Contents
Judgment of the General Court (Third Chamber, Extended Composition)22 November 2023note(Economic and monetary union — Banking union — Single resolution mechanism for credit institutions and certain investment firms (SRM) — Resolution of Banco Popular Español — Decision of the SRB refusing to grant compensation to the shareholders and creditors affected by the resolution actions — Right to property — Right to be heard — Right to an effective remedy — Valuation of difference in treatment — Independence of the valuer)In Joined Cases T‑302/20, T‑303/20 and T‑307/20,Antonio Del Valle Ruíz, residing in Mexico City (Mexico), and the other applicants whose names are set out in the annex,note represented by B. Fernández García, J. Álvarez González and P. Rubio Escobar, lawyers,Aeris Invest Sàrl, established in Luxembourg (Luxembourg), represented by R. Vallina Hoset and M. Varela Suárez, lawyers,José María Arias Mosquera, residing in Madrid (Spain), and the other applicants whose names are set out in the annex,note represented by B. Fernández García, J. Álvarez González and P. Rubio Escobar,Calatrava Real State 2015, SL, established in Madrid, represented by B. Fernández García, J. Álvarez González and P. Rubio Escobar,vSingle Resolution Board (SRB), represented by M. Fernández Rupérez, A. Lapresta Bienz, L. Forestier and J. Rius Riu, acting as Agents, and by H.‑G. Kamann, F. Louis, V. Del Pozo Espinosa de los Monteros and L. Hesse, lawyers,Kingdom of Spain, represented by A. Gavela Llopis, acting as Agent,THE GENERAL COURT (Third Chamber, Extended Composition)composed, at the time of the deliberations, of M. van der Woude, President, G. De Baere (Rapporteur), G. Steinfatt, K. Kecsmár and S. Kingston, Judges,Registrar: P. Nuñez Ruiz, Administrator,having regard to the written part of the procedure,further to the hearing on 7 September 2022,gives the following
Judgment
1By their action under Article 263 TFEU, the applicants, Mr Antonio Del Valle Ruíz and 36 other natural or legal persons whose names are listed in the annex, Mr José María Arias Mosquera and 28 other natural or legal persons whose names are listed in the annex, and Calatrava Real State 2015, SL, seek the annulment of Decision SRB/EES/2020/52 of the Single Resolution Board (SRB) of 17 March 2020 determining whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular Español, SA have been effected (‘the contested decision’).
Background to the dispute
2The applicants are natural and legal persons who were shareholders in Banco Popular Español (‘Banco Popular’) before the adoption of a resolution scheme in respect of Banco Popular.
3On 7 June 2017, the Executive Session of the SRB adopted Decision SRB/EES/2017/08 concerning the adoption of a resolution scheme in respect of Banco Popular (‘the resolution scheme’) on the basis of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).
4Prior to the adoption of the resolution scheme, on 23 May 2017, following a procurement procedure, the SRB engaged Deloitte Réviseurs d’Entreprises as a valuer (‘the Valuer’) in connection with the preparation of a potential resolution of Banco Popular. The Valuer was awarded a specific contract following a competitive selection procedure under a multiple framework contract for services that the SRB had signed with six firms, including the Valuer. In accordance with the specific contract, the assignment of the Valuer included carrying out a valuation of Banco Popular prior to a potential resolution as well as the valuation of difference in treatment provided for in Article 20(16) to (18) of Regulation No 806/2014, after a potential resolution.
5On 5 June 2017, the SRB adopted a first valuation, pursuant to Article 20(5)(a) of Regulation No 806/2014, which had the objective of informing the determination of whether the conditions for resolution, as defined in Article 18(1) of Regulation No 806/2014, were met.
6On 6 June 2017, the Valuer submitted to the SRB a second valuation (‘Valuation 2’), drawn up pursuant to Article 20(10) of Regulation No 806/2014. The purpose of Valuation 2 was to estimate the value of Banco Popular’s assets and liabilities, to provide an evaluation of the treatment that shareholders and creditors would have received if Banco Popular had entered into normal insolvency proceedings, and to inform the decision to be taken on the shares and instruments of ownership to be transferred and the SRB’s understanding of what constitutes commercial terms for the purposes of the sale of business tool.
7In the resolution scheme, the SRB, considering that the conditions laid down in Article 18(1) of Regulation No 806/2014 were met, decided to place Banco Popular under resolution. The SRB decided to write down and convert Banco Popular’s capital instruments pursuant to Article 21 of Regulation No 806/2014 and to apply the sale of business tool pursuant to Article 24 of Regulation No 806/2014 by transferring shares to a purchaser.
8The SRB decided to cancel 100% of the shares of Banco Popular, to convert and write down all the principal amount of the additional Tier 1 capital instruments issued by Banco Popular and to convert all the principal amount of the Tier 2 capital instruments issued by Banco Popular into ‘New Shares II’. Following an open and transparent sale process carried out by the Spanish resolution authority, the Fondo de Reestructuración Ordenada Bancaria (FROB) (Fund for Orderly Bank Restructuring, Spain), the ‘New Shares II’ were transferred to Banco Santander SA, in consideration of payment of a purchase price of EUR 1. Subsequently, on 28 September 2018, as part of a merger by acquisition, Banco Santander became the universal successor of Banco Popular.
9On 7 June 2017, the European Commission adopted Decision (EU) 2017/1246 endorsing the resolution scheme for Banco Popular (OJ 2017 L 178, p. 15).
10On 14 June 2018, the Valuer communicated to the SRB the valuation of difference in treatment, provided for in Article 20(16) to (18) of Regulation No 806/2014, carried out in order to determine whether the shareholders and creditors would have received better treatment if the institution under resolution had entered into normal insolvency proceedings (‘Valuation 3’). On 31 July 2018, the Valuer sent to the SRB an addendum to that valuation, correcting some formal errors.
11In Valuation 3, the Valuer estimated the treatment which the affected shareholders and creditors would have received if Banco Popular had been subject to normal insolvency proceedings at the time when the resolution scheme was adopted. It carried out that assessment in the context of a liquidation scenario by applying Ley 22/2003, Concursal (Law 22/2003 on insolvency), of 9 July 2003 (BOE No 164, of 10 July 2003, p. 26905).
12The Valuer stated that the hypothetical liquidation scenario had been prepared on the basis of the unaudited financial information of 6 June 2017 or, if that information was unavailable, on the information of 31 May 2017. It maintained that the opening of normal insolvency proceedings for Banco Popular on 7 June 2017 would have resulted in an unplanned liquidation. In order to assess the realisation values of the assets, the Valuer took into account three alternative liquidation time scenarios, of 18 months, 3 years and 7 years, each including a best-case scenario and a worst-case scenario. The Valuer concluded that in each of those scenarios, for the affected shareholders and subordinated creditors, no recoveries would have been expected under normal insolvency proceedings and that there was therefore no difference in treatment by comparison with the treatment resulting from the resolution action.
13On 6 August 2018, the SRB published on its website its Notice of 2 August 2018 regarding its preliminary decision on whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected and the launching of the right to be heard process (SRB/EES/2018/132) (‘the preliminary decision’), and a non-confidential version of Valuation 3. On 7 August 2018, an announcement with regard to the Notice of the SRB was published in the Official Journal of the European Union (OJ 2018 C 277 I, p. 1).
14In the preliminary decision, the SRB stated that it followed from Valuation 3 that there was no difference between the actual treatment of the shareholders and creditors affected as a result of the resolution of Banco Popular and the treatment that they would have received if Banco Popular had been subject to normal insolvency proceedings at the resolution date. The SRB decided, on a preliminary basis, that it was not required to pay compensation to the affected shareholders and creditors pursuant to Article 76(1)(e) of Regulation No 806/2014.
15In order for it to be able to take a final decision on whether the affected shareholders and creditors should be granted compensation, the SRB invited them to express their interest in exercising their right to be heard with respect to the preliminary decision, in accordance with Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
16The SRB stated that the right to be heard process would be conducted in two phases.
17In the first phase, the registration phase, the affected shareholders and creditors were invited to express their interest in exercising their right to be heard, by means of a dedicated online registration form open until 14 September 2018. The SRB then had to verify whether each party that had expressed an interest qualified as an affected shareholder or creditor. The affected shareholders and creditors that had expressed an interest were to provide proof of their identity and proof that they owned, on 6 June 2017, one or more of the capital instruments of Banco Popular that were written down or converted and transferred in the context of the resolution.
18In a second phase, the consultation phase, the affected shareholders and creditors that had expressed their interest in exercising their right to be heard during the first phase and whose status had been verified by the SRB were able to submit their comments on the preliminary decision, to which Valuation 3 was annexed.
19On 16 October 2018, the SRB announced that the eligible shareholders and creditors would be invited to submit their comments on the preliminary decision in writing from 6 November 2018. On 6 November 2018, the SRB sent the eligible shareholders and creditors a unique personal link giving online access to a form enabling them to submit, until 26 November 2018, comments on the preliminary decision and on the non-confidential version of Valuation 3.
20At the end of the consultation phase, the SRB examined the relevant comments made by the affected shareholders and creditors in relation to the preliminary decision. It asked the Valuer to provide it with a document containing its assessment of the relevant comments relating to Valuation 3 and to examine whether Valuation 3 was still valid in the light of those comments.
21On 18 December 2019, the Valuer provided the SRB with its assessment, entitled ‘Clarification document of valuation of difference in treatment’ (‘the Clarification Document’). In the Clarification Document, the Valuer confirmed that the strategy and various hypothetical liquidation scenarios detailed in Valuation 3, as well as the methodologies followed and analyses used, remained valid.
22On 17 March 2020, the SRB adopted the contested decision. A communication concerning that decision was published on 20 March 2020 in the Official Journal of the European Union (OJ 2020 C 91, p. 2).
23In the contested decision, the SRB considered that the Valuer was independent in accordance with the requirements of Article 20(1) of Regulation No 806/2014 and Chapter IV of Commission Delegated Regulation (EU) 2016/1075 of 23 March 2016 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to regulatory technical standards specifying the content of recovery plans, resolution plans and group resolution plans, the minimum criteria that the competent authority is to assess as regards recovery plans and group recovery plans, the conditions for group financial support, the requirements for independent valuers, the contractual recognition of write-down and conversion powers, the procedures and contents of notification requirements and of notice of suspension and the operational functioning of the resolution colleges (OJ 2016 L 184, p. 1).
24In Section 5 of the contested decision, entitled ‘Valuation 3 Report’, the SRB summarised the content of Valuation 3 and found that it was in line with the applicable legal framework and was sufficiently reasoned and comprehensive to form the basis for a decision taken under Article 76(1)(e) of Regulation No 806/2014. It considered that Valuation 3 assessed the necessary elements set out in Article 20(17) of Regulation No 806/2014 and in Commission Delegated Regulation (EU) 2018/344 of 14 November 2017 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to regulatory technical standards specifying the criteria relating to the methodologies for valuation of difference in treatment in resolution (OJ 2018 L 67, p. 3).
25In Section 6 of the contested decision, the SRB presented the ‘comments received from eligible affected shareholders and creditors and their assessment’. In Section 6.1 of the contested decision, entitled ‘Relevance assessment’, the SRB explained that some of those comments, which related neither to its preliminary decision nor to Valuation 3, were not relevant since they fell outside the right to be heard process. In Section 6.2 of the contested decision, it carried out an ‘assessment of the relevant comments’ received from the affected shareholders and creditors in relation to the independence of the Valuer and to the content of Valuation 3, grouped by theme.
26The SRB concluded that it followed from Valuation 3, read in conjunction with the Clarification Document and the conclusions set out in Section 6.2 of the contested decision, that there was no difference between the actual treatment of the affected shareholders and creditors and the treatment that they would have received had Banco Popular been wound up under normal insolvency proceedings at the resolution date.
27Consequently, the SRB decided:‘Article 1ValuationFor the purposes of determining whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular … have been effected, the valuation of difference in treatment in resolution pursuant to Article 20(16) of Regulation (EU) No 806/2014 shall be as set out in Annex I to this Decision, in conjunction with [the] clarification document as set out in Annex II to this Decision.Article 2CompensationThe shareholders and creditors in respect of which the resolution actions concerning Banco Popular … have been effected shall not be entitled to compensation from the Single Resolution Fund in accordance with Article 76(1)(e) of Regulation (EU) No 806/2014.Article 3Addressee of the DecisionThis Decision is addressed to FROB, in its capacity as National Resolution Authority, within the meaning of Article 3(1)(3) of Regulation (EU) No 806/2014.’
Forms of order sought
28The applicants claim that the Court should:– annul the contested decision;– order the SRB and the Kingdom of Spain to pay the costs.
29The SRB contends that the Court should:– dismiss the actions;– order the applicants to pay the costs.
30In Case T‑302/20, the intervener, Aeris Invest Sàrl, claims that the Court should:– uphold the action;– order the SRB to pay the costs.
31The Kingdom of Spain contends that the Court should:– dismiss the actions;– order the applicants to pay the costs.
Law
32In support of their action, the applicants raise five pleas in law. The first plea alleges infringement of Article 15(1)(g) of Regulation No 806/2014. The second plea alleges infringement of Article 20(16) of Regulation No 806/2014. The third plea alleges infringement of the right to be heard enshrined in Article 41(2) of the Charter. The fourth plea alleges infringement of the right to an effective remedy enshrined in Article 47 of the Charter. The fifth plea alleges infringement of the right to property enshrined in Article 17 and Article 52(1) of the Charter and in Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’).
33As a preliminary point, it should be noted that the case-law has defined the scope of the review carried out by the Court both in situations in which the contested measure is based on an assessment of highly complex scientific and technical facts and in the case of complex economic assessments.
34First, with regard to situations in which the EU authorities have a broad discretion, in particular as to the assessment of highly complex scientific and technical facts, in order to determine the nature and scope of the measures which they adopt, review by the EU Courts is limited to verifying whether there has been a manifest error of assessment or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion. In such a context, the EU Courts cannot substitute their assessment of scientific and technical facts for that of the authorities of the European Union on which alone the FEU Treaty has placed that task (see judgments of 21 July 2011, Etimine, C‑15/10, EU:C:2011:504, paragraph 60 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 105 and the case-law cited).
35Second, as regards the review by the EU Courts of the complex economic assessments made by the EU authorities, that review is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers. When conducting such a review, the EU Courts must also not substitute their own economic assessment for that of the competent EU authority (see judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 66 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 106 and the case-law cited).
36Since the SRB’s decisions determining whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning an entity have been effected are based on highly complex economic and technical assessments, it must be considered that the principles stemming from the case-law referred to in paragraphs 34 and 35 above apply to the review which the Court is called upon to carry out.
37However, while the SRB is recognised as having a margin of discretion with regard to economic and technical matters, that does not mean that the EU Courts must refrain from reviewing the SRB’s interpretation of the economic data on which its decision is based. As the Court of Justice has held, even in the case of complex assessments, the EU Courts must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of supporting the conclusions drawn from it (see judgments of 11 November 2021, Autostrada Wielkopolska v Commission and Poland, C‑933/19 P, EU:C:2021:905, paragraph 117 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 108 and the case-law cited).
38In that regard, in order to establish that the SRB committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the factual assessments used in that scheme implausible (see, by analogy, judgments of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission, C‑148/19 P, EU:C:2020:354, paragraph 72, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 109 and the case-law cited).
39Consequently, a plea alleging a manifest error of assessment must be rejected if, despite the evidence adduced by the applicant, the challenged assessment may be accepted as being still true or valid (see judgments of 27 September 2018, Spiegel-Verlag Rudolf Augstein and Sauga v ECB, T‑116/17, not published, EU:T:2018:614, paragraph 39 and the case-law cited, and of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 76 and the case-law cited).
40Furthermore, it is settled case-law that, where the institutions have a discretion, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. The guarantees conferred by the EU legal order in administrative proceedings include, in particular, the principle of good administration enshrined in Article 41(2)(a) of the Charter, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. Only in this way can the EU Courts determine whether the factual and legal elements upon which the exercise of the discretion depends were present (see, to that effect, judgment of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14).
The first plea, alleging infringement of Article 15(1)(g) of Regulation No 806/2014
41The applicants claim that their expert report annexed to the applications shows that Valuation 3 is based on false premisses and uses criteria which are not appropriate for the valuation of Banco Popular. They state that the analysis in that report justifies 19 criticisms of Valuation 3 which are set out in the applications.
42The applicants assert that the expert report annexed to the applications established that, according to its own valuation, Banco Popular’s share capital was approximately EUR 5.974 billion at the date of the resolution, and that they would therefore have received better treatment under normal insolvency proceedings than in the resolution.
43The SRB contends that that plea is inadmissible in so far as the applicants refer to 19 errors in Valuation 3 in the form of 19 one-sentence claims which constitute very general assertions that are not in themselves intelligible and cannot be understood outside the context of the expert report annexed to the applications. The applications contain no arguments or factual basis in support of those assertions.
44Under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure of the General Court, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary, without any further information.
45According to consistent case-law, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgments of 3 March 2022, WV v EEAS, C‑162/20 P, EU:C:2022:153, paragraphs 68 and 70 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 299 and the case-law cited).
46In the first plea, as noted by the SRB, the applicants merely make 19 very general assertions relating to some of the Valuer’s assessments in Valuation 3. The first six assertions concern Banco Popular’s liquidation scenario and the others relate to the valuation of different categories of assets carried out in Valuation 3.
47The applicants confine themselves to stating that those assertions are justified by the analysis in the expert report annexed to the applications. They thus refer generally to the expert report annexed to the applications, which is 87 pages long and includes 76 pages of annexes, without making any reference to the parts of the expert report which support each of those 19 assertions.
48The same is true of the applicants’ conclusion that their expert report shows that they would have received better treatment under normal insolvency proceedings than in the resolution.
49In accordance with the case-law cited in paragraph 45 above, it is not for the Court to seek in that expert report the evidence justifying each of those assertions. Accordingly, the formulation of this plea does not enable the Court to give a ruling, if appropriate, without other information in support, and to allow the annexes to provide the detail of an argument which is not presented in a sufficiently clear and precise manner in the applications would be contrary to their purely evidential and instrumental function. Consequently, the argument referring generally to the expert report in the annex to the applications must be rejected as inadmissible.
50It follows that the Court is unable to identify precisely, on the basis of the content of the applications, the arguments on which it may consider that plea to be based.
51That plea is therefore simply stated, without being supported by any arguments, contrary to the rule laid down in Article 76(d) of the Rules of Procedure, and must be rejected as inadmissible.
52Moreover, it should be added that that conclusion is without prejudice both to the admissibility of the expert report annexed to the applications, and to the arguments put forward by the applicants in the other pleas which are based on that report and are sufficiently substantiated.
The second plea, alleging infringement of Article 20(16) of Regulation No 806/2014
53The applicants claim that the SRB infringed two conditions laid down in Article 20(16) of Regulation No 806/2014.
54Article 20(16) of Regulation No 806/2014 provides:‘For the purposes of assessing whether shareholders and creditors would have received better treatment if the institution under resolution had entered into normal insolvency proceedings, the Board shall ensure that a valuation is carried out by an independent person as referred to in paragraph 1 as soon as possible after the resolution action or actions have been effected.’
55In the first part of the plea, the applicants submit that the contested decision failed to assess whether the former shareholders of Banco Popular would have received better treatment under normal insolvency proceedings, given that normal insolvency proceedings were equated with liquidation. In the second part, they submit that Valuation 3 was not carried out by an independent person.
The first part, relating to the assessment of the counterfactual scenario
56The applicants dispute the counterfactual scenario used in Valuation 3 to establish the treatment that the affected shareholders and creditors would have received if Banco Popular had entered into normal insolvency proceedings, namely the liquidation scenario. By their first complaint, they submit that the applicable legislation favours an alternative to liquidation. By their second complaint, raised in the alternative, they submit that, even if a liquidation scenario were applicable, Spanish legislation does not require the disposal of individual assets or asset portfolios.
–The first complaint, disputing the use of a liquidation scenario
57The applicants, supported by Aeris Invest, claim that the SRB erred in law in considering that determining hypothetical treatment under normal insolvency proceedings required the use of a liquidation scenario. They consider that, under Spanish law, a composition agreement is the preferred outcome of insolvency proceedings.
58The applicants submit that composition agreements are encouraged, in Spanish legislation, by a series of measures aimed at achieving the satisfaction of creditors by means of the arrangement made in a legal transaction. They consider that the SRB interpreted this legislation in the manner most favourable to its own interest, since the valuation of Banco Popular in a liquidation scenario is lower than the valuation which would be obtained under a composition agreement.
59In the contested decision, the SRB noted that, according to Article 15(1)(g) of Regulation No 806/2014, Valuation 3 was to be carried out to determine whether affected shareholders and creditors had been worse off under resolution than they would have been if Banco Popular had been ‘wound up under normal insolvency proceedings’. It noted, as the Valuer did in the Clarification Document (Section 5.1.5), that Ley 11/2015 de recuperación y resolución de entidades de crédito y empresas de servicios de inversión (Spanish Law 11/2015 on the recovery and resolution of credit institutions and investment services firms) of 18 June 2015 (BOE No 146 of 19 June 2015, p. 50797), which transposes Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190), specifically provides that valuation of difference in treatment is to be carried out on the assumption that the entity has entered into liquidation proceedings.
60In the first place, as regards the relevant provisions of Regulation No 806/2014, it should be noted that the purpose of the valuation provided for in Article 20(16) of that regulation is to determine whether shareholders and creditors would have received better treatment if the institution under resolution had entered into normal insolvency proceedings.
61Pursuant to Article 20(17) of Regulation No 806/2014, the valuation referred to in paragraph 16 of that article must determine whether there is any difference between the actual treatment that shareholders and creditors have received in the resolution, and the treatment they would have received if the entity had entered into normal insolvency proceedings at the time when the decision on the resolution action was taken.
62The aim of that valuation is to implement the no-creditor-worse-off principle, set out in Article 15(1)(g) of Regulation No 806/2014, which provides that ‘no creditor shall incur greater losses than would have been incurred if an entity referred to in Article 2 had been wound up under normal insolvency proceedings in accordance with the safeguards provided for in Article 29’.
63In application of that principle, Article 76(1)(e) of Regulation No 806/2014 states that the SRB may use the Single Resolution Fund (SRF) ‘to pay compensation to shareholders or creditors if, following an evaluation pursuant to Article 20(5) they have incurred greater losses tha[n] they would have incurred, following a valuation pursuant to Article 20(16), in a winding up under normal insolvency proceedings’.
64Thus, it is clear from the abovementioned provisions of Regulation No 806/2014 that the reference made in Article 20(16) to (18) of Regulation No 806/2014 to the treatment which the entity’s shareholders and creditors would have received if that entity had entered into normal insolvency proceedings refers to their hypothetical treatment in the event of the winding up of that entity.
65In addition, according to Article 4(1) of Delegated Regulation 2018/344, the methodology for conducting the valuation of the treatment that shareholders and creditors in respect of which resolution actions have been effected would have received had the entity entered into normal insolvency proceedings at the resolution decision date must be limited to determining the discounted amount of expected cash flows under normal insolvency proceedings. The factors to be taken into account to assess those cash flows, set out in Article 4(4) and (5) of Delegated Regulation 2018/344, are intended to determine the value of the assets, depending on whether or not they are traded in an active market, in the context of a hypothetical transfer. Article 4(8) of Delegated Regulation 2018/344 also provides that the hypothetical proceeds resulting from the valuation are to be allocated to shareholders and creditors in accordance with their priority level under the applicable insolvency law.
66It follows that the methodology for valuation of the treatment that the shareholders and creditors would have received under hypothetical normal insolvency proceedings, as defined in Delegated Regulation 2018/344, consists of the realisation of the institution’s assets, and therefore a winding up, as defined in Article 3(1)(42) of Regulation No 806/2014.
67As regards the mechanism for compensating the shareholders and creditors of an entity under resolution established by Regulation No 806/2014, recital 62 of that regulation states:‘Interference with property rights should not be disproportionate. As a consequence, affected shareholders and creditors should not incur greater losses than those which they would have incurred had the entity been wound up at the time that the resolution decision is taken. In the event of partial transfer of assets of an institution under resolution to a private purchaser or to a bridge institution, the residual part of the institution under resolution should be wound up under normal insolvency proceedings. In order to protect shareholders and creditors of the entity during the winding up proceedings, they should be entitled to receive in payment of their claims not less than what it is estimated they would have recovered if the entity as a whole had been wound up under normal insolvency proceedings.’
68According to Article 20(18)(a) and (b) of Regulation No 806/2014, the valuation of difference in treatment provided for in Article 20(16) of that regulation assumes that an institution under resolution with respect to which the resolution action or actions have been effected would have entered into normal insolvency proceedings at the time when the decision on the resolution action was taken, and assumes that the resolution action or actions had not been effected.
69It should also be recalled that in order for a resolution action to be effected in respect of an entity, the conditions laid down in Article 18(1) of Regulation No 806/2014 must be met, namely the entity must be failing or likely to fail, there must be no alternative private sector measures or supervisory actions that would prevent its failure within a reasonable time frame, and the resolution action must be necessary in the public interest. According to Article 18(5) of Regulation No 806/2014, a resolution action is to be treated as in the public interest if it is necessary for the achievement of, and is proportionate to, one or more of the resolution objectives, and the winding up of the entity under normal insolvency proceedings would not meet those resolution objectives to the same extent.
70Thus, a resolution action constitutes an alternative to the winding up of an entity where the public interest so requires.
71According to Article 76(1)(e) of Regulation No 806/2014, implementing the principle referred to in Article 15(1)(g) of that regulation, the shareholders and creditors in the resolution procedure are entitled to receive in payment of, or compensation for, their claims in the winding up proceedings not less than what it is estimated they would have recovered if the whole institution or firm at issue had been wound up under normal insolvency proceedings (see, by analogy, judgment of 5 May 2022, Banco Santander (Resolution of Banco Popular), C‑410/20, EU:C:2022:351, paragraph 48).
72It follows that, in order to establish the difference in treatment, the comparison to be made is between the actual treatment of the shareholders and creditors affected as a result of the resolution, and the assessment of the situation they would have been in if the resolution action had not been effected, namely in the event that the entity had been wound up.
73In the second place, as regards the applicable national legislation, the comparison with the treatment the shareholders and creditors would have received if the institution had entered into normal insolvency proceedings must refer to the national proceedings to which the institution would have been subject if the resolution action had not been effected.
74In that regard, Article 4(3) of Delegated Regulation 2018/344 states:‘The valuer shall take the following into account in the determination of the discounted amount of expected cash flows under normal insolvency proceedings:(a) applicable insolvency law and practice in the relevant jurisdiction, which may influence factors such as the expected disposal period or recovery rates;…’
75Consequently, Aeris Invest cannot reasonably submit that Spanish law was not applicable in determining the counterfactual scenario for Banco Popular.
76As stated by the Kingdom of Spain, when regulating the assessment of difference in treatment, the Spanish legislature did not envisage a scenario other than liquidation under normal insolvency proceedings.
77In that regard, Real Decreto 1012/2015 por el que se desarrolla la Ley 11/2015, y por el que se modifica el Real Decreto 2606/1996, de 20 de diciembre, sobre fondos de garantía de depósitos de entidades de crédito (Royal Decree 1012/2015 implementing Law 11/2015 and amending Royal Decree 2606/1996 of 20 December 1996 on deposit guarantee funds for credit institutions) of 6 November 2015 (BOE No 267 of 7 November 2015, p. 105911), which transposes Directive 2014/59, contains specific provisions on the assessment of difference in treatment.
78Article 10(2) of Royal Decree 1012/2015 provides that the valuation must determine the treatment that shareholders and creditors would have received if the entity under resolution had been subject to liquidation proceedings at the time that the resolution decision was adopted.
79In that regard, Article 10(3)(a) of Royal Decree 1012/2015 states that the assessment must be based on the assumption that the entity in respect of which resolution actions have been effected would have been wound up under insolvency proceedings at the time that the resolution decision was taken.
80Thus, in the context of the assessment of difference in treatment following a resolution decided by the FROB, Spanish law provides that the counterfactual scenario is to be based on the entity’s liquidation scenario, taking into account the provisions of Law 22/2003 which relate to liquidation.
81In that regard, as noted by the Kingdom of Spain, the concept of ‘liquidation’, referred to in Articles 148 and 149 of Law 22/2003, consists of the realisation of the assets and rights of the bankrupt undertaking in order to satisfy the creditors with the proceeds of that realisation, and corresponds to the definition in Article 3(1)(42) of Regulation No 806/2014.
82Furthermore, Article 100 of Law 22/2003 on composition agreements is included in Title V of that law, entitled ‘The liquidation or composition phases’. It follows that Law 22/2003, which is the general law on bankruptcy, provides that a composition agreement is an alternative solution to liquidation at the end of the common phase of bankruptcy proceedings. In that regard, the applicants accept that, according to the provisions of Law 22/2003, a composition agreement and liquidation are two mutually exclusive solutions.
83Accordingly, by expressly providing that difference in treatment must be assessed on the basis of the assumption that the entity has entered the liquidation phase, Royal Decree 1012/2015 excluded the possibility of applying the alternative solution of a composition agreement with creditors.
84It follows that, contrary to what the applicants submit, the applicable provisions of Spanish law provide that the determination of difference in treatment must be based on a liquidation scenario. The applicants and Aeris Invest are therefore wrong to submit that a counterfactual scenario based on a composition agreement with the creditors may be considered under the applicable legal framework.
85Consequently, the assertion of the applicants and Aeris Invest, according to which the solution of the composition agreement with the creditors is favoured in normal insolvency proceedings in Spain, is not relevant.
86It follows that the applicants and Aeris Invest are wrong to submit that the SRB erred in law in considering that determining hypothetical treatment under normal insolvency proceedings required the use of a liquidation scenario.
87Accordingly, the first complaint must be rejected.
–The second complaint, disputing the disposal of individual assets or asset portfolios
88The applicants claim that, even if it were necessary to consider a liquidation scenario, the SRB infringed the applicable legislation in so far as the liquidation process does not necessarily entail the sale of individual assets or asset portfolios, which is the methodology used by the Valuer in Valuation 3. Law 22/2003 gives priority to the protection and continuity of undertakings, and therefore to the disposal of the undertaking in question as a whole or divided into business units.
89The applicants and Aeris Invest submit that Banco Popular could have continued as a going concern, given its liquidity position and the fact that its banking licence had not been withdrawn.
90The applicants refer to the expert report annexed to the applications, according to which the liquidation of Banco Popular by the sale of the institution as a whole or divided into business units would have resulted in Banco Popular’s share capital being higher than that stated in Valuation 3, meaning that they would have received better treatment under normal insolvency proceedings than they received in the resolution.
91In the present case, it must be recalled that, if the resolution scheme had not been adopted, the alternative was the liquidation of Banco Popular under normal insolvency proceedings (judgment of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 421).
92In that regard, in the contested decision, the SRB noted that, in accordance with Valuation 3, in the light of the circumstances of the case and in particular, the inability of Banco Popular to pay its debts as they fell due, the opening of normal insolvency proceedings at the resolution date would have resulted in the liquidation of Banco Popular, which would have entailed an accelerated realisation of assets, with no minimum binding price, and payment of net realisation to creditors in accordance with the hierarchy established by Law 22/2003.
93It should also be mentioned that the applicants’ argument that the counterfactual scenario for the resolution action would not necessarily entail the liquidation of Banco Popular had already been raised by some of the affected shareholders and creditors in the right to be heard process.
94In the contested decision, the SRB noted that they had claimed that a private sector solution could have been found or that the counterfactual scenario should have been based on the sale of the Banco Popular as a going concern, since it was still operating in the market at the date of the adoption of the resolution decision. In particular, the SRB stated that some affected shareholders and creditors submitted that the creditors could have concluded an agreement (a composition agreement) which would have prevented the liquidation of Banco Popular. Others noted that Spanish insolvency proceedings allowed for the possibility of a ‘pre-packaged’ insolvency, whereby the entity’s viable assets would be separated and sold as a going concern. They asserted that that solution should have been considered by the Valuer when defining the liquidation strategy, as it would have made it possible to better preserve Banco Popular’s franchise value.
95The SRB noted that, without prejudice to the requirements laid down in Regulation No 806/2014 and in the applicable national legislation, the Valuer had explained, in the Clarification Document, the reasons why it would not be possible, in the case of Banco Popular, to complete a sale of business as a going concern (by way of a pre-packaged insolvency process or otherwise) or to arrange a composition agreement. In that regard, first, the Valuer had stated that, given the liquidity position of Banco Popular at the resolution date and the assessment of the European Central Bank (ECB) assessment that Banco Popular was failing or likely to fail, Banco Popular could not continue to operate while negotiations were undertaken, leading to significant value destruction. The SRB added that a letter of the Chief Executive Officer of Banco Popular, dated 6 June 2017, supported the conclusion that Banco Popular’s liquidity position would not permit it to continue as a going concern. Second, the Valuer considered that Banco Popular’s banking licence would be revoked, since the conditions for its withdrawal provided under Spanish law would be satisfied. It stated that a banking licence was required to accept customer deposits, which were fundamental to Banco Popular’s continued operation or to its sale as a going concern.
96The SRB added that the Valuer had mentioned, in the Clarification Document, that the creation of a ‘good bank’ and a ‘bad bank’ was not provided for in Law 22/2003 and, in any event, would have required time to be set up which was not available in the circumstances.
97The SRB concluded that the Valuer had provided an appropriate assessment concerning the liquidation scenario used in Valuation 3.
98The applicants and Aeris Invest claim that the counterfactual liquidation scenario should have been based on the assumption that Banco Popular was able to continue as a going concern.
99In that regard, it should be recalled that, pursuant to Article 20(17) and (18) of Regulation No 806/2014, the treatment that the affected shareholders and creditors would have received if Banco Popular had entered into normal insolvency proceedings must be determined at the time when the resolution scheme was adopted.
100Thus, the counterfactual liquidation scenario envisaged in Valuation 3 had to be defined in the light of Banco Popular’s situation, namely that it was failing or likely to fail, at the resolution date.
101Indeed, it should be recalled that the SRB considered, in the resolution scheme, that the conditions laid down in Article 18(1) of Regulation No 806/2014 were met, and that in Decision 2017/1246, having found that the resolution scheme complied with the provisions of Regulation No 806/2014, the Commission endorsed that scheme. Therefore, at the date of the adoption of the resolution scheme, first, Banco Popular was failing or was likely to fail, second, there were no alternative measures that could prevent the failure of Banco Popular within a reasonable time frame and, third, a resolution action in the form of a sale of business tool in respect of Banco Popular was necessary in the public interest.
102The arguments put forward by the applicants and Aeris Invest, that the Valuer should have envisaged a liquidation scenario based on the assumption that Banco Popular was able to continue as a going concern, are in contradiction with the facts established at the resolution date and with the decision to place Banco Popular under resolution.
103Indeed, to regard Banco Popular as being able to continue as a going concern at the resolution date would call into question the fact that the conditions laid down in Article 18(1) of Regulation No 806/2014 were met at the date of the adoption of the resolution scheme and would, therefore, be tantamount to disputing the legality of the scheme. It is sufficient to observe, however, that the resolution scheme is not the subject of the present action.
104It follows that the applicants cannot reasonably submit that the SRB made a manifest error in accepting the Valuer’s assessment that, at the resolution date, since Banco Popular was not able to continue as a going concern, a counterfactual scenario based on the going concern assumption was not conceivable.
105In any event, the arguments put forward by the applicants and Aeris Invest that, given its liquidity position and the fact that its banking licence would not have been revoked, Banco Popular could have continued as a going concern at the resolution date cannot succeed.
106In the first place, the applicants and Aeris Invest submit that Banco Popular could have continued as a going concern on account of its liquidity position.
107In that regard, first, Aeris Invest claims that the SRB infringed its obligation to examine the available information on the emergency liquidity assistance which had been authorised by the ECB and which enabled Banco Popular to have sufficient liquidity.
108It should be recalled that, in accordance with Article 20(18) of Regulation No 806/2014, in order to establish the counterfactual scenario, Valuation 3 must assume that Banco Popular would have entered into normal insolvency proceedings at the time when the resolution scheme was adopted, assume that the resolution action had not been effected and disregard any provision of extraordinary public financial support.
109However, it is sufficient to note that, at the date of the adoption of the resolution scheme, the emergency liquidity assistance authorised by the ECB, mentioned by Aeris Invest, had not been granted to Banco Popular by the Bank of Spain. Consequently, that emergency liquidity assistance could not be taken into consideration in Valuation 3 for the purpose of assessing the situation Banco Popular would have been in if it entered into normal insolvency proceedings on that date.
110Second, the applicants and Aeris Invest consider that, in arguing that Banco Popular could not have continued as a going concern, the SRB wrongly relied on the ECB’s assessment that Banco Popular was failing or likely to fail, in so far as that assessment did not have binding effects and did not state that Banco Popular had to cease its activities.
111It should be recalled that, on 6 June 2017, namely the day before the adoption of the resolution scheme, the ECB adopted its assessment that Banco Popular was failing or likely to fail. In that assessment, taking into account, in particular, the excessive deposit outflows, the speed at which liquidity had been lost from the bank and the inability of the bank to generate further liquidity, the ECB considered that there were objective elements indicating that Banco Popular was likely, in the near future, to be unable to pay its debts or other liabilities as they fell due. The ECB concluded that Banco Popular was deemed to be failing, or in any case likely to fail in the near future, in accordance with Article 18(1)(a) and (4)(c) of Regulation No 806/2014.
112It is sufficient to note that the ECB’s finding that Banco Popular was failing or likely to fail constitutes a fact which the Valuer and the SRB could take into account for the purposes of assessing Banco Popular’s situation at the resolution date. Furthermore, as stated by the Valuer in Valuation 3, that finding had moreover been confirmed by Board of Directors of Banco Popular which, on 6 June 2017, informed the ECB that it had reached the conclusion that the bank was likely to fail.
113Lastly, neither the Valuer nor the SRB has asserted that the ECB’s assessment required Banco Popular to cease its activities.
114Third, Aeris Invest submits that Banco Popular’s liquidity crisis was not such that it should have led to a liquidation, in so far as there were no investigations into failures to comply with EU prudential requirements.
115In that regard, first, it should be recalled that, in the resolution scheme, the SRB had noted that, on 12 May 2017, the liquidity coverage requirement (LCR) of Banco Popular dropped below the minimum threshold of 80% set by Article 460(2)(c) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1). Aeris Invest does not dispute this fact.
116Second, there was no requirement for national authorities to have taken concrete action to address failures to comply with liquidity coverage requirements in order for it to be determined that, in view of Banco Popular’s liquidity position and the fact that it was unable to pay its debts as they fell due, the bank was no longer able to continue as a going concern at the resolution date.
117That argument is therefore ineffective.
118In the second place, the applicants and Aeris Invest assert that Banco Popular’s banking licence would not have been revoked.
119In that regard, it should be noted that, in Valuation 3 and in the Clarification Document, the Valuer stated that Banco Popular’s banking licence would have been revoked pursuant to Article 8 of Ley 10/2014 de ordenación, supervisión y solvencia de entidades de crédito (Law 10/2014 on the organisation, supervision and solvency of credit institutions) of 26 June 2014 (BOE No 156 of 27 June 2014, p. 49412). That law provides, inter alia, that a banking licence granted to a credit institution may be revoked, first, in the event that that institution compromises its ability to repay funds entrusted to it by depositors or is unable to offer guarantees of being able to fulfil its obligations to creditors, and second, in the event that there is a judicial decision to open a liquidation phase in insolvency proceedings. The Valuer stated that, even in the unlikely event that the Bank of Spain did not take any action to withdraw Banco Popular’s banking licence, the risk of a deposit flight and a decision from the SRB not to exercise its resolution powers would have forced the bank’s directors to file an application for liquidation, which would have resulted in the withdrawal of the licence.
120It is sufficient to recall that, at the resolution date, both the ECB and Banco Popular’s board of directors had considered that the bank was failing or likely to fail, which, in accordance with Article 18(4)(c) of Regulation No 806/2014, meant that Banco Popular was unable to pay its debts or other liabilities as they fell due, or that there were objective elements to support a determination that that would occur in the near future.
121The applicants merely assert that Banco Popular’s situation was such that it was able to pay its debts, without providing any evidence in support of that assertion. Moreover, for the reasons set out in paragraph 109 above, Aeris Invest cannot rely on the emergency liquidity assistance authorised by the ECB to maintain that Banco Popular was able to meet its liabilities.
122It follows that the applicants and Aeris Invest cannot reasonably submit that Banco Popular’s situation at the resolution date did not correspond to the first situation provided for in Article 8 of Law 10/2014, mentioned in paragraph 119 above, and that the SRB made a manifest error in considering that Banco Popular’s banking licence would have been revoked.
123Consequently, Aeris Invest’s argument that, since Banco Popular had not entered a liquidation phase under Spanish law, its situation did not correspond to the second situation provided for in Article 8 of Law 10/2014 on the opening of a liquidation phase must also be rejected.
124It follows that the applicants cannot assert that, when carrying out its assessment of Banco Popular, the Valuer should have taken into account the sale of the institution as a whole or divided into business units, which implies a continuation of the undertaking’s activities.
125The applicants have therefore not established that the Valuer made an error by using a methodology based on a liquidation scenario and on the sale of individual assets or asset portfolios.
126Moreover, the applicants submit that the ‘good bank/bad bank’ strategy was permitted by the applicable national law and that, according to the expert report annexed to the applications, that was the best strategy through which to apply the no-creditor-worse-off principle. They state that, in that report, their expert envisaged a liquidation of the bank by business unit, in a scenario similar to an asset separation, through the formation of two new companies: one company to which the bank’s main activity and banking licence would be transferred, and one asset management company to which the non-performing assets would be transferred. The liquidation of the company by business unit would involve winding it up as a going concern and transferring the banking licence – which, according to the expert report, should not be revoked – and would allow for a shorter liquidation period and therefore a reduction in costs.
127It is sufficient to note that that argument and the expert report annexed to the applications, in that it contains a valuation of Banco Popular as a going concern, is irrelevant in so far as it is based on the erroneous assumption that Banco Popular could have continued as a going concern.
128In any event, the fact that the outcome of estimating the value of Banco Popular’s assets in the case of hypothetical normal insolvency proceedings, as set out in the applicants’ expert report, is at odds with the assessments set out in Valuation 3, except where the applicants claim that those assessments are implausible, constitutes a challenge which goes beyond the limited review by the Court provided for in the case-law referred to in paragraphs 34 and 35 above (see, to that effect and by analogy, judgment of 25 November 2020, BMC v Clean Sky 2 Joint Undertaking, T‑71/19, not published, EU:T:2020:567, paragraph 78).
129In so far as it contains a valuation of Banco Popular based on the going concern assumption which is different from the valuation contained in Valuation 3, the expert report annexed to the applications is not such as to make the assumptions used by the Valuer in Valuation 3 implausible.
130It follows that the second complaint, and therefore the first part of the plea, must be rejected.
The second part, relating to the independence of the Valuer
131In the applications, the applicants submit that the SRB infringed Article 20(16) of Regulation No 806/2014 in that it did not take sufficient measures to ensure that the Valuer was independent. They submit that, given that the Valuer had been responsible for carrying out Valuation 2, it is legitimate to doubt that, in Valuation 3, it could have departed from the criteria and conclusions of Valuation 2 regarding the assessment of difference in treatment. They note that a large part of Valuation 3 follows along the same lines as Valuation 2.
132At the hearing, in response to the questions put by the Court, the applicants clarified the scope of their arguments. The applicants acknowledged that Valuation 3 and the liquidation scenario simulation in Valuation 2 were based on different data, but noted that the conclusion reached by the Valuer, namely that the affected shareholders and creditors were not entitled to compensation, was the same. They stated that in Valuation 3, the Valuer had used the same methodology as in the second part of Valuation 2 containing a liquidation scenario simulation, namely that the Valuer had carried out a valuation of the assets on a portfolio basis, and not on a going concern basis. They considered that Banco Popular’s value would have been very high if it had been valued as a going concern.
133Thus it is apparent from the explanations provided by the applicants at the hearing that they submit that it is possible to question the independence of the Valuer in so far as, in Valuation 3, it valued Banco Popular’s assets using the same methodology as that used in the liquidation scenario simulation set out in Valuation 2, namely a counterfactual liquidation scenario.
134However, it is clear from the analysis of the first part of the plea that, in view of the applicable provisions and of Banco Popular’s situation at the resolution date, the evaluation of the treatment that the affected shareholders and creditors would have received if Banco Popular had entered into normal insolvency proceedings could be carried out only based on a liquidation scenario, and that a valuation as a going concern was not possible.
135It follows that any other valuer appointed by the SRB to carry out Valuation 3 would have had to use the same methodology.
136The applicants cannot therefore reasonably submit that the fact that the Valuer used the same methodology in Valuation 2 and in Valuation 3, namely a valuation of Banco Popular based on a hypothetical liquidation scenario, is capable of establishing a lack of independence on the part of the Valuer.
137Therefore, the second part of the plea, and consequently the second plea in its entirety, must be rejected.
The third plea, alleging infringement of the right to be heard enshrined in Article 41(2) of the Charter
138The applicants claim that, although the SRB did allow the affected shareholders and creditors the opportunity to comment before the adoption of the contested decision, it limited their right to be heard by imposing on them the use of a form containing seven narrow questions with limited space in which to provide a response. They submit that the SRB only ostensibly complied with its obligation to hear the affected shareholders and creditors before adopting the contested decision, in so far as the fact of having to provide responses in a form prepared by the SRB and tailored to the interests of the SRB hindered the effective exercise of the right to be heard.
139They consider that a number of the issues to be addressed were not covered in the form prepared by the SRB, and that the fact that they had to limit any additional comments on the preliminary decision to a maximum of 5000 characters did not allow for a critical analysis of Valuation 3 and of the preliminary decision, especially since it was impossible to attach documents to the form.
140It should be recalled that Article 41(2)(a) of the Charter provides that the right to good administration includes the right of every person to be heard before any individual measure which would affect him or her adversely is taken.
141The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely. Furthermore, it is settled case-law that the right to be heard pursues a dual objective. First, it enables the case to be examined and the facts to be established in as precise and correct a manner as possible, and second, it ensures the effective protection of the person concerned. The right to be heard is intended, inter alia, to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is, in particular, to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see judgments of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraphs 89 and 90 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 325 and the case-law cited).
142As follows from its very wording, that provision is of general application. Accordingly, the right to be heard must be observed in all proceedings which are liable to culminate in a measure adversely affecting a person, even where the applicable legislation does not expressly provide for such a procedural requirement (see judgments of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 67 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 326 and the case-law cited).
143In the light of its character as a fundamental general principle of EU law, the application of the principle of the rights of the defence, which include the right to be heard, cannot be excluded or restricted by any legislative provision. Respect for that principle must therefore be ensured both where there is no specific legislation and also where legislation exists which does not itself take account of that principle (see judgment of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 327 and the case-law cited).
144First of all, Regulation No 806/2014 does not provide for a specific procedure to ensure that the shareholders and creditors affected by a resolution action are heard before the adoption of the decision whether or not to grant them compensation pursuant to Article 76(1)(e) of that regulation.
145However, in the present case, the SRB organised a right to be heard process, under Article 41(2)(a) of the Charter, which was open to all the shareholders and creditors affected by the resolution of Banco Popular and intended to enable them to comment on Valuation 3 and the preliminary decision before the adoption of the contested decision.
146In that regard, although, as recalled in paragraph 143 above, respect for the right to be heard must be ensured even where there is no legislation which expressly provides for the exercise of that right, the fact remains that neither Regulation No 806/2014 nor Article 41 of the Charter lays down a specific procedure for implementing the right to be heard. The SRB therefore had a margin of discretion in the organisation of the process which it deemed appropriate to enable the affected shareholders and creditors to exercise their right to be heard, provided that they would be able to exercise their right effectively.
147Thus, in the absence of specific provisions concerning the right to be heard process, the SRB’s decision to use a form to collect the comments of the affected shareholders and creditors was within its margin of discretion in organising that process.
148The applicants do not dispute that that process was intended to guarantee to the affected shareholders and creditors a right to be heard before the adoption of the contested decision. They do not call into question the decision to use a form as a method of consultation. As is apparent from paragraphs 17 and 100 of the application in Case T‑302/20 and from paragraphs 18 and 101 of the applications in Cases T‑303/20 and T‑307/20, they complain that the SRB limited their right to be heard in so far as that form restricted the content and length of the comments they could make on Valuation 3 and the preliminary decision, and in so far as they did not therefore have ‘total freedom’ in the exercise of that right.
149However, the exercise of the right to be heard may be subject to limitations, in accordance with Article 52(1) of the Charter, which states:‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’
150In that regard, according to the settled case-law of the Court, fundamental rights, such as respect for the rights of the defence, which includes the right to be heard, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see judgments of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 207 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 337 and the case-law cited).
151Furthermore, according to settled case-law, an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgments of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 105 and the case-law cited, and of 16 June 2021, CE v Committee of the Regions, T‑355/19, EU:T:2021:369, paragraph 101 and the case-law cited).
152Admittedly, an applicant cannot be required to demonstrate that the decision in question would have been different, but simply that such a possibility cannot be ruled out entirely, since that party would have been better able to defend itself had there been no procedural error (see judgment of 4 May 2022, CRIA and CCCMC v Commission, T‑30/19 and T‑72/19, EU:T:2022:266, paragraph 242 and the case-law cited).
153However, the existence of an irregularity relating to the rights of the defence can result in the annulment of the contested measure only where there is a possibility that, due to that irregularity, the administrative procedure would have resulted in a different outcome and thus in fact adversely affecting the rights of the defence of the applicant (see judgments of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 79 and the case-law cited, and of 4 May 2022, CRIA and CCCMC v Commission, T‑30/19 and T‑72/19, EU:T:2022:266, paragraph 243 and the case-law cited).
154As part of the right to be heard process, described in paragraphs 15 to 20 above, the affected shareholders and creditors who met the criteria for the registration phase were invited to complete a form available on the SRB website which contained nine general questions – seven main questions, one of which was divided into three sub-questions – allowing them to comment on the preliminary decision and on the non-confidential version of Valuation 3. In particular, the last question was an open question allowing them to comment on any subject relating to the preliminary decision which had not already been covered in the form.
155In the first place, the applicants and Aeris Invest complain that the SRB failed to examine certain comments on the ground that they ‘fell outside the scope of the process’.
156In that regard, in Section 6.1 of the contested decision, entitled ‘Relevance assessment’, the SRB stated that, given that the affected shareholders and creditors had raised a number of elements which were not related to the preliminary decision or its underlying reasoning, as contained in Valuation 3, the SRB first assessed the relevance of such comments. It considered that such comments could not affect the assessment as to whether affected shareholders and creditors would have received better treatment if Banco Popular had entered into normal insolvency proceedings, that those comments fell outside the scope of the right to be heard process and that they would not be taken into account.
157The SRB thus listed the comments which it considered to be irrelevant, which included comments relating to the situation of Banco Popular prior to the resolution scheme and to the fact that Banco Popular did not meet the conditions for resolution, comments relating to other elements of the resolution scheme and to Valuation 2, comments relating to the lack of information on the resolution scheme and to the ECB’s assessment that Banco Popular was failing or likely to fail, and comments on the implementation of the right to be heard process, and in particular, the characteristics of the form.
158It follows that, contrary to what is submitted by the applicants and Aeris Invest, the SRB examined all the comments received and explained, in the contested decision, why some of those comments were not relevant for the purpose of adopting the contested decision.
159Neither the applicants nor Aeris Invest state which of the comments rejected as irrelevant by the SRB should have been examined. They have not explained to what extent those comments, in so far as they did not relate to Valuation 3 or to the preliminary decision, could have affected the content of the contested decision.
160In any event, it should be recalled that the right to be heard process was intended to obtain comments on the preliminary decision and Valuation 3 in order to enable the SRB to adopt a decision on possible compensation for the affected shareholders and creditors. In accordance with Article 20(17) of Regulation No 806/2014, recalled in paragraph 61 above, that decision is based on a comparison between the actual treatment that the affected shareholders and creditors received in the resolution and the treatment they would have received in the event of the hypothetical liquidation of Banco Popular at the resolution date.
161As is clear from paragraphs 99 to 103 above, the situation of Banco Popular at the resolution date constitutes a fact which cannot be called into question at the stage of determining entitlement to possible compensation under Article 76(1)(e) of Regulation No 806/2014. Therefore, the comments concerning Banco Popular’s situation prior to the resolution were not relevant for the purpose of adopting the contested decision.
162Accordingly, it cannot be alleged that the SRB infringed the applicants’ right to be heard because it rejected comments which were irrelevant.
163In the second place, the applicants submit that, in the form prepared by the SRB, it was not possible to address a number of issues, such as the methodological approach, the independence of the Valuer, the assumptions used by the Valuer, the macroeconomic context, the impact of Banco Popular’s liquidation on the other companies in the group, and the scope of the provisions for legal contingencies.
164However, first, the issues mentioned by the applicants were covered by the questions on the form. Question 1 referred to the paragraphs of the preliminary decision which concern the methodology used in Valuation 3; question 3 referred to Section 3.2 of the preliminary decision concerning the appointment of the Valuer and, in particular, the independence of the Valuer; question 4 explicitly concerned the assumptions used by the Valuer; and question 6 concerned the provisions for legal contingencies. Question 7 was an open question which gave the applicants the opportunity to address the macroeconomic context and the impact of Banco Popular’s liquidation on the other companies in the group.
165Second, it is clear from the contested decision and from the Clarification Document that the SRB and the Valuer analysed comments made by the affected shareholders and creditors concerning the issues mentioned by the applicants. The applicants cannot therefore claim that it was not possible to address those issues in the form.
166In that regard, Section 5.1 of the Clarification Document addresses the comments relating to the methodology used by the Valuer, and in particular the comments concerning the assumptions used in Valuation 3; Section 5.2 addresses the comments relating to the macroeconomic context; Section 5.3 addresses the comments relating to the hypothetical liquidation strategy used in Valuation 3 and, in particular, those concerning the various hypothetical scenarios used; Section 5.11 addresses the comments relating to the provisions for legal contingencies; and Section 5.3.4 addresses the comments relating to the impact of Banco Popular’s liquidation on its subsidiaries. As regards the contested decision, Section 6.2.1 addresses the ‘Comments related to the independence of the Valuer’ and Section 6.2.2 addresses the ‘Comments on the content of the Valuation 3 Report’, in particular the comments on the methodology used by the Valuer and on the various assumptions used in Valuation 3, including those concerning the liquidation scenarios. For example, in that section, the SRB addresses the comments relating to the macroeconomic scenario, the impact of Banco Popular's liquidation on the other entities in the group and the provisions for legal contingencies.
167It follows that the applicants have not established that they had been unable to comment on issues which were not covered by any of the questions in the form, and which would have affected the contested decision.
168In the third place, the applicants submit that the form was prepared by the SRB and tailored to its own interests, or that it sought to support the criteria and conclusions of Valuation 3.
169In that regard, the Court cannot but find that the questions on the form were drafted in a neutral manner, in the form of a brief presentation of the issue in question with a reference to the relevant parts of the preliminary decision or of Valuation 3, which was followed by an invitation to the affected shareholders and creditors to submit their comments or opinions on that issue.
170In the fourth place, the applicants and Aeris Invest submit that the SRB infringed their right to be heard by limiting the length of their comments to 5000 characters per question and by not allowing them to attach documents.
171In that regard, the SRB stated in the contested decision that 2855 affected shareholders and creditors had submitted responses on the form, and there were approximately 23822 comments in total.
172The comments submitted by the affected shareholders and creditors during the right to be heard process in response to the form were carefully examined in Section 6 of the contested decision and led the Valuer to adopt the Clarification Document. Thus, even though the length of the comments was limited by the form, the SRB and the Valuer provided detailed responses to those comments.
173Furthermore, the applicants do not indicate which comments, other than those which had been submitted by the affected shareholders and creditors during the right to be heard process and to which the SRB and the Valuer had responded, they had been prevented from making on account of the length of the form. They also fail to specify which documents they would have liked to be able to attach to the form.
174Therefore, the applicants’ argument relating to the limitation of the length of the responses that could be entered on the form is purely theoretical and does not establish to the requisite legal standard that, in the absence of such a limitation, the outcome of the process could have been different.
175As to Aeris Invest’s argument that it was not possible to propose, in response to the form, an alternative valuation methodology, it must be held that it is ineffective. The purpose of the right to be heard process was to gather comments on the preliminary decision and Valuation 3 which could affect the decision that was to be adopted by SRB. Merely putting forward a valuation methodology which is different from that used in Valuation 3 is not, in itself, capable of calling into question the validity of Valuation 3 or, consequently, of affecting the legality of the contested decision.
176The third plea must therefore be rejected.
The fourth plea, alleging infringement of the right to an effective remedy enshrined in Article 47 of the Charter
177The applicants claim that the SRB infringed the right to an effective remedy, enshrined in Article 47 of the Charter, in that it stated that essential parts of Valuation 3 were confidential, which prevented the applicants from bringing the present action with the necessary guarantees and infringed their rights of defence. They complain that the SRB omitted information on the provisions for legal contingencies set out in Valuation 3.
178The applicants submit that the circumstances which led the SRB to adopt the resolution scheme remain unknown, and that the SRB continues to omit information critical to their defence, meaning that they were forced to commission an expert report whilst being at a disadvantage compared to the Valuer, which was able to access information that had not been made public. They claim that the SRB is thus in a privileged position compared with the applicants and infringed the principle of equality of arms.
179The SRB and the Kingdom of Spain contend that this plea is inadmissible. The SRB considers that the applicants are calling into question decisions which are distinct from the contested decision and which are irrelevant for the purposes of the present proceedings. The Kingdom of Spain considers that this plea is based on a general claim which is unjustified.
180In the first place, as regards the principle of effective judicial protection, the first paragraph of Article 47 of the Charter states that everyone whose rights and freedoms guaranteed by EU law are infringed has the right to an effective remedy before a court or tribunal in compliance with the conditions laid down in that article. It follows from the case-law of the Court of Justice that the effectiveness of the judicial review guaranteed by that provision requires, inter alia, that the person concerned is able to defend his or her rights in the best possible conditions and to decide, in full knowledge of the facts, whether it would be useful to bring an action against a given entity before the competent court (see judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 57 and the case-law cited).
181However, as mentioned in paragraph 150 above, it is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed (see judgment of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraph 62 and the case-law cited).
182Such restrictions may, in particular, be designed to protect requirements of confidentiality or professional secrecy, which are liable to be infringed by access to certain information and certain documents (see judgment of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraph 63 and the case-law cited).
183In the event of a conflict of, on the one hand, the interest of the person who is the subject of a measure adversely affecting him or her in having access to the information necessary for him or her to be in a position to exercise fully his or her rights of defence and, on the other hand, the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy, it is for the competent authorities or courts to seek to strike a balance between these opposing interests in the light of the circumstances of each case (see judgment of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraph 69 and the case-law cited).
184Article 88(5) of Regulation No 806/2014 provides:‘Before any information is disclosed, the Board shall ensure that it does not contain confidential information, in particular, by assessing the effects that the disclosure could have on the public interest as regards financial, monetary or economic policy, on the commercial interests of natural and legal persons, on the purpose of inspections, on investigations and on audits. The procedure for checking the effects of disclosing information shall include a specific assessment of the effects of any disclosure of the contents and details of resolution plans as referred to in Articles 8 and 9 [of Regulation No 806/2014], the result of any assessment carried out under Article 10 [of that regulation] or the resolution scheme referred to in Article 18 [of that regulation].’
185First, as regards the non-disclosure of certain information relating to the provisions for legal contingencies set out in Valuation 3, the SRB stated in the contested decision that, in order to publish a non-confidential version of Valuation 3, some of the information had been redacted, pursuant to Article 88(5) of Regulation No 806/2014, to protect the confidential information concerning Banco Popular which was covered by professional secrecy. It pointed out that the extent of the redacted information was restricted to specific individual estimates and statements in Section 4.9 of Valuation 3, relating to provisions for legal contingencies, while information on the nature and the source of the specific claims and the aggregate estimated realisations had not been redacted. The SRB stated that the redacted information was far from being public information and, to a certain extent, was forward looking and that its disclosure could potentially undermine Banco Popular’s rights of defence in ongoing legal proceedings. The SRB stated that, on the basis of the consultation with Banco Popular and balancing the interests of the affected shareholders and creditors with its obligation not to disclose information covered by professional secrecy, the SRB had redacted certain limited information from Section 4.9 of Valuation 3.
186It should also be pointed out that the applicants do not dispute the SRB’s assessment that the redacted information relating to provisions for legal contingencies set out in Valuation 3 was covered by professional secrecy and was confidential. They do not call into question the SRB’s obligation, under Article 88(5) of Regulation No 806/2014, to protect confidential information.
187Moreover, the applicants have not put forward any arguments capable of establishing that their interest in having access to that information should prevail over respect for professional secrecy, and that the information redacted from Valuation 3 on the provisions for legal contingencies is required in order to understand the contested decision or to exercise their right to an effective judicial remedy.
188Second, as regards the argument concerning the non-disclosure of certain information relating to the resolution scheme, it is sufficient to note that the applicants have not established what information they describe as ‘essential’.
189Furthermore, the applicants have not explained to what extent information relating to the resolution scheme, to the file concerning that scheme or to the circumstances which led to its adoption are relevant for the purpose of challenging the contested decision.
190It follows that the applicants’ argument relating to the infringement of the right to an effective remedy must be rejected.
191In the second place, according to the case-law, the principle of equality of arms, which is an integral part of the principle of effective judicial protection of the rights that individuals derive from EU law, enshrined in Article 47 of the Charter, in that it is a corollary, like, in particular, the principle audi alteram partem, of the very concept of a fair trial, implies an obligation to offer each party a reasonable opportunity to present its case, including its evidence, in conditions that do not place it in a clearly less advantageous position by comparison with its opponent (see judgments of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 61 and the case-law cited, and of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 128 and the case-law cited).
192The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the taking of evidence and the adversarial hearing before the court and also those parties’ rights to bring an action. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (see judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 62 and the case-law cited).
193However, it is sufficient to note that, since the procedure which led to the adoption of the contested decision was not a judicial procedure but an administrative one, and the SRB is not a tribunal within the meaning of Article 47 of the Charter, that provision does not apply in the present case and the applicants are not justified in relying on an infringement of the principle of equality of arms (see, by analogy, judgment of 11 May 2017, Deza v ECHA, T‑115/15, EU:T:2017:329, paragraph 213).
194In any event, the applicants cannot claim that they should have access to the same information as the Valuer in order to have a valuation carried out by an expert. A valuation carried out by an expert appointed by the applicants is not provided for in Regulation No 806/2014, and the outcome of such a valuation cannot be binding on the SRB. The applicants cannot therefore claim equal treatment between the Valuer and their experts as regards access to confidential information, and cannot draw the conclusion that the SRB is in a privileged position compared with them in the present proceedings.
195It follows from the foregoing that the fourth plea must be rejected.
The fifth plea, alleging infringement of the right to property enshrined in Article 17 and Article 52(1) of the Charter and in Article 1 of Protocol No 1 to the ECHR
196The applicants claim that the contested decision infringes the right to property of the former shareholders of Banco Popular in so far as they did not receive fair compensation for their loss. They submit that the interference with their right to property did not comply with the requirements laid down in Article 17 of the Charter in that that interference did not take place ‘in the cases and under the conditions provided for by law’. They consider that, although the law provides for the right to receive fair compensation, they did not receive it, even though the expert report annexed to the applications shows that the former shareholders of Banco Popular would have received better treatment under normal insolvency proceedings than they received in the resolution. The applicants consider that, without payment of an amount reasonably related to the value of the assets, deprivation of property constitutes an interference with the right to property enshrined in Article 1 of Protocol No 1 to the ECHR.
197It must be recalled that Article 17(1) of the Charter states the following:‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.’
198The no-creditor-worse-off principle, laid down in Article 15(1)(g) of Regulation No 806/2014, establishes that no creditor will incur greater losses than would have been incurred if the entity under resolution had been wound up under normal insolvency proceedings.
199If, following the valuation carried out under Article 20(16) of Regulation No 806/2014, it is established that the shareholders or creditors suffered greater losses in the resolution than those which they would have incurred during a winding-up under normal insolvency proceedings, Article 76(1)(e) of that regulation provides that the SRB may use the SRF in order to compensate them.
200It follows that Regulation No 806/2014 establishes a mechanism to ensure fair compensation for the shareholders or creditors of the entity under resolution, in accordance with the requirements of Article 17(1) of the Charter (judgment of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 415).
201In the present case, in order to establish any infringement of their right to property resulting from the contested decision, the applicants must show that the SRB made a manifest error of assessment in concluding, on the basis of Valuation 3, that the affected Banco Popular shareholders and creditors would not have received better treatment under normal insolvency proceedings than in the resolution.
202It follows from the rejection of the first four pleas that the applicants have not established the existence of such an error.
203Aeris Invest cannot validly maintain that the SRB infringed Article 17 of the Charter, in so far as the amount of the compensation under the no-creditor-worse-off principle was calculated on the basis of the worst-case scenario for the shareholders, namely proceedings for the liquidation of Banco Popular. It is clear from the analysis of the first part of the first plea that the application of a counterfactual liquidation scenario complies with the applicable provisions.
204In addition, in the fifth plea, the applicants merely submit that the expert report annexed to the applications establishes that the affected shareholders and creditors would have received better treatment under normal insolvency proceedings than they received in the resolution.
205In that regard, it is sufficient to recall that the expert report annexed to the applications, in so far as it contains a valuation of Banco Popular as a going concern, is irrelevant, since it is based on the erroneous assumption that Banco Popular would have been able to continue as a going concern. That report cannot, therefore, in any event, establish that, in the counterfactual scenario of a winding-up under normal insolvency proceedings, Banco Popular’s creditors would have received better treatment than if Banco Popular had been placed under resolution, and that this would have resulted in a difference in treatment requiring compensation.
206Furthermore, Aeris Invest claims that, in order to determine whether compensation is sufficient, for the purposes of Article 17 of the Charter, it is necessary to examine the compensation scheme, as provided for in Regulation No 806/2014, in its entirety. On the one hand, Article 20(11) and (12) of Regulation No 806/2014 provides for compensation calculated on the basis of the net asset value, following a definitive valuation. On the other hand, Article 20(16) and Article 76(1)(e) of that regulation provide for compensation under the no-creditor-worse-off principle. The process consists of those two complementary steps, and compensation under the no-creditor-worse-off principle is not complete without compensation calculated on the basis of the net asset value. In the present case, however, the SRB ruled out the possibility of such compensation on account of the resolution tool used.
207As noted by the SRB, that argument put forward by Aeris Invest is based on a misunderstanding of Regulation No 806/2014. Article 20(12) of Regulation No 806/2014 does not establish a mechanism for compensation, but provides for the modification of resolution actions in the event that the ex post valuation carried out under Article 20(11) of that regulation and the provisional valuation produce different outcomes. Compensation under Article 76(1)(e) of Regulation No 806/2014 and the measures provided for in Article 20(12) of that regulation have different purposes and do not constitute complementary measures.
208Furthermore, the Court of Justice has held that the application of the sale of business tool, which is the resolution tool that was adopted in respect of Banco Popular, is not one of the situations provided for in Article 20(12) of Regulation No 806/2014 in which compensation may be paid following an ex post definitive valuation (judgments of 21 December 2021, Aeris Invest v SRB, C‑874/19 P, EU:C:2021:1040, paragraph 81, and of 21 December 2021, Algebris (UK) and Anchorage Capital Group v SRB, C‑934/19 P, EU:C:2021:1042, paragraph 92).
209In any event, Aeris Invest does not explain to what extent the absence of an ex post definitive valuation under Article 20(11) of Regulation No 806/2014 would have been such as to alter the assessment in the contested decision concerning the absence of compensation for the difference in treatment provided for by Article 76(1)(e) of Regulation No 806/2014.
210Consequently, that argument cannot affect the validity of the contested decision and is ineffective.
211Lastly, contrary to what Aeris Invest submits, the calculation of possible compensation was not carried out a long time after the expropriation date. In accordance with Article 20(18) of Regulation No 806/2014, the Valuer carried out Valuation 3 assuming that Banco Popular would have entered into normal insolvency proceedings at the time when the resolution scheme was adopted, if that resolution scheme had not been effected. The Valuer did not therefore use as a basis the value of Banco Popular subsequent to the resolution.
212Accordingly, the applicants and Aeris Invest have not shown that the SRB’s decision not to grant them compensation under Article 76(1)(e) of Regulation No 806/2014 infringes their right to property.
213It follows from the foregoing that the fifth plea must be rejected.
The request for measures of inquiry
214In their applications and in response to a measure of organisation of procedure, the applicants requested the Court to adopt a measure of inquiry, under Article 88(1) of the Rules of Procedure, ordering a hearing of the author of the expert report annexed to the applications.
215As regards applications made by a party to a dispute for measures of organisation of procedure or measures of inquiry, it must be recalled that the Court is the sole judge of any need to supplement the information available to it in respect of the cases before it (see judgments of 4 March 2021, Liaño Reig v SRB, C‑947/19 P, EU:C:2021:172, paragraph 98 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 435 and the case-law cited).
216It is clear from the case-law of the Court of Justice that, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject matter of the dispute and the need to examine the witnesses named (see judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 118 and the case-law cited; judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 29).
217In the present case, it must be noted that the elements in the case file and the explanations provided during the hearing are sufficient to allow the Court to give a ruling, since it has been able to give a proper ruling on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings, and in the light of the documents lodged by the parties.
218It follows that the applicants’ request for measures of inquiry must be rejected and the action dismissed in its entirety.
Costs
219Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the SRB, in accordance with the form of order sought by the SRB.
220Under Article 138(1) of the Rules of Procedure, Member States and institutions which intervene in the proceedings are to bear their own costs. The Kingdom of Spain must therefore bear its own costs.
221Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) to bear its own costs. In the present case, Aeris Invest, which intervened in support of the applicants in Case T‑302/20 must bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Third Chamber, Extended Composition),hereby:
1.Dismisses the actions;
2.Orders Mr Antonio Del Valle Ruíz and the other applicants whose names are set out in the annex, in Case T‑302/20, Mr José María Arias Mosquera and the other applicants whose names are set out in the annex, in Case T‑303/20, and Calatrava Real State 2015, SL, in Case T‑307/20, to bear their own costs and to pay those incurred by the Single Resolution Board (SRB);
3.Orders the Kingdom of Spain to bear its own costs;
4.Orders Aeris Invest Sàrl to bear its own costs.
Delivered in open court in Luxembourg on 22 November 2023.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.