Judgment of the General Court of 20 January 2021, ABLV Bank v CRU, T-758/18
| Date | 20 January 2021 |
| Year | 2021 |
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Judgment of the General Court (Tenth Chamber, Extended Compositio n) of 20 January 2021
ABLV Bank v CRU
Economic and monetary Union – Banking union – Single resolution mechanism for credit institutions and
certain investment firms (SRM) – Single Resolution Fund (SRF) – Setting of the 2015 and 2018 ex ante
contributions – Rejection of the request for a recalculation and a reimbursement of contributions – Action
for annulment – Challengeable act – Admissibility – Institution whose licence has been withdrawn –
Article 70(4) of Regulation (EU) No 806/2014 – Concept of ‘change of status’ – Article 12(2) of Delegated
The applicant, ABLV Bank AS, was, until 11 July 2018, a licensed Latvian credit institution as well as a
‘significant entity’ subject to supervision by the European Central Bank (ECB) under the Sin gle
Monitoring Mechanism (SSM).
On 13 February 2018, the United States Treasury Department announced a proposed measure to
designate the applicant as an institution of primary money laundering concern. Following that
announcement, the applicant was no longer able to make payments in dollars and experienced a
wave of deposit withdrawals. The ECB therefore instructed the Latvian Financial and Capital Markets
Commission to impose a moratorium to allow the applicant to stabilise its situation. On 23 February
2018, the ECB found that the applicant was failing or likely to fail and the Single Resolution Board
(SRB) found that a resolution action in respect of the applicant was not necessary in the public
interest.
The applicant paid the amounts due as ex ante contributions for the years 2015 and 2018, as indicated
by the Financial and Capital Markets Commission.
Following the withdrawal of its licence by the ECB, on 11 July 2018, the applicant applied to the SRB for
the repayment of a proportion of the contributions paid for the year 2015, the recalculation of the
amount of its ex ante contribution for the year 2018 and the repayment of the amounts overpaid as ex
ante contributions.
By letter of 17 October 2018 (‘the contested decision’), the SRB considered, fi rst, that the ECB’s
decision concerning the applicant had no effect on its 2018 ex ante contribution, in that it did not
require it to recalculate or reimburse part of that contribution. Secondly, with regard to the 2015 ex
ante contributions, the SRB considered that the entities which had paid these contributions and
whose licence had subsequently been withdrawn did not benefit from a right to reimbursement of
those contributions.
The applicant brought an action for annulment of the contested decision, relying in particular on
pleas in law alleging failure to have regard to the alleged pro rata temporis nature of ex ante
contributions. That action was, however, dismissed by the General Court, which, sitting in an
extended composition, ruled for the first time on the non-refundability of the ex ante contributions
duly received.
Findings of the Court
In the first place, the General Court examines the 2018 ex ante contribution. In that regard, it recalls,
first, the annual nature of the ex ante contributions paid by each authorised institution, established in
a Member State participating in the Banking Union, to the Single Resolution Fund (SRF) and, second,
the non-refundable nature of those contributions, received in due form .
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With regard to the annual
nature of those contributions, it does not mean that they ‘relate’ to a specific year, with the
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Article 70(4) of Regulation (EU) No 806/2014 of the Europ ean Parliament and of the Council of 15 July 2014 establishing uniform rules and a
uniform procedure for the resolution of credit institutions and ce rtain investment firms in the framework of a Single Resolut ion Mechanism
and a Single Resolution Fund and amending Regulation (EU) No 1093/201 0 (OJ 2014 L 225, p. 1).
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