Contents
Judgment of the General Court (Eighth Chamber, Extended Composition)29 May 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 Single Resolution Board (SRB) on the calculation of the ex ante contributions for the 2022 contribution period — Determination of the annual target level of the SRF — Cap provided for in the first and fourth subparagraphs of Article 70(2) of Regulation (EU) No 806/2014 — Article 291(2) TFEU — Article 70(7) of Regulation (EU) No 806/2014 — Implementing Regulation (EU) 2015/81 — Implementing powers conferred on the Council — Duly justified specific cases — Scope of the implementing powers — Limitation of the temporal effects of the judgment)In Case T‑395/22,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, C. Flynn, D. Ceran, T. Wittenberg and K.‑P. Wojcik, acting as Agents, assisted by B. Meyring and T. Klupsch, lawyers,European Parliament, represented by J. Etienne, G. Bartram and M. Menegatti, acting as Agents,and byCouncil of the European Union, represented by J. Haunold, J. Bauerschmidt 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 8 February 2024,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, Hypo Vorarlberg Bank AG, seeks the annulment of Decision SRB/ES/2022/18 of the Single Resolution Board (SRB) of 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRF) (‘the contested decision’), in so far as that decision concerns it.
Background to the dispute
2The applicant is a credit institution established in Austria.
3By the contested decision, 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 SRF (‘the ex ante contributions’) for 2022 (‘the 2022 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation (‘the institutions’), including the applicant.
4By an assessment notice of 22 April 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, ordered the applicant to pay its ex ante contribution for the 2022 contribution period, as set by the SRB.
Contested decision
5The contested decision consists of the body of that decision, together with three annexes.
6The body of the contested decision sets out the process for determining the ex ante contributions for the 2022 contribution period; that process applies to all of the institutions.
7To that end, first of all, the SRB recalled, in Section 5 of the contested decision, that, at the end of the initial eight-year period from 1 January 2016 (‘the initial period’), the available financial means in the SRF were to reach a target level (‘the final target level’) of at least 1% of the amount of the covered deposits (‘the covered deposits’) of all of the institutions authorised in all of the Member States participating in the single resolution mechanism for credit institutions and certain investment firms (SRM) (‘the participating Member States’).
8Next, in Section 5 of the contested decision, the SRB set 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 Single Resolution Fund (OJ 2015 L 15, p. 1), for the 2022 contribution period (‘the annual target level’). In that regard, the SRB explained that it had taken into account the factors laid down in Article 3 of Commission Delegated Regulation (EU) 2017/747 of 17 December 2015 supplementing Regulation No 806/2014 with regard to the criteria for the calculation of ex ante contributions, and on the circumstances and conditions under which the payment of extraordinary ex post contributions may be partially or entirely deferred (OJ 2017 L 113, p. 2).
9In addition, the SRB explained that it had set the annual target level at one eighth of 1.6% of the amount of the covered deposits of all of the institutions in 2021, as that amount had been obtained from the data communicated by the deposit guarantee schemes pursuant to Article 16 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).
10In Section 6 of the contested decision, the SRB described the method to be used to calculate the ex ante contributions for the 2022 contribution period. In that regard, it stated, in recital 74 of that decision, that, for that period, 6.67% of the ex ante contributions had been calculated on the ‘national base’, that is to say, on the basis of the data communicated by 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 (93.33%) 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 (‘the union base’), in accordance with Articles 69 and 70 of Regulation No 806/2014 and Article 4 of Implementing Regulation 2015/81.
11In Section 6 of the contested decision, the SRB also explained that the institutions, other than those which paid a flat-rate sum in the light of their specific characteristics, were required to pay an ex ante contribution adjusted to their risk profile, which the SRB had set in accordance with the following main stages.
12In the first stage, the SRB calculated, in accordance with point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, the ‘flat 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 (‘net liabilities’), with respect to the net liabilities of all of the institutions authorised in the territories of all of the participating Member States (‘the basic annual contribution’). Pursuant to Article 5(1) of Delegated Regulation 2015/63, the SRB deducted certain types of liabilities from the net liabilities of the institution to be taken into account in order to determine that contribution.
13In the second stage of the calculation of the ex ante contribution, the SRB adjusted the basic annual contribution in line with 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.
14The 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 based on the risk-adjusted basic annual contribution.
Forms of order sought
15The 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.
16The 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.
17The 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 Regulation No 806/2014;– order the applicant to pay the costs.
18The Council of the European Union contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
19In support of its action, the applicant raises eight pleas in law:– alleging, 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;– alleging, second, that the SRB determined the annual target level contrary to the principle of proportionality, 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;– alleging, third and fourth, infringement of the second paragraph of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter on account of the failure to state adequate reasons for the contested decision;– alleging, fifth, infringement of Article 41(1) and (2)(a) of the Charter on account of the failure to respect the right to be heard;– based, sixth, on 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;– based, seventh, on 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 on 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;– based, eighth, on 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.
20It is appropriate to begin by examining the seventh plea in law.
The seventh plea, based on a plea of illegality in respect of Regulation No 806/2014 and Implementing Regulation 2015/81
21By the seventh plea, the applicant raises a plea of inadmissibility in respect of Regulation No 806/2014 and Implementing Regulation 2015/81. That 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 specified in Article 70(7) of Regulation No 806/2014 and Article 291(2) TFEU and, second, 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 European Commission, contrary to Article 291(2) TFEU.
22It is appropriate to begin by examining the second part of the seventh plea.
The second part of the seventh plea, concerning the plea of illegality in respect of Article 70(7) of Regulation No 806/2014
23The applicant submits, in essence, that Article 70(7) of Regulation No 806/2014, in so far as it confers an implementing power on the Council, infringes Article 291(2) TFEU, read in conjunction with the second paragraph of Article 296 TFEU, because that regulation does not set out the reasons why such a conferral constitutes a ‘duly justified specific case’ within the meaning of Article 291(2) TFEU.
24According to the SRB, the Parliament and the Council, recital 114 of Regulation No 806/2014 contains a sufficient justification as regards the conferral on the Council of the implementing power referred to in paragraph 23 above.
25By a measure of organisation of procedure of 18 December 2023 and at the hearing, the Court asked the SRB, the Parliament and the Council to clarify their observations on the extent to which Regulation No 806/2014 contained a sufficient justification regarding the conferral on the Council of the implementing power referred to in paragraph 23 above. In response to that measure of organisation of procedure and to the question put at the hearing, the SRB, the Parliament and the Council repeated their argument that the justification provided in recital 114 of that regulation was sufficient.
26Under Article 291(2) TFEU, where uniform conditions for implementing legally binding EU acts are needed, those acts are to confer implementing powers on the Commission, or, ‘in duly justified specific cases’ and in the cases provided for in Articles 24 and 26 TEU, on the Council.
27With regard more specifically to the requirement to justify the conferral of such powers on the Council, it follows from case-law that Article 291(2) TFEU requires a detailed statement of the reasons why that institution is entrusted with the adoption of measures implementing a legally binding act of the Union (see judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 37 and the case-law cited).
28In that regard, the body which adopted the basic act to be implemented must properly explain, in the light of the nature and content of the basic act, why exception is being made to the rule that it is the Commission that, in the normal course of events, is responsible for exercising the implementing power (see, to that effect, judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 60 and the case-law cited).
29In the present case, Article 70(7) of Regulation No 806/2014 confers on the Council an implementing power within the meaning of Article 291(2) TFEU by authorising it to adopt, within the framework of the delegated acts adopted by the Commission under Article 103(7) of Directive 2014/59, implementing acts to determine the conditions for the implementation of Article 70(1), (2) and (3) of that regulation, in particular in relation to the application of the method of calculating the individual contributions and the practical modalities for allocating to the institutions the risk factors provided for in those delegated acts (‘the implementing power concerned’).
30As regards the two situations envisioned in Article 291(2) TFEU in which an implementing power may be conferred on the Council, it must be observed that the implementing power concerned does not fall within the scope of the cases provided for in Articles 24 and 26 TEU. Therefore, it fell to the EU legislature to justify, in detail and in the light of the nature and content of Regulation No 806/2014, that the conferral of that power on the Council constituted a duly justified specific case within the meaning of Article 291(2) TFEU.
31In that regard, the SRB, the Parliament and the Council contend that Regulation No 806/2014 provided justification for the conferral of the implementing power concerned on the Council in recital 114 thereof, which states as follows:‘The Council should, within the framework of the delegated acts adopted under [Directive 2014/59], adopt implementing acts to specify the application of the methodology for the calculation of individual contributions to the [SRF], as well as the technical modalities for computing the flat contribution and the risk-adjusted contribution. That methodology should ensure that both the flat and the risk-adjusted elements in the formula for the calculation of individual contributions are accounted in a way that is consistent with resolution principles and in line with the delegated acts adopted pursuant to Article 103(7) of [Directive 2014/59]. The methodology should take into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.’
32First of all, it must be observed that that recital does not provide any justification as to why the EU legislature decided to confer the implementing power concerned on the Council. It merely sets out the purpose and the content of the implementing acts to be adopted and the decision to empower the Council to adopt them, without however providing the slightest indication of the reasons why the implementing power was conferred on the Council rather than the Commission for those purposes.
33Such reasons are not apparent, inter alia, from the need, referred to in the second sentence of that recital, to ensure the compatibility of the acts implementing Regulation No 806/2014 with the delegated acts adopted under Article 103(7) of Directive 2014/59. The mere need to ensure such compatibility does not explain why it is the Council, rather than the Commission, which should ensure that compatibility. This is a fortiori the case since such a need is inherent in the exercise of an implementing power, regardless both of the institution which holds that power and whether those delegated acts are adopted by the Commission and not the Council.
34Next, Regulation No 806/2014 does not contain any further reasoning capable of revealing the specific grounds which justified the conferral of the implementing power concerned on the Council. Furthermore, nor has the SRB, the Parliament or the Council relied on the existence of such reasoning in their written pleadings or in the context of the discussions at the hearing, opting simply to refer to recital 114 of that regulation.
35Specifically, as the Council itself notes, recital 24 of Regulation No 806/2014 does not provide any such statement of reasons, since its purpose is to justify the conferral on the Council of the implementing powers provided for in Article 18(7) of that regulation concerning the resolution process, and not the conferral on the Council of the implementing power under Article 70(7) of the Regulation, which is at issue here.
36Recital 24 of Regulation No 806/2014 actually illustrates the lack of justification for opting to confer the implementing power concerned on the Council, stating that, ‘given the considerable impact of the resolution decisions on the financial stability of the Member States and on the Union as such, as well as on the fiscal sovereignty of Member States, it is important that implementing power to take certain decisions relating to resolution be conferred on the Council’. However, a justification of that kind for the conferral on the Council of the implementing power concerned is absent from recital 114 of that regulation, upon which the SRB, the Parliament and the Council rely.
37In addition, although it is possible, in certain circumstances, for the conferral of implementing powers on the Council to be justified by the context in which that conferral is made (see, to that effect, judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 60 to 65), first, it must be observed that the SRB, the Parliament and the Council did not rely, in their written pleadings or in the course of the discussions at the hearing, on any specific factor arising from the context in which Regulation No 806/2014 was adopted which is capable of revealing the reasons which justified the implementing power concerned being conferred on the Council rather than the Commission.
38Secondly, unlike in the case which gave rise to the judgment of 16 July 2014, National Iranian Oil Company v Council (T‑578/12, not published, EU:T:2014:678), upon which the Council relies, there is no reasoning in Regulation No 806/2014 or in any other legislative act of the European Union from which it is apparent that the conferral of the implementing power concerned on the Council was justified by the specific role which that institution was called on to perform in the field of the calculation of the ex ante contributions (judgment of 16 July 2014, National Iranian Oil Company v Council, T‑578/12, not published, EU:T:2014:678, paragraphs 77 to 82, confirmed on appeal by judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 60 to 65).
39In that regard, it must be clarified that the grounds contained in recitals 14 and 15 of Implementing Regulation 2015/81, which concern the progressive mutualisation of the SRF, as provided for in the Intergovernmental Agreement on the transfer and mutualisation of contributions to the SRF, signed in Brussels on 21 May 2014 (‘the Agreement of 21 May 2014’), cannot be relied upon to justify the conferral of the implementing power concerned on the Council. Since the obligation to justify the choice to confer implementing powers on the Council is a matter for the body which adopted the basic act to be implemented, namely, in the present case, the Parliament and the Council under the ordinary legislative procedure, it is not for the Council to provide an ex post justification for the conferral on it of such a power in the context of an implementing act which it subsequently adopts.
40Similarly, assuming that account can be taken, for the purpose of justifying the conferral of that power on the Council, of the Agreement of 21 May 2014, to which Regulation No 806/2014 refers in Articles 1, 67 and 77 thereof, it is sufficient to state that that agreement does not concern the calculation of the ex ante contributions as such and that it thus does not contain factors which would point to a specific role which the Council is called on to perform in the specific field of the calculation of those contributions. Moreover, neither the SRB, nor the Parliament, nor the Council made mention, in their written pleadings or at the hearing, of that agreement as a factor capable of revealing a specific role of that kind.
41Lastly, the Council cannot argue, as it did at the hearing, that the decision of the EU legislature to confer on it the implementing power concerned was motivated by ‘political reasons’. First, such a justification does not appear in recital 114 of Regulation No 806/2014 or in any other recital or provision of that regulation. Second, given its general nature, that explanation does not satisfy the requirements arising from the case-law cited in paragraphs 27 and 28 above, since it is neither detailed nor related to the nature or the content of Regulation No 806/2014.
42In the light of the foregoing, it must be concluded that Regulation No 806/2014 does not contain any justification regarding the conferral of the implementing power concerned on the Council.
43The plea of illegality must therefore be upheld and Article 70(7) of Regulation No 806/2014 declared inapplicable in the present case pursuant to Article 277 TFEU. Accordingly, Implementing Regulation 2015/81, which was adopted by the Council on the basis of that provision and of which the contested decision is an implementing measure, is likewise inapplicable in the present case.
44That being the case, and in the interest of the proper administration of justice, it is also necessary to examine the first part of the seventh plea, in so far as it concerns the plea of illegality in respect of Article 8(1) of Implementing Regulation 2015/81, and the second plea regarding the determination of the annual target level.
The first part of the seventh plea, in so far as it concerns the plea of illegality in respect of Article 8(1) of Implementing Regulation 2015/81
45The applicant claims that an implementing act adopted pursuant to Article 291(2) TFEU can only specify the legal framework defined by the EU legislature and can neither amend nor supplement the legislative act concerned, even in relation to the non-essential elements of that act. However, Article 8(1) of Implementing Regulation 2015/81 does not simply specify the content of Regulation No 806/2014, but rather supplements that regulation, in that it alters the method of calculating the ex ante contributions introduced by that same regulation.
46The SRB and the Council contest the applicant’s line of argument. They contend that it follows, inter alia, from recitals 14 and 15 of Implementing Regulation 2015/81 that Article 8(1) of that implementing regulation merely adjusts the framework defined by Regulation No 806/2014 and that it neither amends nor supplements that regulation. In their view, the purpose of Article 8(1) of Implementing Regulation 2015/81 is to ensure the uniform application of the provisions of Article 103 of Directive 2014/59 and of Article 70(2) of Regulation No 806/2014, in order to avoid distortions between banking sector structures of the Member States. According to the SRB and the Council, such distortions would have been triggered by the significant gap between the amount of the ex ante contributions as set under the method introduced by Regulation No 806/2014 and the amount of those contributions that the institutions would have had to pay under the national legislation transposing Directive 2014/59. In the SRB’s view, such distortions could, in addition, arise where there is a discrepancy between, on the one hand, the ex ante contributions set pursuant to Regulation No 806/2014 and, on the other hand, the resolution financing potentially accessible to the institutions concerned during the initial period, under the rules on the progressive mutualisation of the SRF, as is apparent from recitals 13 and 14 of Implementing Regulation 2015/81.
47In that regard, it must be recalled that Implementing Regulation 2015/81 is based on Article 70(7) of Regulation No 806/2014, which authorises the Council to adopt implementing acts to determine the conditions for the implementation of Article 70(1), (2) and (3) of that regulation, and that Article 70(7) of Regulation No 806/2014 applies Article 291(2) TFEU (see paragraph 29 above).
48In those circumstances, the implementing power conferred on the Council is delimited both by Article 291(2) TFEU and by Article 70(7) of Regulation No 806/2014 (see, to that effect and by analogy, judgment of 22 March 2023, Tazzetti v Commission, T‑825/19 and T‑826/19, EU:T:2023:148, paragraph 155).
49As regards the limits of the implementing powers under Article 291(2) TFEU, it follows from case-law that those powers entail, in essence, the power to adopt measures which are necessary or appropriate for the uniform implementation of the provisions of the legislative act on the basis of which they are adopted and which merely specify the content of that act, in compliance with the essential general aims pursued by that act, without amending or supplementing it, in its essential or non-essential elements (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 49).
50In particular, an implementing measure merely specifies the provisions of the legislative act concerned where it is intended solely, in general or in certain specific cases, to clarify the scope of those provisions or to determine the detailed rules for their application, provided, however, that in so doing, that measure avoids any contradiction with the objectives of those provisions and does not in any way alter the normative content of that act or its scope of application (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 50).
51Therefore, in order to determine whether, in adopting an implementing measure, the Commission or the Council complied with the limits of the implementing powers conferred on them, pursuant to Article 291(2) TFEU, by a legislative act, it is necessary to ascertain whether such a measure, first, respects the essential general objectives of that legislative act and, in particular, those of the provision of that act concerned by that implementing measure, second, is necessary or appropriate for the uniform implementation of that provision and, third, neither supplements nor amends the provision in any way (judgment of 28 February 2023, Fenix International, C‑695/20, EU:C:2023:127, paragraph 51).
52In the present case, the applicant does not submit that Article 8(1) of Implementing Regulation 2015/81 infringes the first and second conditions set out in paragraph 51 above. However, it does claim that that provision fails to satisfy the third condition referred to in that paragraph, because the provision does not simply specify the content of Regulation No 806/2013 but rather supplements it. Accordingly, it is necessary to examine whether Article 8(1) of Implementing Regulation 2015/81 satisfies that third condition.
53With regard to the scope of that examination, it must be observed that the provisions of Article 8(1) of Implementing Regulation 2015/81 do not seek to define the conditions for the implementation of Article 70(3) of Regulation No 806/2014, which concerns irrevocable payment commitments, and therefore the examination of this plea of illegality must be limited to the question of whether, by adopting Article 8(1) of Implementing Regulation 2015/81, the Council exceeded the limits of the implementing power conferred on it for the purpose of implementing Article 70(1) and (2) of Regulation No 806/2014.
54It is therefore necessary to examine whether Article 8(1) of Implementing Regulation 2015/81 simply specifies the content of Article 70(1) and (2) of Regulation No 806/2014 or whether it supplements that provision, as the applicant submits.
55In the first place, it must be noted that, under Article 70(1) of Regulation No 806/2014, the ex ante contribution of each institution is to be calculated pro-rata to the amount of its net liabilities, with respect to the aggregate net liabilities of all of the institutions authorised in the territories of all of the participating Member States.
56Points (a) and (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014 state that the calculation of the ex ante contribution of each institution is to be based on two components, namely, first, the basic annual contribution, which is pro-rata based on the amount of the institution’s net liabilities, with respect to the total liabilities of all of the institutions authorised in the territories of all of the participating Member States and, second, the risk-adjusted contribution, which is to be based on the criteria laid down in Article 103(7) of Directive 2014/59, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.
57Article 4 of Implementing Regulation 2015/81 provides as follows:‘For each contribution period, the Board shall calculate the annual contribution due from each institution, on the basis of the annual target level of the [SRF] … The annual target level shall be established with reference to the target level of the [SRF] referred to in Articles 69(1) and 70 of [Regulation No 806/2014] and in accordance with the methodology set out in [Delegated Regulation 2015/63].’
58As for Article 8(1) of Implementing Regulation 2015/81, under the heading ‘Specific adjustments in the initial period’, it provides that, by way of derogation from Article 4 of that implementing regulation, the ex ante contributions of the institutions during the initial period are to be calculated in accordance with an ‘adjusted methodology’. The provision specifies, for seven of the eight years of the initial period, a proportion of the ex ante contributions that is calculated on the national base, namely in accordance with Article 103 of Directive 2014/59 and Article 4 of Delegated Regulation 2015/63, and a proportion of those contributions that is calculated on the union base, namely in accordance with Articles 69 and 70 of Regulation No 806/2014 and Article 4 of Implementing Regulation 2015/81.
59Article 8(1) of Implementing Regulation 2015/81 thus provides, in essence, that, year on year, an ever decreasing share of the ex ante contributions is to be calculated on the national base, whereas an ever greater share of those contributions is to be calculated on the union base.
60With regard specifically to the 2022 contribution period, which is at issue in the present case, Article 8(1)(g) of Implementing Regulation 2015/81 provides, more specifically, that, ‘by way of derogation from Article 4 of [Implementing Regulation 2015/81]’, the institutions are to contribute ‘6.67% of their annual contributions calculated in accordance with Article 103 of [Directive 2014/59] and Article 4 of [Delegated Regulation 2015/63], and 93.33% of their annual contributions calculated in accordance with Articles 69 and 70 of [Regulation No 806/2014] and Article 4 of [Implementing Regulation 2015/81]’.
61In that regard, it must be observed that, first, it follows from the very wording of Article 70(1) and point (a) of the second paragraph of Article 70(2) of Regulation No 806/2014 that the method of calculating the basic annual contribution of the institutions concerned, which was introduced by that provision, is based on the pro-rata determination of the net liabilities of each institution with respect to the total net liabilities of all of the institutions authorised ‘in the territories of all of the participating Member States’. Thus, under those provisions of Regulation No 806/2014, the data from all of the institutions authorised in the territories of all of the participating Member States are taken into account for the purpose of calculating the ex ante contribution of each institution, at the very least as regards the first component of that contribution, that is to say, the basic annual contribution.
62Second, under those same provisions, the method of calculation introduced by Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014, and in particular the rule determining the data base to be taken into account for the purpose of that method, applies in its entirety to each year of the initial period, including the 2022 contribution period.
63However, the very purpose of the ‘adjusted methodology’ introduced by Article 8(1) of Implementing Regulation 2015/81 is to provide that a proportion of the ex ante contributions is to be calculated, for almost the entirety of the initial period, in accordance with a different data base from that provided for in Article 70(1) and point (a) of the second paragraph of Article 70(2) of Regulation No 806/2014.
64Thus, in accordance with Article 8(1) of Implementing Regulation 2015/81, read in conjunction with Article 103 of Directive 2014/59, for the purpose of calculating a proportion of the ex ante contributions for that period, only the data communicated by institutions which are authorised on the territory of the participating Member State concerned are taken into account, to the exclusion of those communicated by institutions authorised in the territories of the other participating Member States, whereas, under the method of calculation introduced by Article 70(1) and point (a) of the second paragraph of Article 70(2) of Regulation No 806/2014, it is specifically those data relating to the institutions authorised in the territories of the other participating Member States which are also taken into account for the purpose of calculating the basic annual contribution.
65It follows that Article 8(1) of Implementing Regulation 2015/81 changes the method of calculating the ex ante contributions, as provided for in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014, in particular as regards its first component that serves to calculate the basic annual contribution, by altering the data base to be taken into account in the context of that method and, accordingly, the very basis of the method.
66As a result, as the Council moreover acknowledged at the hearing, the amounts of the ex ante contributions of the institutions such as the applicant, which are calculated in accordance with the ‘adjusted methodology’ introduced by Article 8(1) of Implementing Regulation 2015/81, are necessarily different from those which would have resulted from the application of the method established in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014.
67The extent of the alteration mentioned in paragraph 65 above is exacerbated by the fact that Article 8(1) of Implementing Regulation 2015/41 derogates from the method provided for in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014 in relation to seven of the eight years of the initial period, and therefore that method is deprived of its full effects for almost the entirety of that period.
68In the second place, as follows from Article 70(7) of Regulation No 806/2014, the Council is indeed authorised to implement Article 70(2) of that regulation, which provides, in point (b) of the second paragraph thereof, that the risk-adjusted contribution must be based on the criteria laid down in Article 103(7) of Directive 2014/59, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.
69However, the objective pursued by Article 8(1) of Implementing Regulation 2015/81, which seeks to avoid distortions between banking sector structures of the Member States, such as those summarised in paragraph 46 above, relates to whether the implementing act at issue complies with the essential general objectives of the legislative act and whether it is necessary or appropriate to facilitate the uniform implementation of that act. That question thus concerns the first and second conditions recalled in paragraph 51 above, in order to determine whether, in adopting an implementing measure, the Council complied with the limits of the implementing powers which had been conferred on it, pursuant to Article 291(2) TFEU, by a legislative act. However, as recalled in paragraph 52 above, the applicant does not claim that Article 8(1) of Implementing Regulation 2015/81 fails to comply with those conditions in so far as that provision seeks to avoid distortions between banking sector structures of the Member States, rather it argues that the provision supplements the normative content of the legislative act, thereby failing to satisfy the third condition recalled in paragraph 51 above.
70With regard to that third condition recalled in paragraph 51 above, it follows from the considerations reproduced in paragraphs 49 and 50 above that, when the institution concerned adopts implementing measures on the basis of Article 291(2) TFEU, it is to confine itself to specifying the basic act without altering its normative content. Thus, assuming that, by Article 8(1) of Implementing Regulation 2015/81, the Council sought to avoid distortions between banking sector structures of the Member States, it was required to comply with the limits imposed on the implementing power which had been conferred on it, by simply specifying the method of calculating the ex ante contributions provided for in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014 and refraining from altering the normative content of that provision as far as that method was concerned.
71However, in the present case, as is apparent from paragraphs 55 to 67 above, the ‘adjusted methodology’ under Article 8(1) of Implementing Regulation 2015/81 amends the method of calculating the ex ante contributions, as provided for in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014. In those circumstances, the introduction of such a method cannot be justified by the legitimate objective of seeking to avoid distortions between banking sector structures of the Member States.
72Accordingly, the objective set by the EU legislature, as expressed in point (b) of the second paragraph of Article 70(2) of Regulation No 806/2014, of avoiding distortions between banking sector structures of the Member States cannot be understood as authorising the Council to amend, in an implementing act, the very basis of the method of calculating those contributions, as set out inter alia in Article 70(1) and point (a) of the second paragraph of Article 70(2) of that regulation.
73In the third place, in so far as the SRB and the Council rely, more specifically, on the need to ensure a uniform application of the provisions of Article 103 of Directive 2014/59 and Article 70(2) of Regulation No 806/2014 so as to enable, over the initial period, the transition between calculations based on the method provided for in Directive 2014/59 and the method based on Regulation No 806/2014, it must be recalled that the calculation of the ex ante contributions to the SRF, which must be paid by the institutions falling within the scope of Regulation No 806/2014 such as the applicant, is governed by Article 70 of that regulation and not by Article 103 of Directive 2014/59, which concerns the ex ante contributions to the national resolution financing arrangements.
74Furthermore, the Council acknowledged at the hearing that, if Article 8(1) of Implementing Regulation 2015/81 had not been adopted, the ex ante contribution for the 2022 contribution period of the institutions such as the applicant would have to have been calculated solely on the basis of the method provided for in Article 70(1) and the second paragraph of Article 70(2) of Regulation No 806/2014 and, therefore, taking into account the data from all of the institutions authorised on the territories of all of the participating Member States.
75It is true that, under point (b) of the second paragraph of Article 70(2) of Regulation No 806/2014, the risk adjustment of the ex ante contributions pursuant to that provision must be ‘based on the criteria laid down in Article 103(7) of [that directive]’. In addition, under Article 70(7) of that regulation, the Council is to adopt implementing acts ‘within the framework of the delegated acts’ adopted by the Commission pursuant to Article 103(7) of Directive 2014/59 in order to specify the concept of the risk adjustment of the institutions’ contributions. However, those provisions of Regulation No 806/2014 refer only to the concept of the risk adjustment of the ex ante contributions provided for in Article 103(7) of Directive 2014/59. Thus, Article 70(2) and (7) of Regulation No 806/2014 does not refer inter alia to Article 103(2) of that directive or to the method of calculation as such of those contributions introduced in Article 103(2) of the Directive, which consists in account being taken solely of the data from the institutions authorised in the territory of the Member State concerned.
76In those circumstances, even if the Council were to take account, when adopting Implementing Regulation 2015/81, of the concept of the risk adjustment of the contributions provided for in Article 103(7) of Directive 2014/59 and the delegated acts adopted by the Commission under that provision in order to specify that concept, it does not follow from Article 70 of Regulation No 806/2014, Article 103 of Directive 2014/59 or those delegated acts that it was authorised to introduce into that implementing regulation an adjusted method of calculation, in the context of which a proportion of the basic annual contributions was calculated on the national base, that is to say, the data base defined in Article 103(2) of Directive 2014/59.
77In the fourth place, it must be observed that under no provision of Regulation No 806/2014 or, furthermore, of Directive 2014/59 is the Council authorised to introduce a method of calculating ex ante contributions based on the gradual abolition of the method of calculation based on the national base and its progressive replacement by the method based on the union base.
78Whilst it is thus true that, by adopting Article 8(1) of Implementing Regulation 2015/81, the Council could pursue a legitimate objective of avoiding distortions between banking sector structures of the Member States and it is not excluded that the adjusted method of calculating the ex ante contributions provided for in Article 8(1) of Implementing Regulation 2015/81 is necessary to that end, the fact remains that it was for the EU legislature to provide for any gradual abolition of the method of calculation based on the national base and its progressive replacement by the method based on the union base and, where appropriate, to authorise the Council to specify the detailed rules for application in an implementing act. The Council could not therefore provide for such a transition, in the place of the EU legislature, in the context of an implementing act, without exceeding the limits imposed on its implementing power.
79Similarly, neither Article 70(7) of Regulation No 806/2014 nor any other provision of that regulation authorises the Council to adopt implementing acts with the object of narrowing the gap between, on the one hand, the ex ante contributions set under that regulation and, on the other hand, the resolution financing potentially accessible to the institutions concerned during the initial period, under the rules on the progressive mutualisation of the SRF.
80Such a conferral of power does not follow, in particular, from Article 77 of Regulation No 806/2014, which lays down the detailed rules for use of the SRF.
81In that regard, it must be recalled that, under the first paragraph of Article 77 of Regulation No 806/2014, ‘the use of the [SRF] shall be contingent upon the Agreement whereby the participating Member States agree to transfer to the [SRF] the contributions that they raise at national level in accordance with [Regulation No 806/2014] and with [Directive 2014/59]’. In addition, under the second paragraph of Article 77 of that regulation, over the course of the initial period, the SRB is to use the SRF ‘in accordance with the principles founded on a division of the [SRF] into national compartments corresponding to each participating Member State, as well as on a progressive merger of the different funds raised at national level to be allocated to national compartments of the [SRF], as laid down in [that] Agreement’. It is Article 5 of the Agreement of 21 May 2014 which lays down the rules under which the SRB is authorised to dispose of the compartments of the SRF, determining the pace of its progressive mutualisation.
82However, since Article 77 of Regulation No 806/2014 does not authorise the Council to adopt implementing acts and Implementing Regulation 2015/81 is based solely on Article 70(7) of Regulation No 806/2014, nor can Article 77 of Regulation No 806/2014 justify the introduction of the ‘adjusted methodology’ under Article 8(1) of Implementing Regulation 2015/81. The same is true, a fortiori, as regards the Agreement of 21 May 2014.
83In the fifth place, in so far as the SRB and the Council contend that the Council had broad discretion as regards the manner in which Article 70(1) and (2) of Regulation No 806/2014 was to be specified, the following must be stated.
84It does indeed follow from case-law that, within the framework of its implementing power, the limits of which must be determined by reference amongst other things to the essential general aims of the legislative act in question, the Council is authorised to adopt all the measures which are necessary or appropriate for the implementation of that act, provided that they are not contrary to it (see, to that effect, judgment of 15 October 2014, Parliament v Commission, C‑65/13, EU:C:2014:2289, paragraph 44 and the case-law cited). However, that discretion enjoyed by the institution concerned relates to whether the implementing measure is necessary or appropriate for the implementation of the legislative act in question, and not to the prohibition on an implementing measure supplementing that act; those two conditions are separate (see, to that effect, judgment of 15 October 2014, Parliament v Commission, C‑65/13, EU:C:2014:2289, paragraphs 44 and 45).
85In the light of all of the foregoing, it must be observed that Article 8(1) of Implementing Regulation 2015/81 alters the normative content of Article 70(1) and (2) of Regulation No 806/2014 as regards the data base to be taken into account in the context of the method of calculating the ex ante contributions. It follows that, by adopting Article 8(1) of Implementing Regulation 2015/81, the Council exceeded the implementing powers conferred on it by Article 70(7) of Regulation No 806/2014, read in conjunction with Article 291(2) TFEU.
86Since the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings (judgment of 25 October 2018, KF v SatCen, T‑286/15, EU:T:2018:718, paragraph 156) and given that the contested decision concerns the 2022 contribution period and therefore applies Article 8(1)(g) of Implementing Regulation 2015/81, which relates to that period, the present plea of illegality must be upheld in so far as it concerns Article 8(1)(g) of that implementing regulation and the latter provision must be declared inapplicable in the present case pursuant to Article 277 TFEU.
87That illegality is sufficient for the first part of the seventh plea to be upheld, without it being necessary to examine the legality of Article 8(4) and (5) of Implementing Regulation 2015/81.
88In addition, in the interest of the sound administration of justice, it is necessary to examine the second plea regarding the determination of the annual target level.
The second plea, alleging 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
89The applicant submits that, by fixing the annual target level at an amount of EUR 14253573 821.46, which corresponds to one eighth of 1.6% of covered deposits in 2021, the SRB infringed 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.
90According to the applicant, it follows from Article 70(2) of Regulation No 806/2014 that the overall amount of the annual contributions must under no circumstances exceed 12.5% of the final target level (‘the 12.5% cap’). Given a forecast final target level of EU 80 billion, as is the case here, the SRB could therefore have raised, in 2022, no more than EUR 10 billion.
91The SRB contends, primarily, that the rule laid down in Article 70(2) of Regulation No 806/2014, which stipulates that the 12.5% cap must not be exceeded, does not apply during the initial period. It argues that the rule laid down in Article 69(2) of that regulation, according to which ex ante contributions must be spread out in time as evenly as possible until the target level is reached, takes precedence over the requirement under Article 70(2) of that regulation, since the first rule constitutes a lex specialis ratione temporis as compared with the second requirement, which, by contrast, is merely a lex generalis.
92In the alternative, the SRB contends, and reiterated in particular at the hearing, that the rule laid down in Article 70(2) of Regulation No 806/2014 that the 12.5% cap must not be exceeded is not absolute. It argues that it is impossible to apply that rule at the same time as the requirement under Article 69(1) of that regulation which requires it to ensure that the SRF reaches its final target level, which is equivalent to at least 1% of covered deposits, by the end of the initial period. It claims that the main reason why it is impossible to do so is the dynamic nature of the final target level, in the sense that that target level is likely to increase during the initial period. Thus, in the event of an increase in covered deposits, which would result in an increase in the final target level, and an underestimation by the SRB of the amount of that target level at the beginning of the initial period, the literal application of Article 70(2) of Regulation No 806/2014 would prevent the SRB from making any subsequent adjustment to the financial means to be collected in the SRF in order to remedy that underestimation. It is difficult, if not impossible, for the SRB to predict precisely what the final target level will be, on account of the unforeseen events that may arise during the initial period, which would affect the evolution of the amount of covered deposits. In the light of those circumstances, and having regard to the objective of general interest pursued by the SRF – namely to contribute to the financial stability of the European Union – the SRB should have given priority to the aim of achieving the final target level by the end of the initial period, with the result that the requirement laid down in Article 70(2) of Regulation No 806/2014 should be disregarded or interpreted flexibly.
93In that regard, in addition, the SRB submits that if the rule laid down in Article 70(2) of Regulation No 806/2014 that the 12.5% cap must not be exceeded were applicable during the initial period and if it were to be applied strictly, it would be impossible for it to comply with Article 69(2) of that regulation, which requires, first, that ex ante contributions be spread out in time as evenly as possible and, second, that due account be taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of institutions. In order to resolve the tension between the two provisions concerned, it is necessary, in particular, to interpret the 12.5% cap as being intended merely to give concrete expression, in a non-binding manner, to the requirement that ex ante contributions must be spread out in time as evenly as possible.
94The Parliament and the Council claim that, contrary to the SRB’s primary submission, the requirement in Article 70(2) of Regulation No 806/2014 that the 12.5% cap must not be exceeded applies during the initial period. However, they agree with the SRB’s position in the alternative that that requirement is not absolute and must be read and applied flexibly in the light of the main objective that the SRF must reach the final target level at the end of the initial period.
95In that regard, the Court recalls 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 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.
96Under 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 95 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 institutions.
97Next, the first subparagraph of Article 70(2) of Regulation No 806/2014 provides that, ‘each year, the Board shall … calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level’. The fourth subparagraph of Article 70(2) of that regulation adds that, ‘in any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States … shall not exceed annually the 12.5% of the target level’.
98In the first place, as regards the temporal application of the requirement to apply a 12.5% cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, it should be recalled that the Court has already held that that requirement was intended to apply during the initial period (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 68, 69 and 100).
99That follows, first of all, from the clear wording of Article 69(2) of Regulation No 806/2014, which provides that, ‘during the initial period’, ex ante contributions are to be calculated ‘in accordance with Article 70’ of that regulation, such a reference indicating, unambiguously, that all the requirements laid down in the latter provision, including the requirement laid down in the first and fourth subparagraphs of paragraph 2 thereof, are to apply during the initial period.
100Next, the first subparagraph of Article 70(2) of Regulation No 806/2014 states that the SRB must comply with the requirement to apply a 12.5% cap ‘each year’, without in any way limiting its application in time to the period following the initial period.
101Similarly, no other provision of Regulation No 806/2014 states that the requirement to apply a 12.5% cap is not to apply during the initial period or that the SRB may derogate from it during that period.
102Lastly, the interpretation according to which that requirement is to apply during the initial period is confirmed by the origin of Regulation No 806/2014.
103It is apparent from point 4.3.2 of the explanatory memorandum to the European Commission’s proposal of 10 July 2013 (COM(2013) 520 final) and from Article 65(1) of that proposal, which led to the adoption of Regulation No 806/2014, that the Commission had proposed, in its legislative proposal, that the initial period for the establishment of the SRF should be 10 years.
104During the subsequent stages of the legislative procedure, the Council had proposed – as is apparent from the interinstitutional document of 27 March 2014 (8078/1/14 REV 1), which was discussed at the hearing – that the ex ante contributions due by all of the institutions authorised in the territories of all the participating Member States should not exceed, annually, 10% of the final target level. When the Parliament and the Council agreed, during the legislative procedure, to shorten the initial period to eight years, they decided at the same time to increase the cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 to 12.5%.
105It follows, as indeed the Council confirmed in the present proceedings, that the EU legislature established a link between the number of years in the initial period and the percentage of the cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014.
106It follows from all of the foregoing that the 12.5% cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 is to apply during the initial period.
107That is, moreover, what the SRB itself acknowledged in paragraph 106 of Annex III to the contested decision, which contains its assessment of the observations of the institutions participating in the consultation relating to the 2022 ex ante contributions to the SRF, stating that, ‘by the application of [a] coefficient to [one eighth] of the total amount of the deposits in question, [it] respect[ed] the 12.5% cap’.
108In the second place, as regards the substance of the requirement to apply a 12.5% cap, the Court recalls that, under the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, the SRB is required 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, as provided for in Article 69(1) of Regulation No 806/2014.
109In that regard, the Court notes that, as is confirmed by the travaux préparatoires for Regulation No 806/2014, 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 the covered deposits at the end of the initial period. In point 4.3.2 of the explanatory memorandum to its proposal COM(2013) 520 final of 10 July 2013 which led to the adoption of that regulation, the Commission explained that the final target level would remain dynamic and that it would increase if the banking sector grows.
110The need to take account of changes in the amount of covered deposits is explained, in addition, by the objective of collecting ex ante contributions, which is, inter alia, 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, inter alia, to increase the stability of institutions in participating Member States and to prevent the spill-over of any crises into non-participating Member States.
111In 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 size 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.
112In 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 size of the banking sector, which entails an increase in the financial resources required by the SRF by the end of that period.
113It follows from the foregoing that the amount of the final target level, to which the 12.5% cap applies, must be determined in the light of the amount of covered deposits as it will be at the end of the initial period, it being understood that that amount cannot be known with certainty until the end of that period.
114That said, in so far as, pursuant to Articles 69 and 70 of Regulation No 806/2014, the calculation of ex ante contributions is an annual exercise based on the definition of a final target level that must be reached at the end of the initial period, then an annual target level to be apportioned between the institutions (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 113), it is for the SRB, in respect of each contribution period, to make as precise an estimate as possible of the final target level in the light of the data available at the time of that estimate (‘the forecast final target level’).
115It follows that it is the forecast final target level that is decisive for the application of the 12.5% cap.
116Consequently, when the SRB calculates the ex ante contributions during 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.
117That conclusion is not called into question by the line of argument of the SRB, the Parliament and the Council that the requirement to apply a 12.5% cap should either be disregarded or be interpreted ‘flexibly’. In that regard, the SRB argued, in essence, that it would be impossible for it to comply with both that cap and the requirements arising under Article 69(1) and (2) of Regulation No 806/2014, according to which, first, it must ensure that the SRF reaches its final target level of at least 1% of covered deposits by the end of the initial period and, second, the ex ante contributions must be spread out in time as evenly as possible until the final target level 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 institutions. One of the things that the SRB inferred from this – and is supported in that regard by the Parliament and the Council – was that the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 had to be interpreted in the light of Article 69(2) of that regulation, according to which ex ante contributions must be spread out ‘in time as evenly as possible’, which, in their view, permits a flexible interpretation of the requirement to apply a 12.5% cap.
118In that regard, the Court holds that the meaning of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 is unambiguously clear from the very wording of that provision.
119It is settled case-law that an interpretation of a provision of EU law in the light of its context and purpose cannot have the result of depriving the clear and precise wording of that provision of all effectiveness, otherwise it would be contra legem and, as a result, incompatible with the requirements of the principle of legal certainty. Thus, where the meaning of a provision of EU law is absolutely plain from its very wording, the EU judicature cannot depart from that interpretation (see, to that effect, judgments of 13 July 2023, Mensing, C‑180/22, EU:C:2023:565, paragraph 34 and the case-law cited, and of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 118 and the case-law cited).
120That is all the more so in the case of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, since that provision is worded in mandatory terms, as shown by the use of the expressions ‘shall not exceed 12.5% of the target level’ (first subparagraph) and ‘in any case, the aggregate amount of individual contributions … shall not exceed annually the 12.5% of the target level’ (fourth subparagraph). In addition, that provision determines the cap to be exactly 12.5%, reiterating it twice and without any exception, with the result that it cannot be changed or adjusted by the authority responsible for calculating ex ante contributions.
121In those circumstances, it cannot be argued that the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 may be interpreted, in the light of the requirement laid down in Article 69(1) of that regulation, as meaning that the 12.5% cap could be disregarded or is merely indicative, with the result that it was open to the SRB to depart from it with the objective of achieving the final target level.
122Similarly, Article 69(2) of Regulation No 806/2014, which provides, inter alia, that ex ante contributions must be spread out in time as evenly as possible until the final target level is reached, does not allow the 12.5% cap provided for in the first and fourth subparagraphs of Article 70(2) of that regulation to be interpreted as meaning that it is not binding or is merely indicative. Aside from the fact that such an interpretation would run counter to the clear and precise wording of the first and fourth subparagraphs of Article 70(2) of that regulation, first, the Court points out that, by expressly providing in Article 69(2) of that regulation that the ex ante contributions must be ‘calculated in accordance with Article 70’, the EU legislature itself envisaged the simultaneous application of both the 12.5% cap and the requirement to spread out in time those ex ante contributions as evenly as possible. Second, Article 69(2) of Regulation No 806/2014 is intended to spread out in time and as evenly as possible the financial burden on institutions, in order to avoid significant variations in that burden from one year to the next and thus to take account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of those institutions. By contrast, the first and fourth subparagraphs of Article 70(2) of that regulation seek 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. It follows that Article 69(2) and the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 pursue different, albeit complementary, aims. Therefore, the argument that Article 69(2) of that regulation requires a ‘flexible’ interpretation of the requirement to apply a 12.5% cap laid down in the first and fourth subparagraphs of Article 70(2) of that regulation must be rejected.
123That conclusion is all the more appropriate since, contrary to what is claimed by the SRB, it is not impossible to reconcile the requirements referred to in paragraph 117 above.
124It is true that, on account of the duration of the initial period and the risk of unforeseeable events occurring during that period, the estimate of the final target level is based on a prospective analysis of the evolution of the amount of covered deposits, an assessment which involves uncertainties.
125However, the taking into account of such uncertainties is inherent in the tasks entrusted to the SRB. In that regard, the Court recalls that the SRB is responsible for ensuring the effective and consistent functioning of the SRM, in accordance with Article 7(1) of Regulation No 806/2014. To that end, it is for the SRB to ensure that the final target level is reached by the end of the initial period while respecting the 12.5% cap. The prospective nature of its estimate of the final target level means that it must estimate with sufficient care the evolution of the amount of covered deposits throughout the initial period in order to have sufficient funds to reconcile compliance with the 12.5% cap with the requirements to which reference is made in paragraph 117 above.
126That is particularly the case given that, in accordance with Article 69(1) of Regulation No 806/2014, the final target level must reach ‘at least’ 1% of covered deposits by the end of the initial period. That provision does not therefore require the SRB to ensure that that target level corresponds to exactly 1% of the amount of covered deposits, but allows it to estimate, on the basis of conservative projections, the evolution of the amount of covered deposits in such a way that that target level is reached, while observing the 12.5% cap.
127Moreover, the Court notes that, when drafting Delegated Regulation 2017/747, the Commission also envisaged that the 12.5% cap and the requirements arising from Article 69(1) and (2) of Regulation No 806/2014, to which reference is made in paragraph 117 above, would apply simultaneously. Indeed, Delegated Regulation 2017/747, the purpose of which, according to Article 1(1) thereof, inter alia, is to set out the criteria for the spreading out in time of the contributions to the SRF pursuant to Article 69(2) of Regulation No 806/2014, provides, in Article 3(4) thereof, that, during any given contribution period, the level of annual contributions may be relatively lower than the average of the annual contributions ‘calculated in accordance with [Article] 69(1) and [Article] 70(2) of Regulation … No 806/2014’ only where the SRB verifies that, on the basis of conservative projections, the final target level can be reached at the end of the initial period.
128In the third place, it is therefore necessary to examine whether, in the contested decision, the SRB complied with the requirement to apply a 12.5% cap, as laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014.
129In that regard, it is apparent, first of all, from recitals 45 and 60 of the contested decision that the SRB estimated the forecast final target level at EUR 79987450580.
130Thus, when the SRB calculated the ex ante contributions relating to the 2022 contribution period, it was required to verify, in accordance with the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, and on the basis of its own estimate of the final target level, that the amount of the ex ante contributions due from all of the institutions authorised in the territories of all of the participating Member States did not exceed EUR 9998431 322.50.
131As is apparent from recital 62 of the contested decision, in conjunction with point 124 of Annex III to that decision and with the column ‘2022 Final Amount Notified (iii)’ of the table on the first page of Annex II to that decision, the SRB determined the annual target level for the 2022 contribution period to be EUR 14253573 821.46, an amount which was reduced to EUR 13675366 302.18 after, inter alia, deductions made under Article 8(2) of Implementing Regulation 2015/81.
132Consequently, the Court finds that – as, moreover, the SRB acknowledged at the hearing – the contested decision determined the amount of the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States to be an amount that exceeded the cap of 12.5% of the forecast final target level.
133It follows that the SRB infringed the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 and that the second plea must therefore be upheld, without it being necessary to rule on the SRB’s infringement of the other provisions upon which the applicant relies in the context of that plea.
Conclusion
134As is apparent from paragraphs 43 and 86 above, the Court has upheld the pleas of illegality raised by the applicant and declared inapplicable Article 70(7) of Regulation No 806/2014 and Implementing Regulation 2015/81 as well as, moreover, Article 8(1)(g) of that implementing regulation.
135It follows from the foregoing that the contested decision, which is based inter alia on Implementing Regulation 2015/81 and, more specifically, on Article 8(1)(g) thereof, must be annulled in so far as it concerns the applicant.
136In addition, as is apparent from paragraph 133 above, the contested decision must also be annulled because it infringes the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, without it being necessary to examine the other pleas and complaints raised by the applicant.
Limitation in time of the effects of the judgment
137The SRB asks that, in the event that the contested decision is annulled, the Court 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 has become final, since such an annulment would have serious consequences for financial stability in the banking union.
138At the hearing, the SRB stated that, if the Court were to annul the contested decision on account of the illegality of Regulation No 806/2014 or of Implementing Regulation 2015/81, the effects of that decision should be maintained for a period of six months from the date on which new legislation is adopted.
139In the latter respect, the Parliament also stated at the hearing that the EU legislature generally needed an average of 15 to 20 months to adopt a legislative act once the Commission’s proposal was lodged.
140The applicant opposes the SRB’s requests, arguing, inter alia, that the SRB has not provided any grounds capable of justifying why it should bear the negative consequences of an act which has been declared void pending the adoption of a new decision.
141Under the second paragraph of Article 264 TFEU, the EU judicature may, if it considers it necessary to do so, state which of the effects of an act which it has declared void are to be considered definitive. In exercising the power conferred on it by that article, the EU judicature is to have regard to respect for the principle of legal certainty and other public or private interests (see judgment of 25 February 2021, Commission v Sweden, C‑389/19 P, EU:C:2021:131, paragraph 72 and the case-law cited; see also, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 122).
142Thus, the second paragraph of Article 264 TFEU has been interpreted, inter alia, as allowing, on grounds of legal certainty, but also on grounds seeking to prevent a lack of continuity or a decline in the implementation of policies conducted or supported by the European Union, the effects of an act declared void to be maintained for a reasonable period (see judgment of 27 January 2021, Poland v Commission, T‑699/17, EU:T:2021:44, paragraph 61 and the case-law cited).
143In the present case, as is apparent from paragraphs 43, 86 and 133 above, the Court has annulled the contested decision without finding, in these proceedings, an error affecting the very obligation on the applicant to pay an ex ante contribution for the 2022 contribution period, as follows from Article 2, Article 67(4) and Article 70(1) of Regulation No 806/2014.
144In those circumstances, and as the Court of Justice held 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, paragraph 177), to annul the contested decision without providing for its effects to be maintained could undermine the implementation of Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63, which form an integral part of the banking union, which contributes to the stability of the euro area and the financial stability of the European Union as a whole. If the SRB were required to repay, with immediate effect, the amount of the applicant’s ex ante contribution and the amounts of the ex ante contributions of other institutions, such as those which have brought a similar action, raising the same plea as the one upheld in the present action, even though those institutions remain in principle subject to the obligation to pay ex ante contributions, such a repayment would risk depriving the SRF of the financial means that may prove necessary to ensure the stability of the euro area and the financial stability of the European Union.
145Consequently, the rejection of the request to maintain the effects of the contested decision would risk undermining the objective of financial stability and the objective of creating an economic and monetary union, as provided for in Article 3(4) TEU.
146In those circumstances, and in view of the fact that one of the grounds for annulment upheld by the Court concerns the illegality of Article 70(7) of Regulation No 806/2014 and of Implementing Regulation 2015/81, the Court finds that it must maintain the effects of the contested decision in so far as it concerns the applicant until the SRB has taken the measures necessary to implement the present judgment, which must occur within a reasonable period that cannot exceed 12 months from the day on which the present judgment becomes final.
The request to reopen the oral part of the procedure concerning the limitation in time of the effects of the judgment
147By a document lodged at the General Court Registry on 5 March 2024, the applicant requested that the oral part of the procedure be reopened. In that request, it states that it learned, after the hearing held on 8 February 2024, of an SRB press release of 15 February 2024, in which the SRB states that, as at 31 December 2023, the amount of the available financial means in the SRF stood at EUR 78 billion, whereas the final target level corresponding to 1% of covered deposits was EUR 75 billion. According to the applicant, the SRF thus has a surplus of EUR 3 billion, which is relevant to any decision by the Court to maintain the effects of the contested decision in the event that that decision is annulled. With regard to the institutions which have brought an action against that decision raising a plea corresponding to the second plea in this action, that surplus would allow the proportion of those institutions’ ex ante contributions exceeding the 12.5% cap to be reimbursed, without the available financial means in the SRF falling below the final target level of EUR 75 billion.
148Pursuant to Article 113(2)(c) of its Rules of Procedure, the Court may order the reopening of the oral part of the procedure where requested by a main party who is relying on facts which are of such a nature as to be a decisive factor for the decision of the Court but which it was unable to put forward before the oral part of the procedure was closed.
149In that regard, it must be observed that the new fact upon which the applicant relies cannot, in any case, be a decisive factor for the decision of the Court.
150First, as the applicant itself concedes, the SRB press release referred to in paragraph 147 above is irrelevant to assessing the legality of the contested decision and to ruling on the forms of order sought in the application. Second, nor is that press release decisive as regards maintaining the effects of the contested decision. On that point, it is sufficient to state that the amount of the applicant’s ex ante contribution and the amounts of the ex ante contributions of other institutions, such as those which have brought a similar action raising the same pleas as those upheld in the present action, risk exceeding, in any case, the amount of EUR 3 billion to which the applicant refers.
151The applicant’s request for the oral part of the procedure to be reopened must therefore be rejected.
Costs
152Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has applied for costs and the SRB has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the applicant.
153In accordance with Article 138(1) of the Rules of Procedure, the Parliament and the Council are to bear their own costs.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber, Extended Composition)hereby:
1.Annuls Decision SRB/ES/2022/18 of the Single Resolution Board (SRB) of 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRF) in so far as it concerns Hypo Vorarlberg Bank AG;
2.Maintains the effects of Decision SRB/ES/2022/18, in so far as it concerns Hypo Vorarlberg Bank, until the SRB has taken the measures necessary to implement the present judgment, which must occur within a reasonable period that cannot exceed 12 months from the day on which the present judgment becomes final;
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 29 May 2024.
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