Contents
Judgment of the General Court (Eighth Chamber, Extended Composition)24 January 2024note(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 2021 ex ante contributions — Obligation to state reasons — Right to be heard — Principle of legal certainty — Right to effective judicial protection — Plea of illegality — Limitation of the temporal effects of the judgment)In Case T‑347/21,Hypo Vorarlberg Bank AG, established in Bregenz (Austria), represented by G. Eisenberger, A. Brenneis and J. Holzmann, lawyers,vSingle Resolution Board (SRB), represented by J. Kerlin, D. Ceran and C. Flynn, acting as Agents, and by B. Meyring, T. Klupsch and S. Ianc, lawyers,supported byEuropean Parliament, represented by J. Etienne, M. Menegatti and G. Bartram, acting as Agents,and byCouncil of the European Union, represented by J. Bauerschmidt, J. Haunold and A. Westerhof Löfflerová, acting as Agents,THE GENERAL COURT (Eighth Chamber, Extended Composition),composed of A. Kornezov, President, G. De Baere, D. Petrlík (Rapporteur), K. Kecsmár and S. Kingston, Judges,Registrar: S. Jund, Administrator,having regard to the written part of the procedure,further to the hearing on 2 March 2023,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/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund (‘the contested decision’), in so far as that decision concerns it.…
III.Forms of order sought
18The applicant claims, in essence, 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.
19The SRB contends that the Court should:– dismiss the action as unfounded;– order the applicant to pay the costs;– in the alternative, if the contested decision is annulled, 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.
20The European Parliament contends that the Court should:– dismiss the action in so far as it is based on the plea of illegality in respect of Directive 2014/59 and of Regulation No 806/2014;– order the applicant to pay the costs.
21The Council of the European Union contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
IV.Law…
B.The pleas in law concerning the legality of the contested decision
1.The second plea in law, alleging infringement of essential procedural requirements on account of the inadequate statement of reasons for the contested decision
145The applicant claims that the contested decision does not satisfy the requirements of the obligation to state reasons arising from the second paragraph of Article 296 TFEU and from Article 41(1) and (2)(c) of the Charter.
146The second plea is divided, in essence, into five parts.
(a)Preliminary observations
147The second paragraph of Article 296 TFEU provides that legal acts are to state the reasons on which they are based. Similarly, the right to good administration enshrined in Article 41 of the Charter provides that the institutions, bodies, offices and agencies of the Union are to give reasons for their decisions.
148The statement of the reasons for a decision of an EU institution, body, office or agency is particularly important in so far as it allows persons concerned to decide in full knowledge of the circumstances whether it is worthwhile to bring an action against the decision and the court with jurisdiction to review it, and it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective (see 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 103 and the case-law cited).
149Such a statement of reasons must be adapted to the nature of the legal act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him to understand the scope of the act concerning him (see, to that effect, 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 104 and the case-law cited).
150In order to examine whether that statement of reasons is sufficient in the case of a decision determining ex ante contributions, it must be recalled, first, that it cannot be inferred from the case-law of the Court of Justice that the statement of reasons for any decision of an EU institution, body, office or agency imposing the payment of a sum of money on a private operator must necessarily include all the evidence enabling the addressee to verify the accuracy of the calculation of the amount of that sum of money (see 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 105 and the case-law cited).
151Second, EU institutions, bodies, offices and agencies are, in principle, required, in accordance with the principle of the protection of business secrets, which is a general principle of EU law, to which concrete expression is given inter alia in Article 339 TFEU, not to disclose to the competitors of a private operator confidential information which that operator has provided (see 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 109 and the case-law cited).
152Third, to take the view that the statement of reasons for the SRB’s decision determining the ex ante contributions must necessarily enable the institutions to verify the accuracy of the calculation of their ex ante contribution would necessarily mean precluding the EU legislature from establishing a method of calculating that contribution which incorporated data the confidentiality of which is protected by EU law and, therefore, reducing unduly the broad discretion which that legislature must have for that purpose by preventing it, inter alia, from opting for a method capable of ensuring the dynamic adjustment of the financing of the SRF according to developments in the financial sector, by taking into account, in particular, the relative financial situation of each institution authorised in one of the Member States participating in the SRF (see 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 118).
153Fourth, although it follows from the foregoing that the SRB’s obligation to state reasons must be weighed, on the basis of the logic of the system of financing the SRF and of the method of calculation laid down by the EU legislature, against the SRB’s obligation to respect the confidentiality of business secrets of the financial institutions concerned, the fact remains that the obligation to respect business secrets cannot be given so wide an interpretation that the obligation to provide a statement of reasons is thereby deprived of its essence (see 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 120).
154However, it cannot be held, when weighing the obligation to state reasons against the principle of the protection of business secrets, that giving reasons for a decision requiring a private operator to pay a sum of money without providing it with all the information needed to verify the exact calculation of the amount of that sum of money necessarily undermines, in every case, the substance of the obligation to state reasons (see 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 121).
155As far as concerns the SRB’s decision fixing the ex ante contributions, the obligation to state reasons must be regarded as fulfilled where the persons concerned by that decision, while not being sent data which are business secrets, have the method of calculation used by the SRB and sufficient information to understand, in essence, how their individual situation was taken into account, for the purposes of calculating their ex ante contribution, relative to the situation of all the other financial institutions concerned (see, to that effect, 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 122).
156In such a case, the persons concerned are in a position to verify whether their ex ante contribution was fixed arbitrarily, in disregard of the reality of their economic situation or through the use of data relating to the rest of the financial sector which are not plausible. Those persons can therefore understand the reasons for the decision calculating their ex ante contribution and assess whether it is worthwhile to bring an action against that decision, so that it would be excessive to require the SRB to disclose each of the figures on which the calculation of the contribution of each institution concerned is based (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 123).
157It follows from the foregoing that the SRB is not, inter alia, required to provide an institution with data enabling it to verify fully the accuracy of the value of the adjusting multiplier, since that verification would require data which are business secrets relating to the economic situation of each of the other institutions concerned (see, to that effect, 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 135).
158However, it is for the SRB to publish or disclose to the institutions concerned, in collective and anonymised form, the information relating to those institutions which was used to calculate that contribution, in so far as that information may be communicated without compromising business secrets (see, to that effect, 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 166).
159That information which must thus be made available to the institutions includes, in particular, the limit values of each ‘bin’ and those of the relevant risk indicators, on the basis of which the institutions’ ex ante contribution was adjusted to their risk profile (see, to that effect, 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 167).
160It is in the light of those considerations that the arguments put forward by the applicant in the context of the second plea must be examined.
(b)The first part, concerning the reasons stated for the determination of the annual target level
161According to the applicant, the reasons for the contested decision are not properly stated as regards the determination of the annual target level. It is, inter alia, unclear why the SRB did not adopt, in the light of the economic repercussions of the COVID-19 pandemic on the banking sector, a lower annual target level, as in previous years.
162In that regard, the SRB simply made stereotypical and general claims and listed indicators to be taken into account when determining the annual target level, without explaining how it had assessed those indicators. In particular, it did not explain how it had assessed the pro-cyclical effects of the ex ante contributions on the financial situation of the institutions and the consequences of that assessment for the determination of the annual target level.
163Therefore, the contested decision does not allow the applicant to assess whether setting the annual target level at one eighth of 1.35%, rather than 1%, of the average amount of covered deposits in 2020, complies with the requirement under the applicable rules, according to which the annual target level must not exceed one eighth of the final target level.
164In response, the SRB contends that, given both the prospective and exhaustive nature of the calculation of the final target level, it necessarily has to rely on certain assumptions and on its expertise in making projections when determining that level in each contribution period. Furthermore, it follows from recitals 43 to 48 of the contested decision that the SRB took due account of the COVID-19 pandemic in its analysis of the phase of the business cycles and of the potential pro-cyclical effects that the ex ante contributions might have on the financial position of the institutions.
165In addition, the applicant disregards the dynamic nature of the final target level, which stems from the fact that the sum of the covered deposits used as the benchmark at the end of the initial period will not, by its very nature, be known until 31 December 2023 and can only be forecasted before that date. In that regard, the reasoning for the contested decision is adequate, even though an exact amount of the final target value is not explicitly stated. It follows from that decision that, from April 2021, covered deposits were to continue to increase until the end of the initial period. It must therefore be clear to the applicant that setting the annual target level at one eighth of 1% of the average amount of covered deposits in 2020 could not have allowed the requirement laid down in Article 69(1) of Regulation No 806/2014 to be met, namely the achievement, by the end of the initial period, of a final target value of at least 1% of covered deposits.
166As a preliminary point, it must be recalled that, in accordance with Article 69(1) of Regulation No 806/2014, by the end of the initial period, the available financial means in the SRF must reach the final target level, which corresponds to at least 1% of the amount of covered deposits of all of the institutions authorised in the territories of all of the participating Member States.
167Under Article 69(2) of Regulation No 806/2014, during the initial period, the ex ante contributions must be spread out in time as evenly as possible until the final target level mentioned in paragraph 166 above is reached, but with due account being taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.
168Article 70(2) of Regulation No 806/2014 states that, each year, the contributions due by all of the institutions authorised in the territories of all of the participating Member States are not to exceed 12.5% of the final target level.
169In relation to the method of calculating the ex ante contributions, Article 4(2) of Delegated Regulation 2015/63 provides that the SRB is to determine their amount on the basis of the annual target level, taking into account the final target level, and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, of all of the institutions authorised in the territories of all of the participating Member States.
170Similarly, under Article 4 of Implementing Regulation 2015/81, the SRB is to calculate the ex ante contribution for each institution on the basis of the annual target level, which must be established having regard to the final target level and in accordance with the methodology set out in Delegated Regulation 2015/63.
171In the present case, as is apparent from recital 48 of the contested decision, the SRB set the amount of the annual target level at EUR 11287677 212.56 for the 2021 contribution period.
172In recitals 36 and 37 of the contested decision, the SRB explained, in essence, that the annual target level was to be determined on the basis of an analysis of the evolution of covered deposits in previous years, any relevant development in the economic situation and an analysis of the indicators related to the phase of the business cycle and the impact that pro-cyclical contributions might have on the financial position of the institutions. Thereafter, the SRB deemed it appropriate to determine a coefficient based on that analysis and on the financial means available in the SRF (‘the coefficient’). The SRB applied that coefficient to one eighth of the average amount of covered deposits in 2020, in order to obtain the annual target level.
173The SRB set out the approach followed to determine the coefficient in recitals 38 to 47 of the contested decision.
174In recital 38 of the contested decision, the SRB found there to be a constant growth trend in covered deposits for all of the institutions in the participating Member States. Specifically, the average amount of those deposits, calculated quarterly, amounted to EUR 6.689 trillion in 2020.
175In recitals 40 and 41 of the contested decision, the SRB presented the forecasted evolution of covered deposits for the three remaining years of the initial period, namely from 2021 to 2023. It estimated that the annual growth rates of covered deposits until the end of the initial period would range between 4% and 7%.
176In recitals 42 to 45 of the contested decision, the SRB presented an assessment of the phase of the business cycle and of the potential pro-cyclical impact the ex ante contributions might have on the financial position of the institutions. To that end, it stated that it had taken into account a number of indicators, such as the Commission’s GDP growth forecast and the European Central Bank’s (ECB) projections in that regard or the private-sector credit flow as a percentage of GDP.
177In recital 46 of the contested decision, the SRB concluded that, while it was reasonable to expect a further growth of covered deposits in the banking union, the pace of that growth would be lower than in 2020. In that regard, the SRB stated, in recital 47 of the contested decision, that it had adopted a ‘conservative approach’ as far as concerned the growth rates of covered deposits in the coming years until 2023.
178In the light of those considerations, in recital 48 of the contested decision, the SRB set the value of the coefficient at 1.35%. It then calculated the amount of the annual target level by multiplying the average amount of covered deposits in 2020 by that coefficient and dividing the result of that calculation by eight, in accordance with the following mathematical formula contained in recital 48 of that decision:‘Target0 [amount of the annual target level] = Total covered deposits2020 * 0.0135 * ⅛ = EUR 11287677 212.56’.
179However, at the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period as follows.
180First, on the basis of a prospective analysis, the SRB determined the amount of covered deposits of all of the institutions authorised in the territories of all of the participating Member States, as forecasted for the end of the initial period, at approximately EUR 7.5 trillion. In arriving at that amount, the SRB took into account the average amount of covered deposits in 2020, that is to say, EUR 6.689 trillion, an annual growth rate of covered deposits of 4% and the number of contribution periods remaining until the end of the initial period, namely three.
181Second, in accordance with Article 69(1) of Regulation No 806/2014, the SRB calculated 1% of those EUR 7.5 trillion to obtain the estimated amount of the final target value to be reached on 31 December 2023, namely approximately EUR 75 billion.
182Third, the SRB deducted from the latter amount the financial means already available in the SRF in 2021, that is to say approximately EUR 42 billion, to obtain the amount still to be collected over the remaining contribution periods before the end of the initial period, namely from 2021 to 2023. That amount stood at approximately EUR 33 billion.
183Fourth, the SRB divided the latter amount by three to spread it evenly over those three remaining contribution periods. The annual target level for the 2021 contribution period was thus set at the amount stated in paragraph 171 above, that is to say, approximately EUR 11.287 billion.
184The SRB also stated at the hearing that it had made public the data which had formed the basis for the method described in paragraphs 180 to 183 above and which allowed the applicant to understand the method by which the annual target level had been determined. In particular, it explained that, in May 2021, that is to say, after the adoption of the contested decision but before the present action was brought, it had published on its website a fact sheet titled ‘Fact Sheet 2021’ (‘the Fact Sheet’), which stated the estimated amount of the final target level. Similarly, the SRB asserted that the amount of the available financial means in the SRF could also be found on its website and via other sources well before the contested decision was adopted.
185In order to examine whether the SRB complied with its obligation to state reasons as regards the determination of the annual target level, it must be recalled first of all that an absence of or an inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited). Accordingly, the Court may, or even must, also take into account failures to state reasons other than those upon which the applicant relies, in particular where those failures come to light in the course of the procedure.
186To that end, the parties’ arguments were heard, in the course of the oral part of the procedure, concerning any failures to state reasons which would vitiate the contested decision as regards the determination of the annual target value. In particular, in response to a number of questions expressly put in that regard, the SRB described, step by step, the methodology which it had actually adopted in order to determine the annual target level for the 2021 contribution period, as set out in paragraphs 180 to 183 above.
187Next, as regards the content of the obligation to state reasons, it follows from case-law that the statement of reasons for a decision adopted by an EU institution or body must, inter alia, not contain contradictions, so that the addressees are able to know the real reasons for that decision, with a view to defending their rights before the court with jurisdiction, and that court can exercise its power of review (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169 and the case-law cited; of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 20 and 45 to 47; and of 16 December 2015, Greece v Commission, T‑241/13, EU:T:2015:982, paragraph 56).
188Similarly, where the author of the contested decision provides certain explanations concerning the reasons for that decision in the course of the procedure before the Courts of the European Union, those explanations must be consistent with the considerations set out in the decision (see, to that effect, judgments of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 45 to 47, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraphs 54 and 55).
189If the considerations set out in the contested decision are not consistent with such explanations provided in the course of the judicial proceedings, the statement of reasons for the decision concerned does not perform the functions identified in paragraphs 148 and 149 above. In particular, such inconsistency prevents the persons concerned from knowing the real reasons for the contested decision, before bringing an action, and from preparing their defence in that regard, and also prevents the Courts of the European Union from identifying the reasons which served as the actual legal basis for that decision and from examining the compatibility of those reasons with the applicable rules.
190Finally, it must be recalled that, when the SRB adopts a decision setting the ex ante contributions, it must inform the institutions concerned of the method of calculation of those contributions (see 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 122).
191The same must apply to the method of determining the annual target level, as that amount is of critical importance in the scheme of such a decision. As is clear from Article 4 of Implementing Regulation 2015/81, the method of calculation of the ex ante contributions consists in apportioning that amount between all of the institutions concerned, with the result that an increase or a reduction in the amount means a corresponding increase or reduction in the ex ante contribution of each of those institutions.
192It follows from the foregoing that, where the SRB is required to provide the institutions, by means of the contested decision, with explanations concerning the method of determining the annual target level, those explanations must be consistent with the explanations provided by the SRB during the judicial proceedings concerning the methodology actually applied.
193However, that is not the situation in the present case.
194It must be observed, first of all, that recital 48 of the contested decision set out a mathematical formula which was presented as forming the basis for the determination of the annual target level. However, it appears that that formula does not incorporate the components of the methodology actually applied by the SRB, as explained at the hearing. As is clear from paragraphs 180 to 183 above, the SRB obtained the amount of the annual target level, using that methodology, by deducting from the final target level the available financial means in the SRF, with a view to calculating the amount still to be collected until the end of initial period and dividing the latter result by three. Those two steps of the calculation are not expressed in the mathematical formula.
195Furthermore, that finding cannot be called into question by the SRB’s assertion that, in May 2021, it published the Fact Sheet, which contained a range indicating the potential amounts of the final target level, and that it made public, on its website, the amount of the available financial means in the SRF. Regardless of whether the applicant was actually aware of those amounts, they were incapable, on their own, of enabling it to understand that the two operations referred to in paragraph 194 above had actually been applied by the SRB, bearing in mind, moreover, that the mathematical formula provided for in recital 48 of the contested decision did not even mention them.
196Similar inconsistencies also affect the way in which the coefficient of 1.35% was determined, despite the fact that it plays a crucial role in the mathematical formula mentioned in paragraph 178 above. That coefficient could be understood as meaning that it is based, amongst other parameters, on the forecasted growth in covered deposits over the remaining years of the initial period. However, as the SRB acknowledged at the hearing, that coefficient was determined so as to be able to justify the result of the calculation of the annual target level, that is to say, after the SRB calculated that amount by following the four steps set out in paragraphs 180 to 183 above and, in particular, by dividing by three the amount obtained from the deduction of the available financial means in the SRF from the final target level. No reference to those steps is made in the contested decision.
197In addition, it must be recalled that, according to the Fact Sheet, the amount of the estimated final target level was in the range of EUR 70 billion to EUR 75 billion. However, that range appears to be inconsistent with the range of the growth rate of covered deposits of between 4% and 7% indicated in recital 41 of the contested decision. The SRB stated at the hearing that, for the purposes of determining the annual target level, it had taken into account a growth rate of covered deposits of 4% – the lowest rate in the second range – and that it had thus arrived at an estimated final target level of EUR 75 billion – the highest value in the first range. There appears to be some inconsistency between those two ranges. On the one hand, the range relating to the rate of evolution in covered deposits also includes values higher than the rate of 4%, the application of which would have resulted in an estimated amount of the final target level greater than those included within the range for that target level. On the other hand, it is impossible for the applicant to understand why the SRB included within the range related to that target level amounts lower than EUR 75 billion. To arrive at such amounts, a rate of below 4% would have to have been applied, but no such rate is included in the range relating to the growth rate of covered deposits. In those circumstances, the applicant was unable to determine how the SRB had used the range relating to the rate of evolution of such deposits to arrive at the calculation of the estimated final target value.
198It follows that, as far as concerns the determination of the annual target level, the methodology actually applied by the SRB, as explained at the hearing, does not correspond to that described in the contested decision, and therefore the real reasons in the light of which that target level was set could not be identified on the basis of the contested decision either by the institutions or by the Court.
199In the light of the foregoing, the contested decision must be found to be vitiated by defective reasoning as regards the determination of the annual target value.
200The first part of the second plea must therefore be upheld. In view of the legal and economic implications of this case, it is however in the interests of the proper administration of justice for the other pleas in law raised in the action to be examined.…
(d)The third part, concerning the reasons stated in the contested decision regarding the non-application of certain risk indicators
212The applicant submits that the contested decision does not provide an adequate statement of reasons as to why certain risk indicators were not applied for the purpose of calculating the ex ante contributions for the 2021 contribution period.
213The SRB did not apply, in that decision, four risk indicators and sub-indicators which are, however, provided for by Delegated Regulation 2015/63 for the purpose of determining the ex ante contributions: the ‘Net Stable Funding Ratio’ indicator (‘the NSFR indicator’), the ‘own funds and eligible liabilities held by the institution in excess of the minimum requirement for own funds and eligible liabilities’ indicator (‘the MREL indicator’) and the ‘complexity’ and ‘resolvability’ sub-indicators.
214Given the lack of sufficient information, it is impossible to ascertain to what extent the non-application of those risk indicators and sub-indicators had a positive or negative impact on the applicant’s ex ante contribution. In any event, the reason why an institution, such as the applicant, should be penalised because another institution has not communicated certain data as required, which resulted in the non-application of the risk indicators and sub-indicators concerned, is unclear.
215The SRB disputes the applicant’s line of argument.
216It must be observed, first of all, that Article 20(1) of Delegated Regulation 2015/63 provides that, ‘where the information required by a specific indicator as referred to in Annex II [to that delegated regulation] is not included in the applicable supervisory reporting requirement referred to in Article 14 [of the Delegated Regulation] for the reference year, that risk indicator shall not apply until that supervisory reporting requirement becomes applicable’.
217In the present case, the SRB stated, in recitals 21 to 29 of the contested decision, that it had not applied the NSFR and MREL indicators or the ‘complexity’ and ‘resolvability’ sub-indicators because, at the time that that decision was adopted, the information required in connection with those risk indicators and sub-indicators was not available in a harmonised form for all of the institutions.
218More specifically, with regard to the NSFR indicator, the SRB stated that ‘no binding harmonised NSFR standard [was] available [in the European Union] and [that it had] therefore been unable to identify proxies at national level’. As for the MREL indicator, the SRB explained that, ‘because MREL related requirements [had] by-and-large been implemented in an incremental manner, [it did] not have data allowing for the implementation of this indicator at the level of each institution contributing to the [SRF]’. As far as concerns the ‘complexity’ and ‘resolvability’ sub-indicators, the SRB set out that ‘the data required for [those sub-indicators were] not available in a harmonised form for all institutions in the participating Member States for the reference year 2019’.
219Such a statement of reasons allows the applicant to understand the reasons why the SRB did not apply the risk indicators and sub-indicators concerned and thus satisfies the requirements set out in the case-law cited in paragraphs 148 and 149 above.
220Furthermore, it follows from the actual wording of Article 20(1) of Delegated Regulation 2015/63 that that provision does not allow the SRB to take account of the impact of not applying a risk indicator on the amount of the ex ante contribution of each institution. Therefore, the applicant cannot criticise the SRB for having failed to include such considerations in the contested decision.
221The third part of the second plea must therefore be dismissed.
(e)The fourth part, concerning the reasons stated in the contested decision regarding certain discretionary choices made by the SRB in the context of setting the parameters for calculating the ex ante contributions
222The applicant claims, in essence, that the statement of reasons for the contested decision is insufficient because it does not specify how the SRB exercised the discretion conferred on it by Delegated Regulation 2015/63 in relation to a number of aspects of the calculation of the ex ante contributions.
223Specifically, the SRB enjoys broad discretion in determining the amount of the IPCs, and the reasons why it limited the share of IPCs to 15% of the amount of the individual ex ante contributions of the institutions concerned are unclear.
224In addition, it follows from Article 6(5) of Delegated Regulation 2015/63 and from recitals 94 to 101, 106, 108 and 112 of the contested decision that the SRB has discretion to define additional risk indicators and to rescale the various risk indicators if some of those indicators are not applied. In that regard, the legal framework does not provide sufficient clarity as to the method of calculating the ex ante contributions or to the decisive criteria of that method.
225The SRB disputes the applicant’s line of argument.
226In this regard, it must be observed that, in recitals 145 to 153 of the contested decision, the SRB set out, in detail, the reasons why it had limited the use of IPCs to 15% of the amount of the individual ex ante contributions of the institutions concerned. In addition, the applicant has not explained how those explanations are inadequate for it to understand the reasons which had led the SRB to impose such a limit. The applicant’s arguments do not, therefore, contain any element capable of demonstrating that insufficient reasons are provided in that regard in the contested decision.
227The same goes for the additional risk indicators, rescaling of the various risk indicators and other aspects of the calculation to which the applicant refers. In recitals 98 to 101 of the contested decision, the SRB explained how it had defined the risk indicators and sub-indicators applied in risk pillar IV. It also set out, in recitals 20 to 29 and 94 to 96 of the contested decision, the reasons why it had considered it necessary not to apply certain risk indicators (see paragraphs 217 and 218 above) and to rescale the various risk indicators as a result. Lastly, the SRB stated, in recitals 108 and 112 of the contested decision, how it had rescaled the raw risk indicators in accordance with ‘Step 3’ in Annex I to Delegated Regulation 2015/63 and how it had applied a positive or negative sign to each risk indicator in accordance with ‘Step 4’ in Annex I to that delegated regulation. The applicant has not explained why the reasons stated in the abovementioned recitals of the contested decision are inadequate.
228Finally, the applicant claims that Delegated Regulation 2015/63 is not sufficiently clear as regards the method of calculating the ex ante contributions and the decisive criteria of that method. Assuming that that complaint can be interpreted as meaning that, by the complaint, the applicant raises a plea of illegality in respect of Articles 4 to 7 and 9 of and Annex I to that delegated regulation, the applicant does not explain how those provisions are unlawful. In that regard, the applicant’s – wholly unsubstantiated – assertion that the Delegated Regulation confers significant discretion on the SRB is insufficient, on its own, to contest the legality of the provisions.
229In those circumstances, the fourth part of the second plea must be dismissed.
(f)The fifth part, concerning the reasons stated in the contested decision regarding other aspects of the calculation of the applicant’s ex ante contribution
230The applicant submits that the contested decision breaches the obligation to state reasons because the manner in which the SRB calculated the applicant’s ex ante contribution is not transparent or comprehensible.
231The SRB disputes the applicant’s line of argument.
(1)The allegedly incomprehensible and unverifiable nature of the calculation of the ex ante contributions
232First, the applicant claims that the contested decision amounts merely to general considerations on the method of collecting data and calculating the ex ante contributions. Thus, the text of that decision does not contain any information related to the actual calculation of the applicant’s ex ante contribution. More specifically, the annexes to that decision contain only final results; this makes the calculation of that contribution incomprehensible and unverifiable. Furthermore, the data contained in those annexes are irrelevant because they are not probative, and they have no explanatory or evidentiary values on account of the inexplicable fluctuations in certain values from one year to the next. As a result, the Court and the national resolution authorities are unable to review the calculation made by the SRB. For instance, in the assessment notice, the Financial Market Supervisory Authority did not give reasons for the calculation of the ex ante contribution, rather it simply referred to the contested decision. Similarly, that authority confirmed that it did not itself understand that decision.
233In that regard, as stated in paragraph 15 above, Annex I to the contested decision contains the applicant’s individual sheet, which sets out not only the common data determined by the SRB by adding or combining the data of all of the institutions but also all of the applicant’s individual data used in the calculation of its ex ante contribution, such as the amount of its basic annual contribution, the values of its risk indicators and its classification in the respective bins depending on those values. In addition, it is clear from Annex II to that decision that the applicant was informed of the number of bins corresponding to each risk indicator and of the limit values of those bins. In accordance with the case-law cited in paragraph 159 above, the applicant was therefore, inter alia, able to verify, in the light of the data in Annex I to the decision, read in conjunction with the data in Annex II to that same decision, whether it had been placed in the correct bins as compared with all of the other institutions.
234This is a fortiori the case since the SRB communicated to the applicant, before the contested decision was adopted, a tool to calculate ex ante contributions so that it could calculate its ex ante contribution in advance. That tool contained, on the one hand, the algorithms used by the SRB to make the preliminary calculations and, on the other hand, the common data determined by the SRB by adding or combining the individual data of all of the institutions concerned. Thus, by entering its individual data in the appropriate fields of the tool, the applicant could calculate, on step-by-step basis, its individual ex ante contribution, in accordance with the preliminary calculations made by the SRB of the ex ante contributions for the 2021 contribution period.
235It is true that, as far as concerns the other institutions’ data used by the SRB in the steps followed to calculate the ex ante contributions, as defined in Annex I to Delegated Regulation 2015/63, which relate to the ‘discretization of the indicators’ (Step 2’), the ‘inclusion of the assigned sign’ (Step 4) and the ‘calculation of the annual contributions’ (Step 6), Annexes I and II to the contested decision contain only the common data determined by the SRB by adding or combining the individual data of all of the institutions concerned. However, it follows from the case-law cited in paragraph 157 above that the SRB is not obliged to provide the institutions with the complete calculation used to obtain those common data, since that would mean disclosing data constituting business secrets related to the economic situation of each of the other institutions concerned.
236Finally, the applicant’s assertion that the data contained in the annexes to the contested decision lack any ‘explanatory or evidentiary value’ because of the allegedly incomprehensible fluctuations, from one year to the next, of certain values cannot succeed. The mere fact that certain values, which are obtained by adding or combining the data of a significant number of institutions, may vary from one year to the next cannot call into question the credibility, for the institutions concerned, of all of the data contained in Annexes I and II to the contested decision.
237Second, the applicant claims that the calculation of its basic annual contribution and its adjusting multiplier is incomprehensible. In that connection, the value of that multiplier is excessively high, despite the applicant’s excellent international ratings, its risk profile which is better than the average of the institutions concerned and its economic model of relatively reduced complexity. Specifically, the applicant cannot understand why the level of its adjusting multiplier calculated on the national base is high, [confidential].note
238In that regard, it must be observed that the value of the adjusting multiplier is determined by a calculation based on the method described in Annex I to the Delegated Regulation 2015/63 and set out in detail both in recitals 93 to 121 of the contested decision and in the applicant’s individual sheet, which forms part of Annex I to that decision. In addition, the applicant has not presented to the Court any specific evidence by which it seeks to demonstrate that that method and the data contained in the recitals to the contested decision or in the individual sheet are incomprehensible or inconsistent.
239In any case, given that the risk indicators, such as those detailed in recitals 93 to 100 of the contested decision, are weighted within each of the four risk pillars and those four risk pillars are themselves weighted, some risk indicators have less weight in the result of the calculation of the adjusting multiplier than others. [confidential] In those circumstances, the applicant is wrong to claim that the value of its adjusting multiplier is inexplicably high.
240Third, the applicant claims that inadequate reasons are stated in the contested decision because that decision does not allow it to understand why its ex ante contribution for the 2021 contribution period increased by [confidential] as compared with that for the 2020 contribution period, whereas the amount of covered deposits in Austria increased by only 5.08%, the amount of the applicant’s covered deposits by only [confidential], the applicant’s risk adjustment indices increased by only [confidential] and the final amount of the ex ante contributions for the banking union as a whole by only 13%, and the applicant’s commercial activities remained the same.
241In that regard, it follows from the case-law cited in paragraph 149 above that it is not necessary for the reasoning for an act of the European Union to go into all the relevant facts and points of law. In particular, the obligation on the SRB to state reasons does not go as far as requiring that it justify the reasons why an ex ante contribution has increased as compared with the previous year.
242Furthermore, it follows from the scheme of the method of calculating the ex ante contributions that the amount of those contributions depends, inter alia, on the amount of covered deposits of all of the institutions authorised in the territories of all of the participating Member States as well as on the risk profile of all of those institutions. Therefore, contrary to what the applicant appears to claim, the increase in its ex ante contribution from one year to the next will not necessarily be in proportion to the increase in covered deposits in Austria, in its covered deposits or in its adjusting multiplier.
243In those circumstances, the exact reasons which led to the increase in the applicant’s ex ante contribution, in spite of the facts to which it refers, cannot be regarded as information without which it is impossible to understand how account was taken of its individual situation for the purpose of calculating its ex ante contribution within the meaning of the case-law cited in paragraphs 150 to 159 above.
244Fourth, the applicant claims that the assignment of the institutions to the bins is incomprehensible and that it gives rise to significant distortions and erroneous results. In particular, the reason why the same number of institutions was not assigned to each bin in the context of the ‘leverage ratio’ is not clarified. The allocation of the institutions to the bins is also incomprehensible as far as concerns the ‘risk weighted assets for market risk divided by CET1’ indicator, which comes under risk pillar IV, because the institutions are again not distributed within that bin in an equal and justifiable manner. The same goes for other risk indicators, such as the ‘risk weighted assets for market risk divided by total assets’ indicator. It is thus impossible to assess conclusively whether the definition of the bins and the allocation of the institutions within those bins were correctly determined by the SRB and whether the applicant’s classification is realistic.
245More specifically, the SRB should have disclosed, potentially in anonymised form, the data of each institution used to calculate the raw indicators, so that the applicant can verify whether institutions which provided comparable data had been assigned to similar bins.
246In that connection, with regard, first of all, to the reasons stated in the contested decision regarding the fact that the same number of institutions was not assigned to each bin for the ‘leverage ratio’ risk indicator, it must be observed that the SRB adequately explained, in recital 106 of the contested decision, the reasons for such an assignment, stating that its purpose was to prevent institutions with the same value for a raw risk indicator being classified in different bins, and therefore institutions with the same value for such an indicator were assigned to the same bin, which could have led to a different number of institutions being classified in each bin.
247Next, in the light of the case-law cited in paragraphs 150 to 159 above, the applicant is incorrect in claiming that the SRB should have allowed it to verify fully the determination of the number of bins and the assignment of the institutions to those bins, since such an approach would mean that data of the other institutions constituting business secrets were communicated to it.
248In that regard, it must be added that, contrary to the applicant’s claims, the SRB is not required to disclose, in respect of each institution concerned, all of the data provided to it by that institution or its assignment to the different bins within each risk indicator, simply by replacing the name of each institution with a pseudonym. As the SRB explained, without being seriously contradicted on that point, such an approach could not guarantee that the institutions could not be identified from the data thus communicated. It cannot be ruled out that some institutions, even if given pseudonyms, might nevertheless be identified on account of the individual data which have already been made public, in particular in the case of large institutions or of Member States with only a few institutions.
249Moreover, the applicant’s complaints regarding other alleged distortions in the allocation by bins within the different risk pillars, even assuming that they were admissible in the light of the case-law cited in paragraphs 27 to 30 above, concern a question of substance rather than one related to the statement of reasons for the contested decision.
(2)The failure to supply the individual data of the other institutions
250The applicant claims that the statement of reasons for the contested decision is inadequate because it does not provide the individual data of the other institutions, without which it is impossible for it to review the calculation of its ex ante contribution. The data communicated by the institutions pursuant to Annex II to Delegated Regulation 2015/63 are not, in reality, confidential data, as they are accessible to the public or are taken from published information, such as those institutions’ financial reports.
251Thus, the SRB has failed to strike a careful balance between the obligation to state reasons and the requirement to protect business secrets, by providing, for example, for an appropriate procedure for the consultation of documents which would have allowed the data used in the calculation of the ex ante contributions to be communicated in full. The applicant therefore asked the Court to require the SRB to produce all of the documents relevant to that calculation.
252In its reply, the applicant takes the view that the SRB failed to comply with the requirements connected with the obligation to state reasons defined by the Court of Justice in 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), because the SRB did not provide it with all of the elements used to calculate its ex ante contribution which it could have disclosed without compromising business secrets. In that regard, the Court of Justice did not provide an exhaustive list of all of the elements which the SRB is required to disclose.
253According to the applicant, it falls, first of all, to the SRB to demonstrate that every item of data which it did not disclose and which is needed to verify the calculation of the ex ante contributions is confidential in nature.
254Next, as far as concerns the protection of business secrets, in the case of some of the data which the SRB did not communicate, there is no risk of harm to the interests of the institutions concerned as a result of the communication of those data. That is the case, for example, with the adjusting multipliers of each institution.
255Furthermore, the data upon which the calculation of the ex ante contributions for the 2021 contribution period is based date to 2019, almost three years before the adoption of the contested decision, meaning that those data have lost any confidentiality. Data reported by the institutions fluctuate considerably from one year to the next and, by virtue of that fact, lack any practical interest when it comes to assessing the institutions’ economic position.
256Lastly, data which do not allow the institutions to be identified, including all of the aggregated data used in the different steps of the calculation of the ex ante contributions, should in any case be disclosed. The SRB could have communicated, inter alia, the total liabilities of each institution and its adjusting multiplier, by removing the name of the institution concerned, without disclosing confidential information. The institutions could thus have made a comparison with other institutions of a similar size, in order to assess whether the risk adjustment reflected their actual economic situation and to verify the allocation of the institutions to the bins.
257In recital 88 of the contested decision, the SRB observed that ‘institutions’ business secrets – namely, all information about the institutions’ business activity that, in case of disclosure to a competitor and/or wider public, could significantly harm the institutions’ interests – [were] considered to be confidential information’. It added that, ‘in the context of the calculation of ex-ante contributions …, the individual information submitted by the institutions via their Data Reporting Forms …, which [were] then relied on for calculating their ex-ante considerations, [were] considered to be business secrets’.
258Furthermore, in recitals 90 to 92 of the contested decision, the SRB stated that it was prohibited from ‘disclosing the institutions’ individual data points, which [were] at the basis of the calculation, in [that] decision’, whereas it was authorised to ‘disclose the institutions’ aggregated and common data points, as that data [was] in collective form’. That said, according to the contested decision, the institutions had ‘complete transparency as to the calculation of their [basic annual contribution] and individual risk-adjustment multiplier’ for the steps in the calculation of that contribution which concerned the ‘calculation of the raw indicators’ (Step 1), the ‘rescaling of the indicators’ (Step 3) and the ‘calculation of the composite indicator’ (Step 5). In addition, the institutions were able to obtain ‘common data points which the [SRB] uses for all risk-adjusted institutions equally’ for the calculation steps relating to the ‘discretization of the indicators’ (Step 2), the ‘inclusion of the assigned sign’ (Step 4) and the ‘calculation of the annual contributions’ (Step 6).
259In that regard, it must be recalled, in the first place, that the very principle of the method of calculating the ex ante contributions, as is apparent from Directive 2014/59 and from Regulation No 806/2014, involves the use, by the SRB, of data constituting business secrets which cannot be reproduced in the statement of reasons for the decision determining the ex ante contributions (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 114).
260In the second place, contrary to the applicant’s claims, the obligation to state reasons does not require the SRB to include, in the contested decision, detailed considerations demonstrating the confidential nature of each category of data provided by the institutions.
261As is clear from the case-law cited in paragraph 149 above, there is no requirement that the reasoning for an act must go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations.
262First, it follows from the considerations contained in recital 88 of the contested decision that the SRB considered that all of the data reported by each institution constituted, in their entirety, business secrets, since the disclosure of those data to a competitor or to the wider public could significantly harm the interests of the institution concerned.
263Second, given that the applicant provided its own data for the purpose of calculating the ex ante contributions, in accordance with Article 14 of Delegated Regulation 2015/63, it was fully aware of the nature and general characteristics of each category of those data. It was thus able, inter alia, to evaluate the extent to which each of those categories of data could include confidential information.
264In those circumstances, the applicant had sufficient information to understand and, where appropriate, contest the reasons why the SRB had considered that the individual data of the other institutions were business secrets. It could, inter alia, challenge, in the light of the nature and general characteristics of each category of data, the SRB’s assessment contained in recital 88 of the contested decision that those data were secret in nature and that their disclosure could significantly harm the interests of the institution concerned. Thus, it had all the information needed to be able to challenge the SRB’s failure to comply with the requirements established by the Court of Justice as regards balancing the obligation to state reasons with the principle of the protection of business secrets, as recalled in paragraphs 155, 158 and 159 above.
265Third, the evidence submitted to the Court by the applicant is not sufficient to show that the individual data of the institutions are not, in reality, confidential data because they are in the public domain.
266In that regard, first, the applicant stated, in support of its argument, that a large volume of data communicated by the institutions is disclosed in the course of the stress tests published by the European Banking Authority (EBA), for example ‘capital-related data (equity, own funds, common equity capital ratio etc.), debt ratio and various exposure amounts (credit risk, securitisation, market risk, business risk etc.). In addition, according to the applicant, the EBA conducts annual EU-wide transparency exercises, as part of which that authority publishes inter alia ‘detailed data of each institution regarding their market position, the exposure amounts [or] the equity ratios’.
267It must, however, be borne in mind that the EU-wide stress test conducted by the EBA in 2018 and the annual transparency exercises, to which the applicant refers, relate only to a restricted number of institutions and to a limited volume of data, far less than the data communicated in the context of the calculation of the ex ante contributions, a fact which the applicant moreover acknowledged at the hearing. Thus, the applicant has not shown that the data published in the context of the EBA’s activities concerned all of the institutions liable to pay the ex ante contributions.
268Second, the applicant referred to the fact that the annual transparency exercises mentioned in paragraph 267 above were intended to supplement the data published by the institutions themselves on the basis, inter alia, of Articles 431 to 455 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) and of Article 106 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338). In that regard, the applicant simply referred to those provisions, without explaining which specific individual data of the institutions used when calculating the ex ante contributions were necessarily, on the basis of those provisions, in the public domain when the contested decision was adopted.
269Furthermore, the applicant has not submitted, let alone demonstrated, that all of the data used to determine at least one risk indicator, the calculation of which meant that several categories of data had to be combined, were in the public domain when the contested decision was adopted.
270Fourth, the fact that the data used to calculate the ex ante contributions for the 2021 contribution period relate to 2019 does not mean that those data were no longer business secrets when the contested decision was adopted. Similarly, it is not established that the disclosure, by means of the contested decision, of all of the data reported by each institution was incapable of compromising business secrets, merely by virtue of the passage of time. In that regard, the simple fact that those data fluctuate from one year to the next does not mean that it is established that those data had lost their confidentiality before the contested decision was adopted.
271Furthermore, it is true that it follows from the case-law of the Court of Justice that, where information that could constitute business secrets at a certain moment in time is at least five years old, it is considered, as a rule, on account of the passage of time, as historical and therefore as having lost its confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties (see, to that effect and by analogy, judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 54 and the case-law cited). However, the data used to calculate the ex ante contributions for the 2021 contribution period were less than three years old when the contested decision was adopted.
272Fifth, with regard to the applicant’s argument that the SRB should have disclosed, in anonymised form, the values of the adjusting multiplier and of the total liabilities of each institution, it follows from the case-law cited in paragraphs 150 to 159 above that, as far as concerns the data of the other institutions, the SRB is required to make available to the institution concerned sufficient information for that institution to be able to understand, in essence, how account was taken of its individual situation, for the purpose of calculating its ex ante contribution, relative to the situation of all of the other institutions. More specifically, it is for the SRB to publish or to disclose to that institution, in aggregated and anonymised form, the information relating to the institutions used to calculate that contribution, in so far as that information can be communicated without compromising business secrets.
273Regardless of whether, when the contested decision was adopted, the values of the total liabilities and of the adjusting multiplier of each institution were business secrets, it must be observed, first, that the total liabilities of each institution is a data point needed for the first step in the calculation of the ex ante contributions, namely the determination of the basic annual contribution in accordance with point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, bearing in mind that that contribution must then be adjusted in line with each institution’s risk profile on the basis of other individual data of the institutions. Second, the adjusting multiplier is an interim value resulting from several steps in the calculation of the ex ante contributions and incorporating all of the risk indicators used by the SRB in that calculation. That multiplier thus represents the overall risk profile of each institution, which is based on all of the risk indicators and which, moreover, has no direct connection with the total amount of the institution’s liabilities.
274In those circumstances, the disclosure of the values of the total liabilities and of the adjusting multiplier of each institution would not have allowed the applicant’s objective to be achieved, namely that of comparing its situation with that of the other institutions of a similar size with a view to verifying the calculation of its risk-adjusted basic annual contribution, without disclosing all of the other individual data of the institutions. Similarly, contrary to what the applicant claims, the disclosure of just those values would not have allowed the bin assignment of the institutions to be verified.
275Accordingly, the value of the adjusting multiplier and of the total liabilities of each institution cannot be regarded as elements without which the institutions cannot understand, in essence, how their individual situation was taken into account relative to the situation of all of the other institutions concerned.
276In the light of the foregoing, the applicant’s argument that inadequate reasons are stated in the contested decision because it does not provide individual data of the other institutions which would allow the calculation of its ex ante contribution to be verified must be rejected.
(3)The disparities between the participating Member States as regards the relationship between the total amount of the ex ante contributions of the Member State’s institutions calculated on the national base and that amount calculated on the union base
277The applicant claims that, as regards the total amount of the ex ante contributions of all of the institutions authorised on the territory of each participating Member State, the contested decision does not provide any justification for the disparities between those Member States in connection with the relationship between, on the one hand, that amount calculated on the national base and, on the other hand, the same amount calculated on the union base. For some of those Member States, the national base amount is higher, to varying degrees, than the union base amount; the opposite is true for other Member States. In addition, it may be presumed, on the basis of an analysis of the aggregated values, that some Member States finance the majority of the contributions calculated on the union base.
278In that regard, it must be observed that the SRB explained, in recital 60 of the contested decision, that, ‘for the calculation of the part of the annual contributions falling into the National Base, … the target used for this calculation [had been] defined on a National Base taking into account only the covered deposits of the credit institutions in the relevant participating Member State’, whereas the data of the institutions authorised in the territories of the other participating Member States had not been taken into account.
279By contrast, according to recital 61 of the contested decision, ‘for the calculation of the part of the annual contributions [falling into the union base] …, the annual target level is defined based on covered deposits of all credit institutions established in the participating Member States’.
280It follows from the foregoing that the disparities and discrepancies to which the applicant refers can be explained by the fact that the calculation of the ex ante contributions on the national base and the calculation of those contributions on the union base are each based on different data. In those circumstances, the obligation on the SRB to state reasons does not go as far as requiring it to provide further explanation of the differences between the calculation of the contributions on the national base and the calculation of the contributions on the union base.
(4)The reasons stated regarding the corrections of the data of the other institutions
281The applicant claims, in essence, that the contested decision does not allow the institutions to verify the impact of the corrections of the data of the other institutions on the calculation of the ex ante contributions for the 2021 contribution period, because the SRB does not disclose, inter alia, the number of institutions which communicated data that were subsequently corrected or the repercussions which the corrections had on the amount of the ex ante contributions. In that regard, the SRB’s calculations are prone to error. Some institutions even stated that they had ‘perhaps’ communicated incorrect data, meaning that the SRB’s calculation is based on inaccurate data. Even though account can be taken of any corrections a posteriori in the subsequent contribution period, the institutions are not informed of such corrections or the reasons for them, thus increasing the opacity of, and the inability to verify, the calculations of the ex ante contributions. Accordingly, the difference between, on the one hand, the amount of those contributions calculated for the 2021 contribution period and adjusted in the case of the newly monitored institutions and, on the other hand, the final amount of those contributions following the deduction of those determined for the 2015 contribution period and the adjustments resulting from the reprocessing and revision of data lacks transparency.
282In that regard, it follows from the case-law cited in paragraphs 150 to 159 above that the contested decision does not necessarily have to include all of the elements enabling its addressee to verify the accuracy of the calculation of its ex ante contribution. In addition, the communication of the corrections made a posteriori relating to other institutions or the grounds for those corrections would entail communicating to the applicant data of the other institutions which constitute business secrets.
283With regard, next, to the lack of information in the contested decision about the number of institutions concerned by such corrections, the applicant has not explained how such information would have been necessary in order for it to understand how its individual situation had been taken into account by the SRB for the purpose of calculating its ex ante contribution for the 2021 contribution period.
284As for the argument relating to the alleged propensity to error in the calculation of the ex ante contributions and the SRB’s use of incorrect data, this is a question of substance rather than one related to the statement of reasons for the contested decision. Furthermore, the applicant has not submitted to the Court any specific evidence which would enable the Court to examine the merits of such an argument.
285In the light of the foregoing, the fifth part of the second plea must be dismissed.
(g)Conclusion on the second plea
286It follows from all of the foregoing that the first part of the third plea must be upheld and the second to fifth parts of that plea dismissed.
2.The third plea, alleging infringement of Article 41(1) and (2)(a) of the Charter because of a breach of the right to be heard
287The applicant submits that the consultation procedure organised by the SRB prior to the adoption of the contested decision did not respect its right to be heard, which is enshrined in Article 41(1) and (2)(a) of the Charter, because that procedure did not allow it to submit observations effectively on the calculation of its ex ante contribution.
288The two-week period during which that procedure took place was insufficient to set out a view on the draft of the contested decision and the aggregated statistics and to verify and analyse those statistics, especially since the data communicated are inadequate for the purpose of verifying the calculation process and the amount of the applicant’s ex ante contribution. In that regard, the data of each institution used as the basis for calculating the common data, which are decisive for the allocation of each institution to the bins and, therefore, for the classification of the institutions according to each risk indicator, were not disclosed. The SRB did not therefore allow the applicant to make known its view on the substantive and legal issues relevant to its ex ante contribution or to verify the accuracy of that contribution. Furthermore, even though, before adopting the contested decision, the SRB made available to the applicant an interactive tool for the calculation of ex ante contributions, that tool likewise does not allow the institutions to assess whether the risk adjustment of those contributions is plausible as compared with all of the other institutions and whether their economic situation was correctly evaluated.
289Furthermore, the consultation procedure was conducted in purely formal terms, as is shown inter alia by the fact that the SRB did not take into account any of the observations submitted by the institutions. The doubts expressed by certain institutions were dismissed, on several occasions, by the SRB by a reference to the legal framework and to the statement of reasons for the contested decision.
290The abovementioned defects are especially serious because the SRB enjoys significant discretion in determining the ex ante contributions, and therefore respect for the right to be heard is of particular importance.
291The SRB disputes the applicant’s line of argument.
292The right to be heard, enshrined in Article 41(2)(a) of the Charter, guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (see judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 87 and the case-law cited).
293Here, before the adoption of the contested decision, the SRB conducted, between 5 and 19 March 2021, a consultation procedure as part of which it communicated a draft of the contested decision to the institutions concerned and invited them, by means of an online form, to submit their comments on the content of that draft.
294In addition, the SRB communicated the following documents to the institutions concerned:– an interactive calculation tool which allowed them to calculate their ex ante contributions for the 2021 contribution period on the basis of the results of the SRB’s interim calculations;– its notice SRB/ES/2021/13 of 3 March 2021 on its preliminary calculation of the ex ante contributions to the SRF for the 2021 contribution period and the launch of consultations with the institutions;– a document entitled ‘Aggregated Statistics’ including the statistics of the calculations relating to all of the institutions in a summary and collective form;– guidance on how to calculate ex ante contributions for the 2021 contribution period using the calculation tool.
295In that context, first, it follows from the case-law cited in paragraphs 150 to 159 above that, contrary to what the applicant claims, the SRB was not required to communicate to it all of the documents and data relating to each institution so as to enable it to verify fully the accuracy of the calculation of its ex ante contribution. In particular, the SRB was not required to communicate to it the documents containing the individual data of the other institutions which constituted business secrets.
296Second, the applicant has not, inter alia, disputed that it was informed of the methodology used to calculate the ex ante contribution for the 2021 contribution period or of the provisional amount of the ex ante contribution payable by it, and therefore it was able to complete the form provided by the SRB and effectively submit its observations in relation to each of the steps of that calculation.
297In those circumstances, there is nothing to show that the applicant did not have access to the elements which formed the basis of the calculation of its ex ante communication and which the SRB was required to communicate to it.
298Furthermore, the applicant was able to set out its view on those elements using the online form mentioned in paragraph 293 above. It could thus submit its observations on the discretionary choices made by the SRB in the calculation of its ex ante contribution, such as the determination of the annual target level or the clarification of certain risk indicators in risk pillar IV, and was able to calculate its provisional ex ante contribution using the calculation tool provided by the SRB.
299In that regard, it follows from the case-law of the Court of Justice that a form provided for the persons concerned to be able to set out their point view to the competent authority is, in principle, such as to allow them to comment in detail on the elements that must be taken into account by the competent authority and to set out, if they think it appropriate, information or assessments different from those already submitted to the competent authority (see, by analogy, judgment of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraphs 39 and 40).
300That is the case here.
301As part of the consultation procedure, the SRB invited the institutions to submit, first, observations on thirteen predefined subjects, which gave them the opportunity to comment on several aspects of the calculation of the ex ante contributions, including the method and the results of that calculation. Second, in the context of subject 14, the institutions could raise any other issue which they deemed relevant to the calculation of the ex ante contribution for the 2021 contribution period which was not already covered by the predefined subjects. The applicant was therefore able to submit observations on each element of that calculation or of the procedure by which that calculation was designed.
302With regard, moreover, to the period prescribed for the submission of observations under the consultation procedure (here: two weeks), first, it must be observed that the applicant has not explained to what extent that period constituted a breach of its right to be heard. In that regard, it has simply asserted that it was ‘utopian’ to assume that the draft decision and the aggregated statistics could be reviewed and analysed within such a brief period of time, without pointing to specific aspects of those documents or to practical difficulties which prevented it from submitting observations, within the prescribed period, on the elements which formed the basis of the calculation of its ex ante contribution, such as those set out in paragraphs 296 and 298 above. The only specific element mentioned by the applicant in that context is the fact that the data communicated by the SRB were inadequate to verify the calculation process and the amount of its ex ante contribution. However, as has been found in paragraphs 295 to 297 above, it has not been demonstrated that the SRB was obliged to communicate to the applicant documents other than those mentioned in paragraph 294 above, and therefore it cannot be established on the basis of that fact that the two-week period was insufficient vis-à-vis the right to be heard.
303Second, the applicant has been subject to the obligation to pay ex ante contributions since 2016, and therefore the 2021 contribution period was the sixth in which it participated. It follows from that fact that, in the course of the consultation procedure conducted by the SRB, it was already well informed about the process of calculating those contributions. In view of that fact, and in the absence of any particular circumstances relied on by the applicant, there is nothing to show that the period prescribed for the submission of observations was insufficient.
304As regards, lastly, the SRB’s response to the observations submitted by the institutions, the applicant has not identified any specific observation to which the SRB did not reply.
305Furthermore, the mere fact that the SRB ultimately decided not to amend the contested decision as compared with the draft decision which it had communicated to the institutions, with a view to acting upon their observations, cannot demonstrate that the consultation procedure infringed the applicant’s right to be heard. As the Court has already held (see, to that effect, judgment of 25 March 2015, Slovenská pošta v Commission, T‑556/08, not published, EU:T:2015:189, paragraph 89), such a fact is a disagreement as to the merits of the SRB’s assessment, but cannot constitute an infringement of those institutions’ right to be heard.
306Accordingly, the applicant’s arguments cannot establish that the applicant was unable to make known its views effectively on all of the points of fact or of law which formed the basis of the contested decision.
307In the light of the foregoing, the third plea must be dismissed.…
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber, Extended Composition)hereby:
1.Annuls Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund, in so far as it concerns Hypo Vorarlberg Bank AG;
2.Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Hypo Vorarlberg Bank, until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of the present judgment, of a new decision of the SRB fixing the applicant’s ex ante contribution to the Single Resolution Fund for 2021;
3.Orders the SRB to bear its own costs and to pay those incurred by Hypo Vorarlberg Bank;
4.Orders the European Parliament and the Council of the European Union to bear their own costs.
Delivered in open court in Luxembourg on 24 January 2024.
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