Judgments nº C-414/18 of Tribunal de Justicia, December 03, 2019

Resolution Date:December 03, 2019
Issuing Organization:Tribunal de Justicia
Decision Number:C-414/18
 
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(Reference for a preliminary ruling - Directive 2014/59/EU - Banking Union - Recovery and resolution of credit institutions and investment firms - Annual contributions - Calculation - Regulation (EU) No 806/2014 - Implementing Regulation (EU) 2015/81 - Uniform procedure for the resolution of credit institutions and investment firms - Administrative procedure involving national authorities and an EU body - Exclusive decision-making power of the Single Resolution Board - Procedure before the national courts - Failure to bring an action for annulment before the EU Courts in due time - Delegated Regulation (EU) 2015/63 - Exclusion of certain liabilities from the calculation of contributions - Interconnectedness of a number of banks)

In Case C-414/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decision of 23 January 2018, received at the Court on 22 June 2018, in the proceedings

Iccrea Banca SpA Istituto Centrale del Credito Cooperativo

v

Banca d’Italia,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.-C. Bonichot, A. Arabadjiev, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, M. Ilešič, J. Malenovský, L. Bay Larsen (Rapporteur), T. von Danwitz, F. Biltgen, K. Jürimäe, C. Lycourgos and N. Piçarra, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 30 April 2019,

after considering the observations submitted on behalf of:

- Iccrea Banca SpA Istituto Centrale del Credito Cooperativo, by P. Messina, A. Gemma, F. Isgrò and A. Dentoni Litta, avvocati,

- the Banca d’Italia, by M. Mancini, D. Messineo and L. Sciotto, avvocati,

- the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili and G. Rocchitta, avvocati dello Stato,

- the Spanish Government, by S. Centeno Huerta and M.A. Sampol Pucurull, acting as Agents,

- the European Commission, by V. Di Bucci and A. Steiblytė, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 July 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5(1)(a) and (f) 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).

2 The request has been made in proceedings between Iccrea Banca SpA Istituto Centrale del Credito Cooperativo (‘Iccrea Banca’) and the Banca d’Italia (Bank of Italy), concerning a number of decisions and communications of the latter in relation to the payment of contributions to the Italian national resolution fund and to the Single Resolution Fund (‘the SRF’).

Legal context

The Seventh D irective 83/349 / EEC

3 Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1) was repealed by Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ 2013 L 182, p. 19).

4 Article 1 of Seventh Directive 83/349, as amended by Directive 2003/51/EC of the European Parliament and of the Council of 18 June 2003 (OJ 2003 L 178, p. 16; ‘Directive 83/349’) provided:

‘1. A Member State shall require any undertaking governed by its national law to draw up consolidated accounts and a consolidated annual report if that undertaking (a parent undertaking):

(a) has a majority of the shareholders’ or members’ voting rights in another undertaking (a subsidiary undertaking);

or

(b) has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another undertaking (a subsidiary undertaking) and is at the same time a shareholder in or member of that undertaking;

or

(c) has the right to exercise a dominant influence over an undertaking (a subsidiary undertaking) of which it is a shareholder or member, pursuant to a contract entered into with that undertaking or to a provision in its memorandum or articles of association …

or

(d) is a shareholder in or member of an undertaking, and:

(aa) a majority of the members of the administrative, management or supervisory bodies of that undertaking (a subsidiary undertaking). … have been appointed solely as a result of the exercise of its voting rights;

or

(bb) controls alone, pursuant to an agreement with other shareholders in or members of that undertaking (a subsidiary undertaking), a majority of shareholders’ or members’ voting rights in that undertaking …

  1. Apart from the cases mentioned in paragraph 1, the Member States may require any undertaking governed by their national law to draw up consolidated accounts and a consolidated annual report if:

    (a) that undertaking (a parent undertaking) has the power to exercise, or actually exercises, dominant influence or control over another undertaking (the subsidiary undertaking); or

    (b) that undertaking (a parent undertaking) and another undertaking (the subsidiary undertaking) are managed on a unified basis by the parent undertaking.’

    5 Article 2 of Directive 83/349 provided:

    ‘1. For the purposes of Article 1(1)(a), (b) and (d), the voting rights and the rights of appointment and removal of any other subsidiary undertaking as well as those of any person acting in his own name but on behalf of the parent undertaking or of another subsidiary undertaking must be added to those of the parent undertaking.

  2. For the purposes of Article 1(1)(a), (b) and (d), the rights mentioned in paragraph 1 above must be reduced by the rights:

    (a) attaching to shares held on behalf of a person who is neither the parent undertaking nor a subsidiary thereof;

    or

    (b) attaching to shares held by way of security, provided that the rights in question are exercised in accordance with the instructions received, or held in connection with the granting of loans as part of normal business activities, provided that the voting rights are exercised in the interests of the person providing the security.

  3. For the purposes of Article 1(1)(a) and (d), the total of the shareholders’ or members’ voting rights in the subsidiary undertaking must be reduced by the voting rights attaching to the shares held by that undertaking itself, by a subsidiary undertaking of that undertaking, or by a person acting in his own name but on behalf of those undertakings.’

    Regulation ( EU ) No 575/2013

    6 Article 4(1) 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), states:

    ‘For the purposes of this Regulation, the following definitions shall apply:

    (15) “parent undertaking” means:

    (a) a parent undertaking within the meaning of Articles 1 and 2 of Directive 83/349/EEC;

    (16) “subsidiary” means:

    (a) a subsidiary undertaking within the meaning of Articles 1 and 2 of Directive 83/349/EEC;

    (b) a subsidiary undertaking within the meaning of Article 1(1) of Directive 83/349/EEC and any undertaking over which a parent undertaking effectively exercises a dominant influence;

    Subsidiaries of subsidiaries shall also be considered to be subsidiaries of the undertaking that is their original parent undertaking;

    …’

    D irective 2014/59 / EU

    7 Article 2(1) 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) is worded as follows:

    ‘For the purpose of this Directive the following definitions apply:

    (5) “subsidiary” means a subsidiary as defined in point (16) of Article 4(1) of Regulation (EU) No 575/2013;

    (6) “parent undertaking” means a parent undertaking as defined in point (15)(a) of Article 4(1) of Regulation (EU) No 575/2013;

    (26) “group” means a parent undertaking and its subsidiaries;

    …’

    8 Article 102(1) of Directive 2014/59 provides:

    ‘Member States shall ensure that, by 31 December 2024, the available financial means of their financing arrangements reach at least 1% of the amount of covered deposits of all the institutions authorised in their territory. Member States may set target levels in excess of that amount.’

    9 Article 103(1), (2) and (7) of that directive state:

    ‘1. In order to reach the target level specified in Article 102, Member States shall ensure that contributions are raised at least annually from the institutions authorised in their territory including Union branches.

  4. The contribution of each institution shall be pro rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits of all the institutions authorised in the territory of the Member State.

    Those contributions shall be adjusted in proportion to the risk profile of institutions, in accordance with the criteria adopted...

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