Judgments nº T-411/17 of Tribunal General de la Unión Europea, September 23, 2020

• Resolution Date: September 23, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-411/17

(Economic and monetary union - Banking union - Single Resolution Mechanism for credit institutions and certain investment firms (SRM) - Single Resolution Fund (SRF) - Decision of the SRB on the calculation of the 2017 ex ante contributions - Action for annulment - Direct and individual concern - Admissibility - Essential procedural requirements - Authentication of the decision - Obligation to state reasons - Right to effective judicial protection - Plea of illegality - Limitation of the temporal effects of the judgment)

In Case T-411/17,

Landesbank Baden-Württemberg, established in Stuttgart (Germany), represented by H. Berger and K. Rübsamen, lawyers,

applicant,

v

Single Resolution Board (SRB), represented by A. Martin-Ehlers, S. Raes, T. Van Dyck and A. Kopp, lawyers,

defendant,

supported by

European Commission, represented by A. Steiblytė and K.-P. Wojcik, acting as Agents,

intervener,

ACTION pursuant to Article 263 TFEU for annulment of the decision of the Executive Session of the SRB of 11 April 2017 on the calculation of the 2017 ex ante contributions to the Single Resolution Fund (SRB/ES/SRF/2017/05), in so far as it concerns the applicant,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

composed of A.M. Collins, President, M. Kancheva, R. Barents, J. Passer (Rapporteur) and G. De Baere, Judges,

Registrar: S. Bukšek Tomac, Administrator,

having regard to the written part of the procedure and further to the hearing on 12 December 2019,

gives the following

Judgment

Legal framework

1 The present case has been brought in the context of the second pillar of the Banking Union, concerning the Single Resolution Mechanism (SRM) established by 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 SRM was established with the purpose of enhancing the integration of the resolution framework in the euro area Member States and those non-euro area Member States who choose to participate in the Single Supervisory Mechanism (SSM) (‘the participating Member States’).

2 In particular, this case concerns the Single Resolution Fund (SRF) established by Article 67(1) of Regulation No 806/2014. The SRF is funded by the contributions of institutions raised at national level by way of, inter alia, ex ante contributions pursuant to Article 67(4) of that regulation. Under Article 3(1)(13) of that regulation, the concept of ‘institution’ means a credit institution, or an investment firm covered by consolidated supervision in accordance with Article 2(c) thereof. The contributions are transferred at European Union level in accordance with the intergovernmental agreement on the transfer and mutualisation of contributions to the SRF, signed in Brussels (Belgium) on 21 May 2014.

3 Article 70 of Regulation No 806/2014, entitled ‘Ex-ante contributions’, provides:

‘1. The individual contribution of each institution shall be raised at least annually and shall be calculated 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 of the institutions authorised in the territories of all of the participating Member States.

2. Each year, the Board shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, 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.

   Each year the calculation of the contributions for individual institutions shall be based on:

   (a) a flat contribution, that is pro-rata based on the amount of an institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the participating Member States; and

   (b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of Directive 2014/59/EU, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.

   The relation between the flat contribution and the risk-adjusted contributions shall take into account a balanced distribution of contributions across different types of banks.

   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, calculated under points (a) and (b), shall not exceed annually the 12.5% of the target level.

   …

6. The delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of Directive 2014/59/EU, shall be applied.

7. The Council, acting on a proposal from the Commission, shall, within the framework of the delegated acts referred to in paragraph 6, adopt implementing acts to determine the conditions of implementation of paragraphs 1, 2, and 3, and in particular in relation to:

   (a) the application of the methodology for the calculation of individual contributions;

   (b) the practical modalities for allocating to institutions the risk factors specified in the delegated act.’

   4 Regulation No 806/2014 was supplemented, with regard to those ex ante contributions, by 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).

   5 Moreover, Regulation No 806/2014 and Implementing Regulation 2015/81 refer to certain provisions in two other acts:

   - 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

   - Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59 with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

   6 The Single Resolution Board (SRB) was established as a European Union agency (Article 42 of Regulation No 806/2014). It comprises, inter alia, a plenary session and an executive session (Article 43(5) of Regulation No 806/2014). In its executive session, the SRB is to take all of the decisions to implement Regulation No 806/2014, unless that regulation provides otherwise (Article 54(1)(b) of Regulation No 806/2014).

   Background to the dispute

   7 The applicant, Landesbank Baden-Württemberg, is a credit institution established in Germany. It is a member of the institutional protection scheme (‘the IPS’) of the Sparkassen-Finanzgruppe (Savings Banks Finance Group, Germany).

   8 On 26 January 2017, the applicant sent its declaration for the purposes of the 2017 ex ante contribution to the German resolution authority, the Bundesanstalt für Finanzmarktstabilisierung (Federal Agency for Financial Market Stabilisation, Germany; ‘the FMSA’).

   9 By decision of 11 April 2017 on the calculation of the 2017 ex ante contributions to the SRF (SRB/ES/SRF/2017/05; ‘the contested decision’), the SRB, in its executive session, pursuant to Article 54(1)(b) and Article 70(2) of Regulation No 806/2014, determined the amount of the 2017 ex ante contribution in respect of each institution, including the applicant.

   10 By assessment notice of 21 April 2017, received on 24 April 2017, the FMSA informed the applicant that the SRB had set its 2017 ex ante contribution to the SRF and set out the amount to be paid to the Restrukturierungsfonds (Restructuring Fund, Germany) (‘the assessment notice’). The FMSA attached two documents to the assessment notice, namely a version in German of the text of the contested decision, without the annex to which that text refers, and a document entitled ‘Details of the (risk-adjusted) calculation: 2017 ex ante contributions to the [SRF]’ (‘the document entitled “Details of the calculation”’).

   Procedure and forms of order sought

   11 By document lodged at the Registry of the General Court on 30 June 2017, the applicant brought the present action.

   12 By document lodged at the Court Registry on 29 September 2017, the European Commission sought leave to intervene in support of the form of order sought by the SRB.

   13 By decision of 13 November 2017, the President of the Eighth Chamber of the Court (former composition) granted the Commission leave to intervene.

   14 Acting on a proposal from the Eighth Chamber of the Court (former composition), the President of that Chamber decided, pursuant to Article 28 of the Rules of Procedure of the General Court, to assign the case to a Chamber sitting in extended composition.

   15 By measure of organisation of procedure adopted on 12 February 2019 pursuant to Article 89 of the Rules of Procedure, the Court, first, requested the SRB to produce the complete original copy of the contested decision, including the annex thereto, and all of the interim decisions it had taken and on the basis of which it had calculated the 2017 ex ante contribution. Second, the Court requested the SRB to set out the procedure for the adoption of the contested decision, providing supporting evidence. Third, the SRB was requested to specify, regarding the data in the...