Contents
Judgment of the General Court (Eighth Chamber, Extended Composition)9 April 2025note(Economic and Monetary Union — Banking Union — Single Resolution Mechanism for credit institutions and certain investment firms (SRM) — Single Resolution Fund (SRF) — Decision of the SRB on the calculation of the 2016 ex ante contributions — Duty to state reasons — Right to be heard — Principle of legal certainty — Right to effective judicial protection — Principle of non-retroactivity — Plea of illegality)In Case T‑336/20,Hypo Vorarlberg Bank AG, established in Bregenz (Austria), represented by G. Eisenberger, A. Brenneis and J. Holzmann, lawyers,vSingle Resolution Board (SRB), represented by D. Ceran and C. Flynn, acting as Agents, and by B. Meyring, T. Klupsch and S. Ianc, lawyers,supported byEuropean Parliament, represented by L. Visaggio, J. Etienne and G. Bartram, acting as Agents,byCouncil of the European Union, represented by J. Bauerschmidt and E. d’Ursel, acting as Agents,and byEuropean Commission, represented by D. Triantafyllou and A. Steiblytė, acting as Agents,THE GENERAL COURT (Eighth Chamber, Extended Composition),composed of A. Kornezov, President, D. Petrlík, K. Kecsmár (Rapporteur), S. Kingston and L. Spangsberg Grønfeldt, Judges,Registrar: S. Jund, Administrator,having regard to the written part of the procedure,further to the hearing on 27 June 2024,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
1By its action under Article 263 TFEU, the applicant, Hypo Vorarlberg Bank AG, seeks the annulment of Decision SRB/ES/2022/79 of the Single Resolution Board (SRB) of 7 December 2022 withdrawing Decision SRB/ES/2020/16 of the SRB of 19 March 2020 on the calculation of the 2016 [ex ante] contributions due by Banco Cooperativo Español SA, Hypo Vorarlberg Bank AG (formerly: Vorarlberger Landes- und Hypothekenbank AG), and Portigon AG to the Single Resolution Fund, and newly calculating their 2016 [ex ante] contributions to the Single Resolution Fund (‘the contested decision’), in so far as it concerns the applicant.
I.Background to the dispute
2The applicant is a credit institution established in Austria.
3By its Decision SRB/ES/SRF/2016/06 of 15 April 2016 on the 2016 [ex ante] contributions to the Single Resolution Fund, the SRB set, pursuant to Article 70(2) 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), the ex ante contributions to the Single Resolution Fund (SRF) (‘the ex ante contributions’) for 2016 (‘the 2016 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation (‘the institutions’), including the applicant.
4By its Decision SRB/ES/SRF/2016/13 of 20 May 2016 on the adjustment of the 2016 [ex ante] contributions to the SRF, supplementing Decision SRB/ES/SRF/2016/06, the SRB corrected the calculation of the ex ante contributions of the institutions for the 2016 contribution period.
5On 19 March 2020, the SRB adopted Decision SRB/ES/2020/16 (‘the decision of 19 March 2020’) by which it replaced the decisions referred to in paragraphs 3 and 4 above (‘the initial decisions’). According to recitals 7 and 8 of the decision of 19 March 2020, the purpose of the decision was to remedy the procedural flaws and the defective statement of reasons of the initial decisions, which the General Court had found to exist in the judgments of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822); of 28 November 2019, Hypo Vorarlberg Bank v SRB (T‑377/16, T‑645/16 and T‑809/16, EU:T:2019:823), and of 28 November 2019, Portigon v SRB (T‑365/16, EU:T:2019:824), annulling the initial decisions in so far as concerned, inter alia, the applicant.
6On 7 December 2022 the SRB adopted the contested decision, by which it withdrew and replaced the decision of 19 March 2020. According to recitals 19 to 22 of the contested decision, the purpose of that decision was to remedy the defective statement of reasons of the decision of 19 March 2020 found to exist by the SRB further to the judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601), as well as the orders of 3 March 2022, SRB v Portigon and Commission (C‑664/20 P, not published, EU:C:2022:161), and of 3 March 2022, SRB v Hypo Vorarlberg Bank (C‑663/20 P, not published, EU:C:2022:162), concerning the calculation of the ex ante contributions for the 2017 contribution period.
7On 20 December 2022, the Finanzmarktaufsichtsbehörde (Financial Markets Supervisory Authority, Austria; ‘the FMA’), in its capacity as the national resolution authority within the meaning of Article 3(1)(3) of Regulation No 806/2014, notified the applicant of the contested decision.
II.Contested decision
8The contested decision consists of the body of that decision together with four annexes, as regards the applicant.
9The body of the contested decision sets out, in Sections 3 to 10, the process for determining the ex ante contributions for the 2016 contribution period; that process applies to all of the institutions.
10More specifically, in Section 6 of the contested decision, the SRB determined the annual target level, to which reference is made in Article 4 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation No 806/2014 with regard to ex ante contributions to the SRF (OJ 2015 L 15, p. 1) for the 2016 contribution period (‘the annual target level’).
11The SRB explained that it had set the annual target level at 1/8 of 1.05% of the amount of covered deposits, calculated at the end of the year, of all of the institutions in 2015, as obtained from data provided by institutions in accordance with Article 14(2) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).
12In Section 7 of the contested decision, the SRB described the method to be used to calculate the ex ante contributions for the 2016 contribution period. In that regard, it stated, in recital 95 of that decision, that, for that period, 60% of the ex ante contributions were calculated on the ‘national base’, that is to say, on the basis of the data communicated by the institutions authorised in the territory of the participating Member State concerned (‘the national base’), in accordance with Article 103 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council (OJ 2014 L 173, p. 190), and in accordance with Article 4 of Delegated Regulation 2015/63. The remainder of the ex ante contributions (40%) was calculated on the ‘banking union base’, that is to say, on the basis of the data communicated by all of the institutions authorised in the territories of all of the participating Member States in the Single Resolution Mechanism (SRM) (‘the union base’ and ‘the participating Member States’), in accordance with Articles 69 and 70 of Regulation No 806/2014 and Article 4 of Implementing Regulation 2015/81.
13Furthermore, the SRB calculated the ex ante contributions of the institutions, such as the applicant, in accordance with the following main stages.
14In the first stage of the calculation of the ex ante contributions, the SRB calculated, in accordance with point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, the basic annual contribution of each institution, which is pro-rata based on the amount of the liabilities of the institution concerned excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. Pursuant to Article 5(1) of Delegated Regulation 2015/63, the SRB deducted certain types of liabilities from the total liabilities of the institution which were to be taken into account in order to determine that contribution.
15In the second stage of the calculation of the ex ante contributions, the SRB adjusted the basic annual contribution in proportion to the risk profile of the institution concerned, in accordance with point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014. It assessed that risk profile on the basis of the four risk pillars set out in Article 6 of Delegated Regulation 2015/63, which are composed of risk indicators. With a view to classifying the institutions according to their level of risk, the SRB began by establishing – for each risk indicator applied for the 2016 contribution period – bins into which the institutions were grouped, in accordance with point 3 of ‘Step 2’ in Annex I to that delegated regulation. Institutions belonging to the same bin were assigned a common value for the particular risk indicator, referred to as the ‘discretized value’. Combining the discretized values for each risk indicator, the SRB calculated the ‘risk-adjusting multiplier’ of the institution concerned (‘the risk‑adjusting multiplier’). By multiplying the basic annual contribution of that institution by its risk-adjusting multiplier, the SRB obtained the ‘risk-adjusted basic annual contribution’ of the institution.
16Next, the SRB added together the risk-adjusted basic annual contributions to get a ‘common denominator’ which was used to calculate the share of the annual target level each institution was to pay.
17Finally, the SRB calculated the ex ante contribution of each institution by distributing the annual target level among all of the institutions on the basis of the ratio between the risk-adjusted basic annual contribution, on the one hand, and the common denominator, on the other.
18Annex I to the contested decision contains the individual sheet of the applicant, which includes the results of the calculation of its ex ante contribution (‘the individual sheet’). That sheet sets out the amount of the basic annual contribution of the applicant as well as the value of its risk-adjusting multiplier, both on the union base and on the national base, stating for each risk indicator the number of the bin to which the applicant was assigned. In addition, the individual sheet sets out data used to calculate the ex ante contributions of all of the institutions concerned, which the SRB determined by adding together or combining the individual data of all of those institutions. Finally, that sheet includes the data reported by the applicant in the reporting form and used in the calculation of its ex ante contribution.
19Annex II to the contested decision contains statistical data relating to the calculation of the ex ante contributions for each participating Member State, in summary and collective form. That annex states, inter alia, the total amount of the ex ante contributions to be paid by the institutions concerned for each of those Member States. Furthermore, the annex lists, for each risk indicator, the number of bins, the number of institutions belonging to each of the bins and the minimum and maximum values of those bins. In the case of the bins relating to the national base, those values are reduced or increased by a random amount for reasons of confidentiality, with the original distribution between the institutions being maintained.
20Annex IIIb to the contested decision examines the submissions made by the applicant in the consultation procedure conducted by the SRB between 24 October and 8 November 2022, prior to the adoption of the contested decision.
III.Forms of order sought
21The applicant claims that the Court should:– annul the contested decision, including the annexes thereto, in so far as that decision concerns it;– order the SRB to pay the costs of the whole proceedings and, in the alternative, in any event, to pay the costs incurred in relation to the decision of 19 March 2020.
22The SRB contends that the Court should:– dismiss in part the modifications of the application as inadmissible and dismiss the action in its entirety as unfounded;– order the applicant to pay the costs;– in the alternative, if the Court takes the view that the contested decision should not have been adopted with retroactive effect, annul that decision only to that extent or annul only Article 4 thereof and maintain the decision as to the remainder;– in the further alternative, if the contested decision is annulled in its entirety, maintain the effects of that decision until it is replaced or, at the very least, for a period of six months from the date on which the judgment becomes final.
23The European Parliament, the Council of the European Union and the European Commission contend that the Court should:– dismiss the action;– order the applicant to pay the costs.
IV.Law
24In the application, the applicant put forward four pleas in law against the decision of 19 March 2020. By the first, second and third pleas, the applicant alleged an infringement of essential procedural requirements on account of the incomplete disclosure of that decision and its defective statement of reasons, as well as the infringement of the right to be heard. By the fourth plea, the applicant raised a plea of illegality in respect of Delegated Regulation 2015/63 and, in the alternative, pleas of illegality in respect of Directive 2014/59 and Regulation No 806/2014.
25In the statement of modification, lodged in accordance with Article 86 of the Rules of Procedure of the General Court, the applicant raises ten pleas in law against the contested decision, based on:– first, infringement of the second paragraph of Article 1 TEU, Articles 15, 296 and 298 TFEU and Articles 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) on account of the failure to disclose the contested decision in its entirety;– second, breach of the principle of legal certainty as a result of the adoption of the contested decision with retroactive effect;– third, that the SRB determined the annual target level contrary to Article 102 of Directive 2014/59, Article 69(1) and (2) and Article 70(2) of Regulation No 806/2014 and Article 3 and Article 4(2) of Delegated Regulation 2015/63, in that the annual target level for the 2016 contribution period is excessive;– fourth, infringement of the second paragraph of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter on account of the inadequate statement of reasons for the contested decision;– fifth, infringement of essential procedural requirements and of the right to an effective remedy enshrined in Article 47 of the Charter and of the second paragraph of Article 296 TFEU and of Article 41(1) and (2)(c) of the Charter, in particular in that the system of ex ante contributions is difficult to understand and the contested decision does not contain an understandable statement of reasons as to the discretion exercised by the SRB;– sixth, infringement of Article 102 of Directive 2014/59, Article 69(1) and (2) and Article 70(2) and (3) of Regulation No 806/2014, Article 4(2), Article 6(2)(a), Article 7(2)(a) and Article 17(3) and (4) of, and Annex I to, Delegated Regulation 2015/63, and the principles of effective judicial protection and proportionality, on the ground that the contested decision does not reflect the factual situation as it existed at the time of its adoption;– seventh, infringement of Article 41(1) and (2)(a) of the Charter on account of the failure to respect the right to be heard;– eighth, a plea of illegality in respect of Articles 4 to 7 and 9 of, and Annex I to, Delegated Regulation 2015/63, alleging infringement of the right to good administration, the right to effective judicial protection, the principle of legal certainty, Articles 16, 17, 20 and 21 of the Charter, the principle of proportionality and Article 290 TFEU;– ninth, a plea of illegality in respect of Article 8(1), (4) and (5) of Implementing Regulation 2015/81, alleging infringement of Article 70(7) of Regulation No 806/2014, read in conjunction with Article 291(2) TFEU, and a plea of illegality in respect of Article 70(7) of Regulation No 806/2014, alleging infringement of Article 291(2) TFEU, read in conjunction with the second paragraph of Article 296 TFEU;– tenth, a plea of illegality in respect of Directive 2014/59 and Regulation No 806/2014, alleging infringement of the second paragraph of Article 1 TEU, Articles 15, 296 and 298 TFEU, Articles 16, 17, 41, 42 and 47 of the Charter, the obligation to state reasons and the principle of legal certainty.
26It is appropriate to examine first of all the pleas by which the applicant raises a plea of illegality, namely the ninth, tenth and eighth pleas, then the pleas relating directly to the legality of the contested decision.
27Furthermore, the SRB contends, first, that the third and ninth pleas, referred to in paragraph 25 above, are inadmissible, on the ground that their submission for the first time in the statement of modification is contrary to Article 86 of the Rules of Procedure and, secondly, that certain other pleas and complaints are inadmissible on the ground that they do not satisfy the conditions laid down in Article 76 of the Rules of Procedure. Those pleas of inadmissibility will be examined below in the order set out in paragraph 26 above.
A.The pleas of illegality
1.The ninth plea, based on pleas of illegality in respect of Regulation No 806/2014 and Implementing Regulation 2015/81
28By the ninth plea, raised for the first time in its statement of modification, the applicant raises pleas of illegality with regard to Regulation No 806/2014 and Implementing Regulation 2015/81. The ninth plea is, in essence, divided into two parts, alleging, first, that Article 8(1), (4) and (5) of Implementing Regulation 2015/81 fails to comply with the limits on the implementing powers laid down in Article 70(7) of Regulation No 806/2014 and Article 291(2) TFEU and, secondly, that Regulation No 806/2014 does not contain a justification for the choice to confer the implementing power provided for in Article 70(7) of that regulation on the Council rather than on the Commission, contrary to Article 291(2) TFEU.
29The SRB, supported by the Council and the Commission, contends that the present plea must be rejected as inadmissible on the ground that it should have been raised at the time the action relating to the decision of 19 March 2020 was brought. Its inclusion, for the first time, in the statement of modification infringes Article 86 of the Rules of Procedure. In any event, it must be rejected as unfounded. In addition, according to the Parliament, the ninth plea is based on grounds which lack clarity.
30At the hearing, the applicant claimed, first, that it could raise, in its statement of modification, any new plea, without limitation, and, secondly, that, as regards the application of Article 8(1) of Implementing Regulation 2015/81, the contested decision contained new factors as compared with the decision of 19 March 2020 which had enabled the applicant, for the first time, to assess the impact of the application of that provision on its individual situation.
31However, the applicant did not claim, at the hearing, that the contested decision contained new factors as compared with the decision of 19 March 2020 as regards the application of Article 8(4) and (5) of Implementing Regulation 2015/81 and Article 70(7) of Regulation No 806/2014.
(a)Admissibility
32First of all, it is appropriate to examine whether, as the applicant claims, Article 86 of the Rules of Procedure must be interpreted as allowing the applicant to raise for the first time, in its statement of modification, any new plea in law, without limitation.
33In that regard, Article 86(1) of the Rules of Procedure provides that, in the version applicable to the statement of modification lodged in the present case, ‘where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor.’ The statement of modification contains, where appropriate, the ‘modified pleas in law and arguments’, as stated in Article 86(4)(b) of those rules.
34It must be borne in mind that, according to the case-law, the forms of order sought by the parties may not, in principle, be altered. Article 86 of the Rules of Procedure is a codification of pre-existing case-law on the admissible exceptions to the principle that the forms of order sought by the parties are unalterable (see judgment of 9 November 2017, HX v Council, C‑423/16 P, EU:C:2017:848, paragraph 18 and the case-law cited).
35The Court of Justice has already held that, as an exception to the principle of unalterability of proceedings, Article 86 of the Rules of Procedure must be interpreted strictly (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 54).
36It is apparent from the wording of Article 86 of the Rules of Procedure that that provision allows the applicant to ‘modify’ its application ‘to take account of [the] new factor’ consisting of the replacement of, or amendment to, the measure initially contested and to submit, to that end, ‘modified’ forms of order sought and, where appropriate, ‘modified’ pleas in law and arguments. Thus, since that provision refers only to a ‘modification’ of the initial application, the purpose of such a modification is limited to the taking into account of new factors linked to the replacement of, or amendment to, the measure initially contested, namely, in particular, new factors set out in the measure replacing or amending the measure initially contested. Accordingly, Article 86 of the Rules of Procedure cannot be interpreted as meaning that the applicant may raise for the first time, in a statement of modification, any new plea in law even when the matters of fact and of law on which it is based were already known to the applicant at the time of lodging the application and they have not been amended in the measure replacing or amending the measure initially contested.
37An interpretation to the contrary, advocated by the applicant, that it could raise for the first time, in its statement of modification, any new plea in law, without limitation, runs counter not only to the wording of Article 86 of the Rules of Procedure, but also to the case-law cited in paragraph 35 above, which requires a strict interpretation of Article 86 of the Rules of Procedure.
38The interpretation adopted in paragraph 36 above is supported by the procedural system to which the statement of modification is subject under the rules laid down in Article 86 of the Rules of Procedure. It follows from those rules that the modification of the application is a continuation of a procedure already in existence, as initially defined by the application initiating proceedings. That is demonstrated, in particular, first, by Article 86(6) of the Rules of Procedure, according to which the written part of the procedure, in the case of a modification of the application, consists of only a single exchange of pleadings.
39Secondly, according to Article 86(7) of the Rules of Procedure, the modification of the application allows interveners to ‘supplement’ their statements in intervention. By contrast, that provision does not allow the submission of new applications to intervene following a modification of the application. Any application to intervene must be submitted within a period of six weeks, which runs from the publication of the application initiating proceedings, in accordance with Article 143(1) of the Rules of Procedure, read in conjunction with Article 79 of those rules, bearing in mind that the modification of the application is not the subject of a notice published in the Official Journal of the European Union. The modification of the application thus forms part of a procedure characterised by the unalterability of the existing parties.
40The interpretation adopted in paragraph 36 above is further confirmed by the legislative context of Article 86 of the Rules of Procedure. That provision forms part, together with Articles 84 and 85, of the same chapter of the Rules of Procedure, entitled ‘Pleas in law, evidence and modification of the application’. Although each of those articles has its own scope, they all form part of the same legislative context consisting, in essence, in safeguarding the principle of the unalterability of proceedings, while providing for exceptions to that principle, the extent of which is strictly limited. Thus, under Articles 84 and 85 of the Rules of Procedure, no new plea in law may be introduced and no evidence produced or offered is to be submitted in the course of proceedings, in principle, unless this is duly justified.
41The conclusion set out in paragraph 36 above is also supported by the teleological interpretation of Article 86 of the Rules of Procedure, which pursues the objectives of due administration of justice and procedural economy, in that it allows the applicant, in the event of replacement of, or amendment to, the measure initially contested by another measure with the same subject matter, to continue the proceedings without being obliged to make a fresh application before the Courts of the European Union (see judgment of 6 March 2024, BSW – management company of ‘BMC’ holding v Council, T‑258/22, not published, EU:T:2024:150, paragraph 52 and the case-law cited).
42Article 86 of the Rules of Procedure thus provides the applicant with a choice between, on the one hand, modifying its application and, on the other, bringing a fresh application for annulment of the measure replacing or amending the measure initially contested. When an applicant decides to continue the proceedings already initiated, by modifying its application on the basis of Article 86, that applicant thus pursues an existing action, subject to the constraints resulting therefrom, as set out in paragraphs 36, 38 and 39 above, while benefiting from the procedural economy provided for by that provision. By contrast, where an applicant decides to bring a fresh application for annulment of the measure replacing or amending the measure initially contested, it will not be subject to those constraints, but will then waive the procedural economy underlying Article 86 of the Rules of Procedure.
43The case-law of the Court of Justice also supports the conclusion set out in paragraph 36 above. The Court of Justice has already held that it was for the General Court, when it examines the admissibility of the statement modifying the application, to ascertain whether the measure challenged by means of the modification of the application has, as compared with the measure challenged by the originating application, substantive differences so that they make it necessary to modify the pleas in law and arguments presented in support of the originating application (judgment of 24 January 2019, Haswani v Council, C‑313/17 P, EU:C:2019:57, paragraph 38). It must be inferred therefrom that the differences between the measure contested by the application initiating proceedings and the measure contested by the modification of the application constitute a relevant factor for the purpose of assessing the admissibility of the statement of modification and, accordingly, of the admissibility of the pleas in law and arguments submitted for the first time in such a statement.
44The foregoing considerations are not called into question by the fact that the Court had the opportunity to regard the modification of the application as a procedural document equivalent to the bringing of an action for annulment by means of an application (see order of 18 July 2016, Arbuzov v Council, T‑195/16, not published, EU:T:2016:445, paragraph 20 and the case-law cited, and judgment of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 70 (not published) and the case-law cited). In that judgment and that order, the statement of modification and the initial application were regarded as equivalent solely for the purpose of assessing, first, the formal and substantive conditions which those measures had to satisfy as they arose, inter alia, from Article 76 of the Rules of Procedure and, secondly, the possibility of lis pendens (see, to that effect, judgment of 7 September 2022, Saure v Commission, T‑448/21, not published, EU:T:2022:525, paragraph 20). By contrast, nothing in those decisions permits the inference that the modification of the application is equivalent, in all other respects, to bringing a fresh application.
45Similarly, in the judgment of 24 May 2023, Meta Platforms Ireland v Commission (T‑452/20, not published, under appeal, EU:T:2023:277, paragraphs 29 and 30), the Court stated, with regard to the admissibility of a head of claim set out in the statement of modification, first, that that head of claim was covered by a head of claim already put forward, in the alternative, in the application initiating proceedings and, secondly, that Article 86 of the Rules of Procedure did not require the applicant to explain specifically why it had decided to formulate a head of claim which was not set out, as such, in the application or why it was unable to formulate that head of claim in the application initiating proceedings against the initial decision. However, in so doing, the Court did not hold that Article 86 of the Rules of Procedure authorised the submission, for the first time, in the statement of modification, of any new plea, without limitation. It merely found that the applicant was under no obligation to provide specific reasons, in its statement of modification, which led it to modify a particular head of claim put forward in that statement.
46Furthermore, it must be stated that none of the cases which gave rise to the case-law cited in paragraphs 44 and 45 above concerned the question whether an applicant was entitled to raise for the first time, in a statement of modification, a plea of illegality under Article 277 TFEU against acts of general application on the basis of which both the decision initially contested and the decision referred to by the statement of modification had been adopted.
47In that regard, it should be noted that such a plea of illegality amends the essential characteristics of the action for annulment, in so far as it is directed against other EU institutions, different from the defendant, which are the authors of the act of general application at issue and whose primary responsibility is to defend the legality of the act at issue. However, those EU institutions are no longer allowed to submit an application to intervene at that advanced stage of the procedure (see paragraph 39 above). The admissibility of such pleas raised for the first time in the statement of modification must therefore be subject to the limits laid down in Article 86 of the Rules of Procedure, as recalled in paragraph 36 above, and cannot be accepted unconditionally, at the risk of undermining, generally and systematically, the rights of defence of the institutions which are the authors of the act of general application which is the subject of such a plea.
48That finding is not called into question by the fact that the authors of the acts which are the subject of the present pleas of illegality, namely the Parliament and the Council, had already intervened in the present case, since it is merely a coincidental matter, whereas the interpretation of Article 86 of the Rules of Procedure is a question of law.
49In the light of all of the foregoing, the Court finds that, under Article 86 of the Rules of Procedure, the applicant may not raise for the first time, in a statement of modification, a plea of illegality against an act of general application even when the matters of fact and of law on which that plea of illegality is based were already known to the applicant at the time of lodging the application and were not amended in the measure replacing or amending the measure initially contested.
50In the present case, the applicant submitted the pleas of illegality in respect of Article 8(1), (4) and (5) of Implementing Regulation 2015/81 and Article 70(7) of Regulation No 806/2014 only in the statement of modification.
51It is therefore necessary to examine whether the matters of fact and of law on which the pleas of illegality referred to in paragraph 50 above are based were already known to the applicant at the time of lodging the application and whether or not they were amended in the measure replacing or amending the measure the annulment of which was initially sought.
52In that regard, it was already apparent from recitals 31 and 32 of the decision of 19 March 2020, the annulment of which the applicant sought in its application initiating proceedings, that the SRB had applied the methodology set out in Article 8(1) of Implementing Regulation 2015/81.
53In the contested decision, the SRB reproduced, in essence, the same reasons, as is apparent from recitals 94 and 95 of that decision, without amending the substance and without adding new factors that are material.
54In so far as the ninth plea in law is based on a plea of illegality in respect of Article 8(4) of Implementing Regulation 2015/81, it is clear that the SRB did not refer to that provision either in the decision of 19 March 2020 or in the contested decision, with the result that it cannot be considered that the contested decision produced any new factor as regards the application of that provision.
55In so far as the ninth plea is based on a plea of illegality in respect of Article 8(5) of Implementing Regulation 2015/81, it should be noted that the SRB reproduced, in recitals 113 and 165 of the contested decision, in essence, the same reasons as those set out in recitals 58, 64 and 65 of the decision of 19 March 2020 regarding that provision.
56As regards the plea of illegality in respect of Article 70(7) of Regulation No 806/2014, alleging that that regulation does not contain a justification for the choice to confer the implementing power on the Council rather than on the Commission, contrary to Article 291(2) TFEU, it must be stated, first, that Article 70(7) of that regulation is not expressly referred to, as the legal basis of Implementing Regulation 2015/81, either in the decision of 19 March 2020 or in the contested decision. Secondly, neither of those two decisions contains details concerning the obligation to provide justification under Article 291(2) TFEU, which is referred to by the applicant in the context of its plea of illegality. It therefore cannot be considered that the contested decision produced any new factor in that regard.
57It follows that the contested decision does not reveal any new factor that is material as regards the application and the interpretation of the contested provisions.
58That finding is not called into question by the applicant’s assertion, at the hearing, that Annex II to the contested decision included statistical data relating to the calculation of the ex ante contributions for each participating Member State, in a summary and collective form, whereas such data for all the participating Member States were not set out in the decision of 19 March 2020. According to the applicant, it was only in the light of those complete data that it could have understood that, pursuant to Article 8(1) of Implementing Regulation 2015/81, the ex ante contributions were calculated in part on a national base and in part on the union base and that it could have understood what effect that could have on the calculation of its individual contribution.
59It is sufficient to note in that regard, first, that it was already apparent from the body of the decision of 19 March 2020 that the ex ante contributions at issue were calculated on a national base and on the union base, in 60% and 40% proportions, respectively. Secondly, as the SRB has rightly stated at the hearing, the decision of 19 March 2020 also included an Annex II containing the amounts used to calculate the ex ante contribution on the national base and on the union base, in so far as those figures were relevant to the applicant’s ex ante contribution. In that regard, it must be stated that those amounts are identical to those set out in the second and third columns on page 1 of Annex II to the contested decision concerning Austria and the annual target level adopted for the purpose of calculating the ex ante contribution for the contribution year at issue.
60As regards the other provisions the legality of which is disputed in the context of the ninth plea, when questioned in that regard at the hearing, the applicant did not identify any specific new factor concerning their application in the contested decision as compared with the decision of 19 March 2020.
61In the light of the foregoing, it must be held that the matters of fact and of law on which the pleas of illegality are based were already known at the time of lodging the application and were not amended in the contested decision.
62Accordingly, the ninth plea must be rejected as inadmissible on the ground that it is out of time.
(b)The Court raising of its own motion the plea of illegality in respect of Regulation No 806/2014 and Implementing Regulation 2015/81
63At the hearing, the applicant submitted that, in any event, the ninth plea had to be regarded as a plea involving a matter of public policy which the Court is required to raise of its own motion, on the ground that, in its judgment of 29 May 2024, Hypo Vorarlberg Bank v SRB (2022 ex ante contributions) (T‑395/22, under appeal, EU:T:2024:333), the Court had upheld, first, the plea of illegality raised by the applicant in that case, against Article 70(7) of Regulation No 806/2014 and, consequently, Implementing Regulation 2015/81, as an act devoid of legal basis, and, secondly, the plea of illegality raised against Article 8(1)(g) of Implementing Regulation 2015/81 on the ground that, by adopting it, the Council had exceeded its implementing powers.
64In that regard, it should be borne in mind that the inapplicability of a provision found indirectly in the context of a plea of illegality acquires the force of res judicata only with regard to the parties to the dispute (see, to that effect, judgments of 21 February 1974, Kortner and Others v Council and Others, 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73, not published, EU:C:1974:16, paragraph 36; of 5 October 2000, Council v Busacca and Others, C‑434/98 P, EU:C:2000:546, paragraph 26; and of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 157 and the case-law cited).
65Thus, the Court declared, in the judgment of 29 May 2024, Hypo Vorarlberg Bank v SRB (2022 ex ante contributions) (T‑395/22, under appeal, EU:T:2024:333, paragraphs 43 and 86), that Article 70(7) of Regulation No 806/2014, Implementing Regulation 2015/81 and, for the sake of completeness, Article 8(1)(g) of that implementing regulation were inapplicable ‘in the present case’, that is to say, in the case which gave rise to that judgment.
66Accordingly, the raising of a plea of illegality of its own motion on the ground that, in another case, the Court upheld a similar plea, duly raised by one of the parties to the dispute, would be tantamount to disregarding Article 277 TFEU, from which it is apparent that the inapplicability of a provision, found indirectly in the context of a plea of illegality, applies only inter partes. An interpretation to the contrary, advocated by the applicant, would result in that provision having a wider effect than that provided for therein, which would run counter to the case-law cited in paragraph 64 above.
67In addition, it is true that it follows from the case-law that the lack of competence of the authority which adopted the measure adversely affecting a party is a ground involving a matter of public policy which must be raised by the Court of its own motion (see judgment of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 45 and the case-law cited). However, that case-law does not apply in the present case. The ninth plea in law does not concern the possible lack of competence of the authority which adopted the measure adversely affecting a party, but the alleged lack of competence of the author of the act of general application on the basis of which the measure adversely affecting a party was adopted.
68According to the case-law, the Court cannot of its own motion raise the question of the possible illegality of the act of general application on the basis of which the measure adversely affecting a party was adopted, since such an illegality is not a matter of public policy (judgment of 27 September 2005, Common Market Fertilisers v Commission, T‑134/03 and T‑135/03, EU:T:2005:339, paragraph 52).
69Accordingly, the Court cannot raise of its own motion, in the present case, the illegality of either Regulation No 806/2014 or Implementing Regulation 2015/81.…
B.The pleas relating to the legality of the contested decision…
1.The third plea in law, alleging infringement of Article 102 of Directive 2014/59, Article 69(1) and (2) and Article 70(2) of Regulation No 806/2014, and Article 3 and Article 4(2) of Delegated Regulation 2015/63, as regards the determination of the annual target level
212The third plea alleges infringement of Article 102 of Directive 2014/59, Article 69(1) and (2) and Article 70(2) of Regulation No 806/2014, and Article 3 and Article 4(2) of Delegated Regulation 2015/63, in that the annual target level for the 2016 contribution period is excessive.
213This plea is, in essence, divided into three complaints.
214In the first place, the applicant claims, in essence, that no provision of the applicable law requires that the final target level correspond to 1% of covered deposits in 2023.
215In the second place, the applicant submits that Article 69(1) and Article 70(2) of Regulation No 806/2014, read in conjunction with Article 4(2) of Delegated Regulation 2015/63, must be understood as meaning that the annual target level cannot exceed 1% of covered deposits in the previous year.
216In the third place, the applicant considers that the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 require that the amount of ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States not exceed 12.5% of the final target level (‘the 12.5% cap’). According to the applicant, it is apparent from the contested decision that the final target level is EUR 56 billion. In so far as approximately EUR 7.01 billion was raised by the SRB for the 2016 contribution period, the 12.5% cap was exceeded.
217The SRB raises a plea of inadmissibility in respect of the three complaints on the ground that their inclusion, for the first time, in the statement of modification, infringes Article 86 of the Rules of Procedure, since all the information on which they are based was already known to the applicant or publicly known at the time the applicant lodged the application. The SRB also disputes the merits of the present plea in law.
(a)The first complaint, alleging that no provision of the applicable law requires that the final target level amount to 1% of covered deposits in 2023
218The applicant submits, in essence, that the SRB determined the final target level by reference to the amount of covered deposits for 2023, whereas it was required to take into account the covered deposits in the year preceding the contribution period.
219In that regard, it should be borne in mind that Article 69(1) of Regulation No 806/2014 provides that, ‘by the end of [the] initial period …, the available financial means of the [SRF] shall reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States.’
220First of all, it is apparent from the wording of Article 69(1) of Regulation No 806/2014 that the date of the end of the initial period is not only decisive for determining the date on which the available financial means of the SRF must reach at least 1% of the amount of covered deposits of all of the institutions authorised in all of the participating Member States, namely the final target level, but also for specifying the amount of those deposits which must be taken into consideration for the purpose of calculating that target level.
221Next, it follows from the travaux préparatoires for Regulation No 806/2014 that, contrary to what the applicant claims, Article 69(1) of that regulation is based on a dynamic approach to the final target level, in the sense that the final target level must be determined in the light of the amount of covered deposits at the end of the initial period. In point 4.3.2 of the explanatory memorandum to proposal COM(2013) 520 final of 10 July 2013, which led to the adoption of Regulation No 806/2014, the Commission explained that the final target level would remain dynamic and that it would increase if the banking sector grows.
222Lastly, the need to take account of changes in the amount of covered deposits is explained by the objective of collecting ex ante contributions, which is to ensure, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, as is apparent from recital 41 of Regulation No 806/2014 (judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113). In turn, according to recital 12 of that regulation, the objective of the SRM is to increase the stability of institutions in participating Member States and to prevent the spill-over of crises into non-participating Member States.
223In that regard, it is apparent from point 4.3.2 of the explanatory memorandum for proposal COM(2013) 520 final that the more the banking sector grows over time, the greater the financial resources that must be made available to the SRF. An estimate of that growth thus makes it possible to predict the amount of the financial means that should be provided to the SRF so that it can be used, in the event of a crisis affecting the banking sector, to finance resolution tools and thus ensure their effective application, in accordance with Article 76(1) of Regulation No 806/2014, read in the light of recital 101 of that regulation.
224In the context of Article 69(1) of Regulation No 806/2014, the EU legislature opted for an approach whereby the amount of covered deposits is used to estimate the size of the banking sector and thus to calculate the financial resources that must be made available to the SRF. From that perspective, any increase in the amount of covered deposits between the beginning and the end of the initial period reflects an increase in the growth in the banking sector, which entails an increase in the financial resources required by the SRF by the end of that period.
225Accordingly, Article 69(1) of Regulation No 806/2014 must be interpreted as meaning that the amount of the final target level, provided for by that provision, must be determined in the light of the amount of covered deposits forecast for the end of the initial period.
226It follows that the first complaint of the present plea must be rejected, without the need to rule on its admissibility.
(b)The second complaint, alleging that the SRB determined the annual target level for the 2016 contribution period at 1/8 of 1.05% of covered deposits in the previous year
227As regards the admissibility of the second complaint, according to which the SRB erred when it determined the annual target level for the 2016 contribution period at 1/8 of 1.05% of covered deposits in the year preceding the 2016 contribution period, namely in 2015, it is apparent both from recital 30 of the decision of 19 March 2020 and from recital 84 of the contested decision that the SRB applied such a coefficient for the 2016 contribution period.
228In the light of the foregoing, pursuant to Article 86 of the Rules of Procedure, it must be held that the matters of fact and law on which the present complaint is based were known to the applicant at the time of lodging the application and that they were not amended in the contested decision, with the result that that complaint must be regarded as inadmissible on the ground that it was out of time.
(c)The third complaint, alleging that the annual contributions for the 2016 contribution period exceed the 12.5% cap
(i)Admissibility
229In accordance with the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, the contributions due by all of the institutions authorised in the territories of all of the participating Member States must not exceed annually 12.5% of the final target level. In order to be able to verify whether the 12.5% cap had been complied with, it was necessary for the applicant to have information on the amount of the final target level. However, no recital of the decision of 19 March 2020 contained such information. Similarly, the SRB has not submitted to the Court any evidence that that information was apparent from publicly accessible material before the application was lodged. By contrast, the contested decision set out, for the first time, in recital 83, the amount of the final target level estimated during the 2016 contribution period, stating that that amount amounted to EUR 56 billion (‘the forecast final target level’).
230It was therefore only on the basis of that new factor, namely the amount of the forecast final target level, which was set out for the first time in the contested decision, that the applicant was able to verify whether the 12.5% cap had been complied with and to claim infringement of the provision referred to in paragraph 229 above.
231In the light of the foregoing, pursuant to Article 86 of the Rules of Procedure, it must be held that the matters of fact and law on which the present complaint is based were not known to the applicant at the time of lodging the application, with the result that that complaint must be regarded as admissible.
(ii)Substance
232It is apparent from paragraph 48 of the judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, under appeal, EU:T:2024:216), that, when the SRB calculates the ex ante contributions for a given contribution period, it must ensure, in accordance with the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, that the amount of the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States does not exceed 12.5% of the forecast final target level. It is also apparent from paragraph 38 of that judgment that that 12.5% cap is applicable during the initial period.
233In support of its line of argument seeking to demonstrate that the 12.5% cap was complied with during the 2016 contribution period, the SRB submits that the amount which should be taken into account for the purposes of that verification is not that of the annual target level, but that which results from the adjustment of that target level and which thus corresponds to the sum of the ex ante contributions actually due by all of the institutions authorised in the territories of all of the participating Member States. It argues that since that sum amounts to EUR 6.43 billion, it represents 11.48% of the forecast final target level, with the result that the 12.5% cap is not exceeded.
234In that regard, first, it is apparent from the wording of the first subparagraph of Article 70(2) of Regulation No 806/2014 that ‘each year’, the SRB is to calculate the individual contributions to ensure that the ‘contributions due by all of the institutions authorised in the territories of all of the participating Member States’ do not exceed 12.5% of the final target level. According to the fourth subparagraph of Article 70(2), the ‘aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States’ is not to exceed ‘annually’ 12.5% of the final target level.
235It must therefore be held that the concept of ‘contributions due’ within the meaning of the first subparagraph of Article 70(2) of Regulation No 806/2014 refers to the amount of the contributions which the institutions are actually required to pay. Similarly, the concept of ‘aggregate amount of individual contributions by all of the institutions’ within the meaning of the fourth subparagraph of that provision refers to the sum of the individual ex ante contributions for which each institution is actually liable.
236Secondly, as regards the context in which the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 were adopted, it is apparent from interinstitutional document 8078/1/14 REV 1 of 27 March 2014, which forms part of the travaux préparatoires for that regulation, that, during the legislative procedure, the Council had proposed to cap annually the contributions ‘due’ by all the institutions at 10% of the final target level. Similarly, while agreeing to increase that cap to 12.5%, the Parliament and the Council maintained that compliance with that cap should be verified in the light of the contributions ‘due’ by all of the institutions. It follows that, during the legislative procedure which led to the adoption of that regulation, capping the amount of the ex ante contributions actually to be paid had been contemplated.
237That interpretation is confirmed by the legislative context of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014. That provision is immediately followed by Article 70(3) of that regulation, which also has as its point of reference the amount of the ex ante contributions actually due. That article thus provides that the share of irrevocable payment commitments that may be granted to institutions is not to exceed 30% of the total amount of ‘contributions raised’, it being thus understood that the calculation of those commitments is made on the basis of the amount of the ex ante contributions that the institutions are actually required to pay.
238Thirdly, it should be borne in mind that the Court has already held that the objective of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 was to cap, for each year taken individually, the amount of the contributions due by all of the institutions authorised in the territories of all of the participating Member States (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraph 54).
239In the light of the foregoing, the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 must be interpreted as meaning that compliance with the 12.5% cap must be verified in the light of the amount of the ex ante contributions actually due by all of the institutions authorised in the territories of all of the participating Member States.
240In the present case, it must be held that, even though, according to recital 84 of the contested decision, the amount of the annual target level was EUR 7007654704, the sum of the ex ante contributions actually due by those institutions, for the 2016 contribution period, was EUR 6423923918. That amount is apparent from the first page of Annex II to the contested decision, from which it is also apparent that that amount takes into account both the ‘deduction of 2015 contributions’ and the ‘adjustments for data restatements and revisions (in accordance with [Article] 17(3) and (4) of [Delegated Regulation 2015/63])’.
241In those circumstances, it must be held that the contested decision set the amount of the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States at an amount which does not exceed the 12.5% cap of the forecast final target level during the 2016 contribution period, as provided for in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014.
242That conclusion is not called into question by the arguments raised by the applicant at the hearing.
243In the first place, the applicant cannot maintain that the contribution for 2015 is an advance on the ex ante contribution for the 2016 contribution period or a ‘credit note’, with the result that it had to be included in that contribution. First, the contribution for 2015 was raised by the Member States on the basis of Article 103 of Directive 2014/59, and therefore prior to the introduction of the system of ex ante contributions by Regulation No 806/2014. Secondly, nothing in that regulation indicates that, for the purpose of applying the 12.5% cap, account should be taken of such a contribution, raised before the introduction of that scheme.
244In the second place, the applicant cannot claim that the interpretation set out in paragraphs 234 and 235 above infringes the principle of equal treatment in that only the institutions which paid a contribution in 2015 could benefit from compliance with the 12.5% cap. In that regard, the applicant has not explained, to the requisite legal standard, whether the infringement of that principle resulted from different treatment of comparable situations or from different situations being treated in the same way. In addition, it follows from the wording of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 that compliance with the 12.5% cap is verified as a whole, in the light of the contributions due by all of the institutions authorised in the territories of all of the participating Member States, with the result that there cannot be a situation in which, for a given contribution period, the cap is complied with for certain institutions and exceeded for others.
245In the light of the foregoing, the third complaint of the present plea must be rejected, as must the third plea in law in its entirety.…
C.Conclusion
367Since none of the pleas in law relied upon by the applicant is well founded, the action must be dismissed in its entirety.…
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 9 April 2025.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.