Union law on the part of those depositors, even if contractual interest has been applied for the period covered by the measure and deposits exceeding the guaranteed amount may be recovered, together with interest, in the context of general bankruptcy proceedings under national law.
103In that regard, it should be noted that Directive 2001/24, as is apparent from recital 6 thereof, establishes a system of mutual recognition of the measures taken by each Member State to restore the viability of the credit institutions it has authorised, without aiming to harmonise national legislation in this area (see, to that effect, judgments of 24 October 2013, LBI, C‑85/12, EU:C:2013:697, paragraph 22, and of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 104).
104Moreover, contrary to what the BNB claims, Directive 2001/24 may be applicable to a situation that is purely internal to a Member State. As is clear from the very wording of Article 1(1), read in the light of recital 2, of that directive, it applies to credit institutions, in particular where they have branches in a Member State other than that in which their registered office is situated, as well as to those branches. Furthermore, even if Directive 2001/24 aims at specifically regulating a situation which may arise in the event of difficulties in a credit institution with branches in other Member States, there is no indication that the reorganisation measures provided for in that directive apply only to such a cross-border situation.
105In accordance with the seventh indent of Article 2 of Directive 2001/24, measures which, on the one hand, are intended to preserve or restore the financial situation of a credit institution and, on the other hand, are liable to affect the pre-existing rights of third parties, must be regarded as reorganisation measures within the meaning of that directive. Among those reorganisation measures must, in particular, be counted the measures suspending payments, provided, in particular, as is apparent from recital 6 and Article 3(1) of that directive, that they have been adopted by an administrative or judicial authority (see, to that effect, judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 110).
106Moreover, since such measures suspending payments, within the meaning of the seventh indent of Article 2 of Directive 2001/24, must be regarded as implementing Union law, within the meaning of Article 51(1) of the Charter, they must comply with the fundamental rights enshrined in the Charter, in particular the right to property guaranteed in Article 17(1) thereof (see, to that effect, judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 17 to 19, and of 13 June 2019, Moro, C‑646/17, EU:C:2019:489, paragraphs 66 and 67 and the case-law cited).
107However, the right to property guaranteed in Article 17(1) of the Charter is not an absolute prerogative and its exercise may entail limitations, provided that they, in accordance with Article 52(1) of the Charter, are provided for by law, respect the essential content of that right and that, in accordance with the principle of proportionality, they are necessary and effectively meet objectives of general interest recognised by the Union, or the need to protect the rights and freedoms of others (see, to that effect, judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 69 and 70 and the case-law cited).
108Since measures suspending payments, such as those at issue in the main proceedings, are designed to preserve or restore the financial situation of a credit institution, they must be regarded as effectively meeting an objective of general interest recognised by the Union. Financial services play a central role in the EU economy, with banks and credit institutions being an essential source of financing for businesses operating in the various markets. In addition, banks are often interconnected and many of them operate internationally. For that reason, the failure of one or more banks risks spreading rapidly to other banks either in the Member State concerned or in other Member States. That is liable, in turn, to produce negative spill-over effects in other sectors of the economy (see, to that effect, judgments of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 50, and of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 72).
109It is for the referring court to determine, having regard to all the circumstances which characterise the main proceedings, whether the supervisory measures at issue constitute, in the light of the objectives pursued, a disproportionate and intolerable interference with the very substance of the applicant’s right to property, in particular if, in view of the imminent risk of financial loss to which the depositors with KTB would have been exposed in the event of KTB’s bankruptcy, other less restrictive measures, such as a partial suspension of payments or a partial limitation of KTB’s activities, would have achieved the same results.
110It is apparent from the request for a preliminary ruling that the supervisory measures at issue in the main proceedings were limited in time and that, during that period, in accordance with national law, contractual interest accrued on the suspended pecuniary commitments. Moreover, in addition to the fact that the guaranteed amount of the deposits with KTB was repaid to the applicant in the main proceedings through the FGVB, the amount of its deposits exceeding the guaranteed amount remains recoverable in the context of the bankruptcy proceedings instituted in respect of that bank.
111In light of the foregoing considerations, the answer to question 3(b) is that Article 2, seventh indent, of Directive 2001/24, read in the light of Article 17(1) and Article 52(1) of the Charter, must be interpreted as meaning that a measure suspending payments applied by a national central bank to a credit institution as a reorganisation measure intended to preserve or restore the financial situation of that institution constitutes an unjustified and disproportionate interference with the exercise of the right of ownership of depositors with that institution if it does not respect the essential content of that right and if, having regard to the imminent risk of financial loss to which the depositors would have been exposed in the event of its bankruptcy, other less restrictive measures would have made it possible to achieve the same results, which is for the national court to verify.
Questions 3(c) to (e)
112By questions 3(c), (d) and (e), which should be considered together, the national court asks, in essence, whether the principles laid down by the Court in relation to the liability of a Member State for damage caused to individuals as a result of an infringement of Union law must be interpreted as precluding national legislation under which the right of individuals to obtain compensation for damage caused by the national authority concerned is subject, first, to the prior annulment of the act or omission causing the damage, secondly, to the intentional nature of the damage and, thirdly, to the obligation for the individual to prove the existence of real and certain material damage at the time of bringing the action for compensation.
113First of all, it should be recalled that, according to settled case-law, the principle of State liability for damage caused to individuals by infringements of Union law for which it is responsible is inherent in the system of Treaties on which the Union is founded. Individuals who have suffered damage have a right to compensation if three conditions are met, namely that the rule of Union law infringed is intended to confer rights on them, that the infringement of that rule is sufficiently serious and that there is a direct causal link between that infringement and the damage suffered by those individuals (judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 92 and 94 and the case-law cited).
114While Union law does not preclude the State liability for infringements of Union law from being incurred under less restrictive conditions on the basis of national law, it does, however, preclude national law from imposing additional conditions in that regard (judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 120 and 121 and the case-law cited).
115As noted in paragraph 63 of the present judgment, Article 1(3)(i) of Directive 94/19 constitutes a rule of law intended to confer rights on individuals and enabling depositors to bring an action for compensation for damage caused by the late repayment of deposits, while leaving it to the national court hearing such an action to verify, first of all, whether that is the case, whether the failure to establish the unavailability of deposits within the five-working-day period provided for in that provision, despite the fact that the conditions clearly set out in that provision were met, constitutes, in the circumstances at issue, a sufficiently serious breach within the meaning of Union law, and, secondly, whether there is a direct causal link between that breach and the damage suffered by the depositor (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 117).
116It is necessary, moreover, to note that, in accordance with the principle of procedural autonomy, in the absence of Union law on the subject, it is for the domestic legal order of each Member State to designate the courts having jurisdiction and to lay down the detailed rules governing legal proceedings designed to safeguard the rights which individuals derive from Union law. Thus, once the conditions for State liability have been met, which is to be determined by the national courts, it is within the framework of national liability law that it is incumbent on the State to make good the consequences of the damage caused to the individual by the breach of Union law in question, provided that the conditions laid down by the national laws applicable for that purpose are not less favourable than those applicable to similar claims based on a breach of national law (principle of equivalence) and are not so adjusted as to make it impossible or excessively difficult in practice to obtain reparation (principle of effectiveness) (judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 122 and 123 and the case-law cited). Compliance with those two principles must be examined in the light of the role of the rules concerned in the entire procedure, the conduct of the procedure and the particularities of those rules before the various national bodies (see, in this sense, judgment of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 31 and the case-law cited).
117With regard, in particular, to the principle of effectiveness, whenever the question arises as to whether a national procedural provision makes it impossible or excessively difficult to exercise the rights conferred on individuals by the legal order of the Union, account must be taken, where appropriate, of the principles underlying the national court system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of proceedings (see, to that effect, judgments of 14 December 1995, Peterbroeck, C‑312/93, EU:C:1995:437, paragraph 14; of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 19; of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 53; and of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 42).
118The questions referred must be examined in the light of those considerations.
119Concerning the first procedural requirement under national law, according to which the bringing of an action by an individual for damages allegedly caused by a breach of Union law is subject to the prior annulment of the act or omission causing the damage, the national court states that such a condition cannot be fulfilled in the main proceedings, since the supervisory and reorganisation measures taken by the BNB in respect of KTB were not aimed at private individuals, in particular depositors with that credit institution, and that, therefore, those individuals are not entitled to bring an action for annulment against such measures.
120Such a condition may make it excessively difficult to obtain compensation for the damage caused by the infringement of Union law where, in practice, the annulment of the act or omission giving rise to that damage is excluded or very limited and, consequently, it is not reasonable to impose such a condition on the injured party (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 143, 146 and 147).
121As regards the second condition laid down by national law, namely that the conduct of the public authority or official causing the damage must be intentional, Union law precludes national legislation which makes the right of individuals to obtain compensation subject to the additional condition, going beyond a sufficiently serious breach of Union law based on the intentional nature of the conduct, such as that arising from Article 79(8) of the Law on credit institutions (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraphs 126 to 128 and point 5, second indent, of the operative part).
122As regards the third condition laid down by national law, requiring the applicant to prove that it suffered real and certain damage at the time when the action for damages was brought, it should be borne in mind that the obligation for injured individuals to establish to the requisite legal standard the extent of the damage suffered as a result of a breach of Union law constitutes, in principle, a condition for the State’s liability for such damage.
123It is apparent from the request for a preliminary ruling that the applicant in the main proceedings has clearly quantified the damage which it alleges to have suffered as a result of the infringements of Union law which it attributes to the BNB. Therefore, in the context of its first head of claim, the applicant assessed its loss by way of statutory interest on the guaranteed amount of its deposits with KTB at BGN 8 627.96 (approximately EUR 4400) for the period between the date on which that bank became insolvent and the date on which the guaranteed amounts of its deposits were repaid to it. In the context of its second head of claim, the applicant in the main proceedings estimated at BGN 44 070.90 (approximately EUR 22500) its loss in respect of the amount of its deposits exceeding the ceiling of the guaranteed amount.
124The referring court considers that the second head of claim brought by the applicant in the main proceedings relates not to actual and certain damage but to damage which has not yet materialised, since the bankruptcy proceedings, in the context of which the applicant in the main proceedings could be reimbursed the amounts exceeding the guaranteed amount of its deposits, have not yet been closed. However, although such a circumstance must be taken into consideration in the examination of the merits of the action in the main proceedings, it is irrelevant as regards the admissibility of that action.
125In that regard, it should be noted that, since compensation for damage caused to individuals by infringements of Union law must be commensurate with the loss or damage sustained so as to ensure the effective protection of their rights (judgments of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 82, and of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe, C‑620/17, EU:C:2019:630, paragraph 46), the national courts are entitled to ensure that the protection of rights guaranteed by the legal order of the Union does not result in unjust enrichment of the persons concerned (see, to that effect, judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 94).
126Nevertheless, it should also be noted that the effective protection of the right to compensation for damage caused to individuals by infringements of Union law must make it possible to bring an action for damages based on imminent damage foreseeable with sufficient certainty, even if the damage cannot yet be precisely assessed (see, by analogy, judgment of 2 June 1976, Kampffmeyer and Others v EEC, 56/74 to 60/74, EU:C:1976:78, paragraph 6).
127In the light of the foregoing considerations, the answer to question 3(c) to (e) is that Union law, in particular the principle of liability of the Member States for damage caused to individuals as a result of a breach of Union law, and the principles of equivalence and effectiveness, must be interpreted as meaning that:– it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the prior annulment of the administrative act or omission which caused the damage, provided that such annulment, even if required in respect of similar claims based on a breach of national law, is not in practice precluded or very limited;– it precludes national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition that the damage caused by the national authority in question be intentional;– it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition of proving actual and certain damage at the time when the action is brought, provided that that condition is not less favourable than those applicable to similar claims based on a breach of national law and is not so designed as to make it impossible or excessively difficult, having regard to the particular features of specific cases, to exercise such a right.
The first question
128By its first question, the national court asks, in essence, whether the principles of equivalence and effectiveness must be interpreted as meaning that they require a court seised of an action for damages formally based on a provision of national law relating to State liability for damage resulting from an administrative activity, but in support of which pleas are raised alleging infringement of Union law as a result of such activity, to regard that action of its own motion as being based on a failure to fulfil the obligations arising, for the Member States, from Article 4(3) TEU.
129The referring court states, in that regard, that, in the context of an action for State liability resulting from judicial activity brought on the basis of the Grazhdanski protsesualen kodeks (Code of Civil Procedure), the competent court is required to classify such an action of its own motion, taking into account the circumstances on which it is based. By contrast, in the context of an action for damages brought on the basis of the APK, such as that at issue in the main proceedings, the competent court may not classify such an action of its own motion and, thus, where appropriate, apply Union law of its own motion.
130It should be recalled at the outset that litigants must have a judicial remedy enabling them to defend the rights guaranteed to them by Union law (see, to that effect, judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraphs 142 to 144), in particular the right to compensation which, where the conditions relating to State liability, referred to in paragraph 113 of the present judgment, are met, is directly based on Union law.
131As pointed out in paragraph 116 of the present judgment, in the absence of rules of Union law on the subject, the question of the legal classification of an action is, by virtue of the principle of procedural autonomy, a matter for the domestic law of each Member State, subject to compliance with the principles of equivalence and effectiveness.
132As regards, first, the principle of equivalence, it is irrelevant under national law that the court hearing an action brought under the APK, seeking to hold the State liable for damage resulting from an administrative activity, is not able to classify such an action of its own motion, taking into account the circumstances on which it is based, whereas a court ruling on an action brought under the Code of Civil Procedure, seeking to hold the State liable for damages resulting from judicial activity, is obliged to make such a classification.
133The principle of equivalence implies equal treatment of actions based on an infringement of national law and similar actions based on an infringement of Union law, and not the equivalence of national procedural rules applicable to disputes of a different nature such as, as in the main proceedings, civil proceedings, on the one hand, and administrative proceedings, on the other hand (see, to that effect, judgment of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 34).
134Secondly, the principle of effectiveness, noted in paragraph 117 of the present judgment, does not require the court seised under national law of an action for State liability for damage caused to individuals as a result of a breach of Union law to regard that action of its own motion as being based on Article 4(3) TEU, provided that nothing in national law prevents that court from examining the pleas in law alleging a breach of Union law relied on in support of the action. A solution to the contrary would be such as to make it impossible or excessively difficult for injured parties to exercise their right to compensation based on Union law.
135That interpretation is not called into question by the Court’s case-law according to which the principle of effectiveness does not, in principle, require national courts to raise of their own motion a plea alleging infringement of provisions of Union law, where the examination of that plea would require them to go beyond the limits of the dispute as defined by the parties, by relying on facts and circumstances other than those on which the party with an interest in the application of those provisions based its claim (judgments of 14 December 1995, van Schijndel and van Veen, C‑430/93 and C‑431/93, EU:C:1995:441, paragraph 22; of 7 June 2007, van der Weerd and Others, C‑222/05 to C‑225/05, EU:C:2007:318, paragraphs 36 and 41; and of 26 April 2017, Farkas, C‑564/15, EU:C:2017:302, paragraph 32).
136Since the applicant has in fact raised a plea in law alleging an infringement of Union law, in order to establish State liability, examination of that plea by the competent national court will not normally require it to go beyond the limits of the dispute as defined by that applicant.
137In the light of the foregoing considerations, the answer to the first question is that the principles of equivalence and effectiveness must be interpreted as meaning that they do not oblige a court ruling on a claim for damages formally based on a provision of national law relating to State liability for damage resulting from an administrative activity, but in support of which pleas in law alleging infringement of Union law as a result of such activity are raised, to regard that action of its own motion as being based on Article 4(3) TEU, in so far as that court is not prevented, by the applicable provisions of national law, to examine the pleas in law alleging infringement of Union law relied on in support of that action.
Costs
138Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fourth Chamber) hereby rules:
1.Article 7(6) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, must be interpreted as meaning that the depositor’s right to compensation which it provides for covers only the repayment, by the deposit-guarantee scheme, of deposits which are unavailable to that depositor, up to the amount laid down in Article 7(1a) of that directive, as amended by Directive 2009/14, following a finding of unavailability, by the competent national authority, of deposits held by the credit institution concerned, in accordance with Article 1(3)(i) of that directive, as amended by Directive 2009/14, so that Article 7(6) of that directive, as amended by Directive 2009/14, cannot establish, to the benefit of that depositor, a right to compensation for damage caused by the late repayment of the guaranteed amount of all his or her deposits or by inadequate supervision by the competent national authorities of the credit institution whose deposits have become unavailable.
2.The combined provisions of Article 1(3)(i), Article 7(6) and Article 10(1) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as precluding national legislation or a contractual clause according to which a deposit made with a credit institution whose payments have been suspended are to become due only following the withdrawal, by the competent authority, of the banking licence issued to that institution and on condition that the depositor has expressly requested the repayment of that deposit. In accordance with the principle of primacy of Union law, any national court hearing an action for damages allegedly caused by the repayment of the guaranteed amount of such a deposit outside the period laid down in Article 10(1) of that directive, as amended by Directive 2009/14, is required to set aside such national legislation or such a contractual clause for the purposes of deciding that action.
3.Article 17(3) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC, read in the light of recital 27 thereof, must be interpreted as meaning that a national court must take into consideration a recommendation of the European Banking Authority adopted on the basis of that provision, with a view to resolving the dispute before it, in particular in the context of an action seeking to establish the liability of a Member State for damage caused to an individual as a result of the non-application or incorrect or insufficient application of Union law giving rise to the investigation procedure which led to the adoption of that recommendation. Individuals harmed by the breach of Union law established by such a recommendation, even if they are not the addressees of the recommendation, must be able to rely on it as a basis for establishing, before the competent national courts, the liability of the Member State concerned for the breach of Union law in question;Recommendation EBA/REC/2014/02 of the European Banking Authority of 17 October 2014 addressed to the Balgarska Narodna Banka (Bulgarian National Bank) and the Fund za garantirane na vlogovete v bankite (Bank Deposit Guarantee Fund) on the measures necessary to comply with Directive 94/19/EC is invalid, in so far as it equated the decision of the Balgarska Narodna Banka (Bulgarian National Bank) to place Korporativna targovska banka AD under special supervision and to suspend its obligations to a finding of unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14.
4.Article 2, seventh indent, of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions, read in the light of Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a measure suspending payments applied by a national central bank to a credit institution as a reorganisation measure intended to preserve or restore the financial situation of that institution constitutes an unjustified and disproportionate interference with the exercise of the right of ownership of depositors with that institution if it does not respect the essential content of that right and if, having regard to the imminent risk of financial loss to which the depositors would have been exposed in the event of its bankruptcy, other less restrictive measures would have made it possible to achieve the same results, which is for the national court to verify.
5.Union law, in particular the principle of liability of the Member States for damage caused to individuals as a result of a breach of Union law, and the principles of equivalence and effectiveness, must be interpreted as meaning that:– it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the prior annulment of the administrative act or omission which caused the damage, provided that such annulment, even if required in respect of similar claims based on a breach of national law, is not in practice precluded or very limited;– it precludes national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition that the damage caused by the national authority in question be intentional;– it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition of proving actual and certain damage at the time when the action is brought, provided that that condition is not less favourable than those applicable to similar claims based on a breach of national law and is not so designed as to make it impossible or excessively difficult, having regard to the particular features of specific cases, to exercise such a right.
6.The principles of equivalence and effectiveness must be interpreted as meaning that they do not oblige a court ruling on a claim for damages formally based on a provision of national law relating to State liability for damage resulting from an administrative activity, but in support of which pleas in law alleging infringement of Union law as a result of such activity are raised, to regard that action of its own motion as being based on Article 4(3) TEU, in so far as that court is not prevented, by the applicable provisions of national law, to examine the pleas in law alleging infringement of Union law relied on in support of that action.
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