European Commission v Single Resolution Board.

• Jurisdiction: European Union
• Celex Number: 62022CJ0551
• ECLI: ECLI:EU:C:2024:520
• Date: 18 June 2024
• Docket Number: C-551/22
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

18 June 2024 (*)

(Appeal – Economic and monetary policy – Banking Union – Regulation (EU) No 806/2014 – Single resolution mechanism – Resolution procedure applicable where an entity is failing or is likely to fail – Article 18(7) – Adoption by the Single Resolution Board of a resolution scheme – Endorsement of that scheme by the European Commission – Article 86(2) – Act against which proceedings may be brought – Action for annulment – Admissibility)

In Case C‑551/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 August 2022,

European Commission, represented by L. Flynn, P. Němečková, A. Nijenhuis, A. Steiblytė and D. Triantafyllou, acting as Agents,

appellant,

the other parties to the proceedings being:

Fundación Tatiana Pérez de Guzmán el Bueno, established in Madrid (Spain),

Stiftung für Forschung und Lehre (SFL), established in Zürich (Switzerland), represented by R. Pelayo Jiménez and R. Pelayo Torrent, abogados,

applicants at first instance,

Single Resolution Board (SRB), represented by H. Ehlers, S. Fernández Rupérez, A.R. Lapresta Bienz and J.M. Rius Riu, acting as Agents, and by F.B. Fernández de Trocóniz Robles, abogado, and B. Meyring and S. Schelo, Rechtsanwälte,

defendant at first instance,

Kingdom of Spain,

European Parliament, represented by J. Etienne, P. López-Carceller, M. Menegatti, L. Stefani and L. Visaggio, acting as Agents,

Council of the European Union, represented by J. Bauerschmidt, J. Haunold, H. Marcos Fraile and A. Westerhof Löfflerová, acting as Agents,

Banco Santander SA, established in Santander (Spain), represented by J. Remón Peñalver, J.M. Rodríguez Cárcamo, A.M. Rodríguez Conde and D. Sarmiento Ramírez-Escudero, abogados,

interveners at first instance,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, K. Jürimäe, C. Lycourgos, E. Regan, T. von Danwitz (Rapporteur), F. Biltgen and N. Piçarra, Presidents of Chambers, S. Rodin, P.G. Xuereb, L.S. Rossi, N. Jääskinen, N. Wahl, I. Ziemele and D. Gratsias, Judges,

Advocate General: T. Ćapeta,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 13 June 2023,

after hearing the Opinion of the Advocate General at the sitting on 9 November 2023,

gives the following

Judgment

1 By its appeal, the European Commission seeks to have set aside the judgment of the General Court of 1 June 2022, Fundación Tatiana Pérez de Guzmán el Bueno and SFL v SRB (T‑481/17, ‘the judgment under appeal’, EU:T:2022:311), by which the General Court dismissed the application brought by Fundación Tatiana Pérez de Guzmán el Bueno (‘Fundación’) and Stiftung für Forschung und Lehre (SFL) seeking annulment of Decision SRB/EES/2017/08 of the Executive Session of the Single Resolution Board (SRB or ‘the Board’) of 7 June 2017, concerning the adoption of a resolution scheme in respect of Banco Popular Español SA (‘the resolution scheme at issue’).

Legal context

Regulation (EU)No 1024/2013

2Article 6(4) and (5) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63) provides:

‘4. In relation to the tasks defined in Article 4 except for points (a) and (c) of paragraph 1 thereof, the [European Central Bank (ECB)] shall have the responsibilities set out in paragraph 5 of this Article and the national competent authorities shall have the responsibilities set out in paragraph 6 of this Article … for the supervision of the following credit institutions, financial holding companies or mixed financial holding companies, or branches, which are established in participating Member States, of credit institutions established in non-participating Member States:

– those that are less significant on a consolidated basis, at the highest level of consolidation within the participating Member States, or individually in the specific case of branches, which are established in participating Member States, of credit institutions established in non-participating Member States. The significance shall be assessed based on the following criteria:

(i) size;

(ii) importance for the economy of the [European] Union or any participating Member State;

(iii) significance of cross-border activities.

With respect to the first subparagraph above, a credit institution or financial holding company or mixed financial holding company shall not be considered less significant, unless justified by particular circumstances to be specified in the methodology, if any of the following conditions is met:

(i) the total value of its assets exceeds EUR 30 billion;

(ii) the ratio of its total assets over the [gross domestic product (GDP)] of the participating Member State of establishment exceeds 20%, unless the total value of its assets is below EUR 5 billion;

(iii) following a notification by its national competent authority that it considers such an institution of significant relevance with regard to the domestic economy, the ECB takes a decision confirming such significance following a comprehensive assessment by the ECB, including a balance-sheet assessment, of that credit institution.

The ECB may also, on its own initiative, consider an institution to be of significant relevance where it has established banking subsidiaries in more than one participating Member States and its cross-border assets or liabilities represent a significant part of its total assets or liabilities subject to the conditions laid down in the methodology.

…

5. With regard to the credit institutions referred to in paragraph 4, and within the framework defined in paragraph 7:

…

(b) when necessary to ensure consistent application of high supervisory standards, the ECB may at any time, on its own initiative after consulting with national competent authorities or upon request by a national competent authority, decide to exercise directly itself all the relevant powers for one or more credit institutions referred to in paragraph 4 …

…’

SRM Regulation

3 Recitals 24, 26, 62, 90 and 120 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 SRM Regulation’) are worded as follows:

‘(24) Since only institutions of the Union may establish the resolution policy of the Union and since a margin of discretion remains in the adoption of each specific resolution scheme, it is necessary to provide for the adequate involvement of the Council [of the European Union] and the Commission, as institutions which may exercise implementing powers, in accordance with Article 291 TFEU. The assessment of the discretionary aspects of the resolution decisions taken by the Board should be exercised by the Commission. Given the considerable impact of the resolution decisions on the financial stability of 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. It should therefore be for the Council, on a proposal from the Commission, to exercise effective control on the assessment by the Board of the existence of a public interest and to assess any material change to the amount of the Fund to be used in a specific resolution action. Moreover, the Commission should be empowered to adopt delegated acts to specify further criteria or conditions to be taken into account by the Board in the exercise of its different powers. Such a conferral of resolution tasks should not in any way hamper the functioning of the internal market for financial services. [The European Banking Authority (EBA)] should therefore maintain its role and retain its existing powers and tasks: it should develop and contribute to the consistent application of the Union legislation applicable to all Member States and enhance convergence of resolution practices across the Union as a whole.

…

(26) The ECB, as the supervisor within the [Single Supervisory Mechanism (SSM)], and the Board, should be able to assess whether a credit institution is failing or is likely to fail and whether there is no reasonable prospect that any alternative private sector or supervisory action would prevent its failure within a reasonable timeframe. The Board, if it considers all the criteria relating to the triggering of resolutions to be met, should adopt the resolution scheme. The procedure relating to the adoption of the resolution scheme, which involves the Commission and the Council, strengthens the necessary operational independence of the Board while respecting the principle of delegation of powers to agencies as interpreted by the Court of Justice of the European Union (the “Court of Justice”). Therefore, this Regulation provides that the resolution scheme adopted by the Board enters into force only if, within 24 hours after its adoption by the Board, there are no objections from the Council or the Commission or the resolution scheme is approved by the Commission. The grounds on which the Council is permitted to object, on a proposal by the Commission, to the Board’s resolution scheme should be strictly limited to the existence of a public interest and to material modifications by the Commission of the amount of the use of the Fund as proposed by the Board.

A change of 5% or more to the amount of the Fund compared with the original proposal of the Board should be considered to be material. The Council should approve or object to the Commission’s proposal without amending it...