JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
28 November 2019 (*)
(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 2016 ex ante contributions – Action for annulment – Direct and individual concern – Admissibility – Essential procedural requirements – Authentication of the decision – Procedure for adoption of the decision)
In Case T‑323/16,
Banco Cooperativo Español, SA, established in Madrid (Spain), represented by D. Sarmiento Ramírez-Escudero and J. Beltrán de Lubiano Sáez de Urabain, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by F. Málaga Diéguez, F. Fernández de Trocóniz Robles, B. Meyring, S. Schelo, T. Klupsch and S. Ianc, lawyers,
defendant,
supported by
European Commission, represented by J. Rius, A. Steiblytė and K.-P. Wojcik, acting as Agents,
intervener,
APPLICATION based on Article 263 TFEU and seeking annulment of the decision of the SRB in its executive session of 15 April 2016 on the 2016 ex ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/06) to the extent to which 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: J. Palacio González, Principal Administrator,
having regard to the written part of the procedure and further to the hearing on 27 February 2019,
gives the following
Judgment
Legal context
1 The present case comes within the framework of the second pillar of the banking union, relating to the Single Resolution Mechanism (SRM), set up 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 objective of achieving greater integration of the framework for resolution in Member States in the euro area and in those Member States which do not form part of the euro area and which choose to participate in the Single Supervisory Mechanism (SSM) (‘the participating Member States’).
2 More specifically, this case concerns the Single Resolution Fund (SRF) established by Article 67(1) of Regulation No 806/2014. The SRF is financed by the contributions of institutions collected at national level in the form, in particular, of ex ante contributions, pursuant to Article 67(4) of that regulation. Under Article 3(1)(13) of that regulation, the concept of an institution refers to a credit institution, or an investment firm covered by consolidated supervision in accordance with Article 2(c) of that regulation. The contributions are transferred to EU level in accordance with the Intergovernmental Agreement on the transfer and mutualisation of contributions to the SRF, signed in Brussels on 21 May 2014 (‘the IGA’).
3 Article 70 of Regulation No 806/2014, headed ‘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 … 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 SRF (OJ 2015 L 15, p. 1).
5 In addition, Regulation No 806/2014 and Implementing Regulation 2015/81 refer to certain provisions contained in two other acts:
– firstly, 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);
– secondly, 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).
6 The Single Resolution Board (SRB) was established as an EU agency (Article 42 of Regulation No 806/2014). It comprises, in particular, a plenary session and an executive session (Article 43(5) of Regulation No 806/2014). The SRB, in its executive session, is required 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).
7 By decision of 29 April 2015 (SRB/PS/2015/8), the SRB, in its plenary session, adopted the Rules of Procedure of the SRB in its Executive Session (‘the RPES’).
8 Article 9(1) to (3) of the RPES provides:
‘1. Decisions may also be taken by written procedure, unless at least two Members of the Executive Session referred to in Article 3(1) participating in the written procedure object within the first 48 hours of the launch of the written procedure. In such case, the item shall be put on the agenda of the subsequent Executive Session.
2. A written procedure shall normally require not less than five working days for consideration by each Member of [the] Executive Session. Where emergency action is required, the Chair may establish a shorter period for taking a decision by consensus. The reason for the shortening of the period shall be given.
3. If consensus is not reachable via a written procedure, the Chair may initiate a regular voting procedure in line with Article 8.’
Background to the dispute
9 The applicant, Banco Cooperativo Español, SA, is a credit institution established in a participating Member State.
10 On 11 December 2015, the Fondo de Reestructuración Ordenada Bancaria (Fund for Orderly Bank Restructuring), which is the national resolution authority (‘NRA’) within the meaning of Article 3(1)(3) of Regulation No 806/2014 for Spain (‘the Spanish NRA’), sent the applicant a request for information for the purposes of calculating its 2016 ex ante contribution.
11 The applicant acceded to that request.
12 By decision of 15 April 2016 on the 2016 ex ante contributions to the SRF (SRB/ES/SRF/2016/06) (‘the contested decision’), the SRB, in its executive session, decided, pursuant to Article 54(1)(b) and Article 70(2) of Regulation No 806/2014, on the amount of the 2016 ex ante contribution of each institution, including the applicant. The annex to that decision contains, in a table, the amounts of the 2016 ex ante contributions of all the institutions, as well as a number of other columns, headed, in particular, ‘Method (EA) [(euro area)]’ and ‘Risk adjustment factor in the EA environment’.
13 The SRB indicates that, on 15 April 2016, it communicated the contested decision to the Spanish NRA inasmuch as it concerns the institutions authorised in the territory coming within the area of competence of that NRA.
14 By letter of 26 April 2016, the Spanish NRA informed the applicant of the amount of its ex ante contribution and requested it to make payment of that amount to the Banco de España (Bank of Spain) by 24 June 2016.
Procedure and forms of order sought
15 By document lodged at the Registry of the Court on 24 June 2016, the applicant brought the present action. The SRB lodged its defence on 6 September 2016.
16 By document lodged at the Registry of the Court on 4 October 2016, the European Commission applied for leave to intervene in support of the form of order sought by the SRB.
17 By decision of 25 October 2016, the President of the Eighth Chamber of the Court granted the Commission’s application to intervene.
18 By a first measure of organisation of procedure adopted on 9 October 2017 pursuant to Article 89 of the Rules of Procedure of the General Court, the Court requested the SRB to produce the full copy of the original of the contested decision, including the annex thereto.
19 By document of 26 October 2017, the SRB indicated that it was unable to comply with the measure of organisation of procedure adopted on 9 October 2017, citing, in particular, the confidential nature of the data contained in the annex to the contested decision.
20 By order relating to measures of inquiry of 14 December 2017 (‘the first order’), the Court ordered the SRB, on the basis, on the one hand, of the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and, on the other hand, of Article 91(b), Article 92(3) and Article 103 of the Rules of Procedure, to produce non-confidential and confidential versions of the full copy of the original of the contested decision, including the annex thereto.
21 By document of 15 January 2018, the SRB responded to the first order and produced non-confidential and confidential versions of two documents, namely, firstly, in the case of the text of the contested decision, a two-page document in the form of a scanned copy, in PDF format, of a signed paper document, and, secondly, a document in the form of a computer generation, in PDF format, of digital data, constituting the annex to the contested decision.
22 In view of the SRB’s response to the first order, the Court, on 12 March 2018, adopted a second measure of organisation of procedure and requested the SRB, firstly, to clarify the format of the annex at the time of the adoption of the contested decision, secondly, in the event that that annex was presented in digital format, to explain that fact and to provide all of the technical authenticating evidence necessary to prove that the PDF generation of digital data produced before the Court corresponded to that which was in fact presented for signature and adopted by the SRB, in its executive session, at its meeting on 15 April 2016, and, thirdly, to lodge its observations on the question of the legal existence of the contested decision and on the question of compliance with essential procedural requirements.
23 By document of 27 March 2018, the SRB responded to the second measure of organisation of procedure. With regard to the second request mentioned in paragraph 22 above, the SRB indicated that it was unable to comply with it on the ground that some of the documents which it would have to produce were confidential, and asked for a measure of inquiry to be adopted.
24 On 2 May 2018, the Court adopted a further order relating to measures of inquiry, ordering the SRB to comply with the second request featuring in the measure of organisation of procedure of 12 March 2018 (‘the second order’).
25 By document of 18 May 2018, corrected on 29 June 2018, the SRB complied with the second order and produced confidential and non-confidential versions of a document entitled ‘Technical information on identification’, the text of three SRB emails dated 13 April 2016 at 17.41, and 15 April 2016 at 19.04 and 20.06, together with a USB stick containing a file in XLSX format and a file in TXT format.
26 By decision of 13 July 2018, following the examination provided for in Article 103(1) of the Rules of Procedure, the Court removed from the case file the confidential versions of the documents produced by the SRB in response to the first and second orders, with the exception of files in TXT format appearing on the USB sticks produced on 18 May 2018 by the SRB which did not include any confidential information, those files being placed in the case file in paper format.
27 On 13 July 2018, by a third measure of organisation of procedure adopted under Article 89 of the Rules of Procedure, the Court requested the applicant and the Commission to lodge their observations on the SRB’s responses to the measures of organisation of procedure and of inquiry referred to in paragraphs 18, 20, 22 and 24 above.
28 By documents of 27 and 30 July 2018, the applicant and the Commission lodged their observations in response to the third measure of organisation of procedure.
29 Acting on a proposal from the Eighth Chamber of the Court, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.
30 By letter of 20 November 2018, the Court, inter alia, asked the parties, as part of the measures of organisation of procedure, to clarify their positions with regard to the SRB’s compliance with the obligation to state reasons.
31 By documents lodged at the Registry of the Court on 4 December 2018, the parties complied with that request.
32 The applicant claims, in essence, that the Court should annul the contested decision.
33 The SRB, supported as to the substance by the Commission, contends that the Court should:
– dismiss the action as inadmissible;
– alternatively, dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
34 For the purposes of the present action for annulment, the applicant puts forward two pleas in law, the first of which is based on a plea of illegality in respect of Article 5(1) of Delegated Regulation 2015/63 and the second of which, on the basis of that plea of illegality, seeks annulment of the contested decision inasmuch as it infringes the second subparagraph of Article 103(2) of Directive 2014/59 and Article 70 of Regulation No 806/2014, interpreted in the light of Article 16 of the Charter of Fundamental Rights of the European Union and the principle of proportionality.
Admissibility
35 The SRB considers that the action is directed against the act of the Spanish NRA because it is that act, and not the decision of the SRB, which is annexed to the action. The SRB states that it is not the author of the act of the Spanish NRA. The action against that act is therefore, it submits, inadmissible.
36 If the action were nonetheless considered to have been brought against the decision of the SRB, it would, in the view of the SRB, be equally inadmissible, because the approval of the 2016 ex ante contributions by the SRB does not create any binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position and, in particular, does not create any payment obligations. The creation of such an obligation requires the adoption of a decision of the NRA.
37 Moreover, the calculation of the ex ante contributions by the SRB is not of direct concern to the applicant, within the meaning of the fourth paragraph of Article 263 TFEU.
38 In the rejoinder, the SRB argues that the contested decision is not addressed to the applicant. The contested decision was notified solely to the NRAs, which then adopted their own legal acts in accordance with the contested decision and notified them to the institutions under their supervision. Consequently, according to the SRB, even though that decision may have been binding on the Spanish NRA, it was not directly binding on the applicant, to which it was not, in any event, addressed.
39 Contrary to what the applicant maintains, the contested decision does not, according to the SRB, ‘impose’ the precise amount of the contributions due by each institution. Only the act of the Spanish NRA creates, in accordance with national law, an obligation for the institutions to pay their ex ante contributions.
40 The procedure for the collection of ex ante contributions is based on ‘close cooperation’ between the SRB and the NRAs. However, the legal framework does not provide any clear answer to the question of which court has the power to carry out a judicial review of the procedure for the collection of ex ante contributions. The legal framework in place does nevertheless ensure that it is the NRAs that are responsible for adopting the final decision on the collection of contributions, in accordance with the principles which underlie the IGA. Consequently, it can be inferred that the intention of the legislature was to transfer to the national courts the power to review the procedure for the collection of ex ante contributions. In addition, in the event that questions arise in relation to the validity or the interpretation of acts of EU institutions or agencies, national courts can request the Court of Justice to give a preliminary ruling.
41 In accordance with that reasoning, there are, the SRB argues, many examples where ex ante contributions have been challenged before the competent courts or authorities at national level. Some NRAs have adopted the same approach by considering that national courts and bodies have jurisdiction to review the legal acts which they have adopted as part of the procedure for the collection of ex ante contributions.
42 The applicant disputes the SRB’s position and maintains that the action is admissible.
43 According to the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to that person, and against a regulatory act which is of direct concern to that person and does not entail implementing measures.
44 Thus, the fourth paragraph of Article 263 TFEU restricts actions for annulment brought by a natural or legal person to three categories of acts, that is to say, firstly, acts addressed to that person, secondly, acts not addressed to that person and which are of direct and individual concern to that person and, thirdly, regulatory acts not addressed to that person, which are of direct concern to that person and which do not entail implementing measures (see order of 10 December 2013, von Storch and Others v ECB, T‑492/12, not published, EU:T:2013:702, paragraph 29 and the case-law cited).
45 With regard to the condition laid down in the first paragraph of Article 263 TFEU, it is settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in its legal position are acts or decisions which may be the subject of an action for annulment (see order of 21 April 2016, Borde and Carbonium v Commission, C‑279/15 P, not published, EU:C:2016:297, paragraph 37 and the case-law cited).
46 In addition, in the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, a measure will be open to review only if it is a measure definitively laying down the position of the institution upon conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (see order of 9 March 2016, Port autonome du Centre et de l’Ouest and Others v Commission, T‑438/15, EU:T:2016:142, paragraph 20 and the case-law cited).
47 Moreover, it is clear from the case-law that, where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of that party by bringing about a distinct change in its legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (see order of 6 March 2014, Northern Ireland Department of Agriculture and Rural Development v Commission, C‑248/12 P, not published, EU:C:2014:137, paragraph 33 and the case-law cited).
48 In that regard, it is settled case-law, first, that natural or legal persons other than those to whom a decision is addressed may claim to be individually concerned by that decision only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 2 April 1998, Greenpeace Council and Others v Commission, C‑321/95 P, EU:C:1998:153, paragraphs 7 and 28).
49 Second, it is settled case-law that the condition that the decision forming the subject matter of the proceedings must be of direct concern to a natural or legal person requires the contested measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other, intermediate rules (see judgment of 22 March 2007, Regione Siciliana v Commission, C‑15/06 P, EU:C:2007:183, paragraph 31 and the case-law cited).
50 It is clear from the case-law that, even where the disputed act necessarily requires the adoption of implementing measures if it is to affect the legal situation of individuals, the condition of direct concern is nevertheless considered to be satisfied if the act imposes obligations on the addressee thereof for its implementation and if the addressee is automatically required to take measures that alter the applicant’s legal situation (see, to that effect, judgment of 7 July 2015, Federcoopesca and Others v Commission, T‑312/14, EU:T:2015:472, paragraph 38 and the case-law cited).
51 As Advocate General Wathelet noted in his Opinion in Stichting Woonpunt and Others v Commission (C‑132/12 P, EU:C:2013:335, point 68 and the case-law cited), the absence of discretion on the part of the Member States overturns the apparent absence of a direct link between an act of the European Union and the individual. In other words, in order to preclude direct concern, the discretion of the author of the intermediate act seeking to implement the act of the European Union cannot be purely formal. It must be the source of the legal effect on the applicant.
52 In the present case, firstly, it is apparent from the applicable rules, in particular from Article 54(1)(b) of Regulation No 806/2014 and Article 70(2) of that regulation, that the body that both actually calculated the individual contributions and made the decision approving those contributions was the SRB. The fact that there may be cooperation between the SRB and the NRAs does not alter that finding (order of 19 November 2018, Iccrea Banca v Commission and SRB, T‑494/17, EU:T:2018:804, paragraph 27).
53 The SRB alone is competent to calculate, ‘after consulting the ECB or the national competent authority and in close cooperation with the [NRAs]’, the ex ante contributions of the institutions (Article 70(2) of Regulation No 806/2014). In addition, the NRAs have an obligation under EU law to collect those contributions as determined by the decision of the SRB (Article 67(4) of Regulation No 806/2014).
54 The decision of the SRB determining the ex ante contributions, pursuant to Article 70(2) of Regulation No 806/2014, is therefore definitive in nature.
55 Consequently, the contested decision cannot be classified as a purely preparatory measure or as an intermediate measure, since it definitively lays down the position of the SRB, upon conclusion of the procedure, on the contributions.
56 Secondly, whatever terminological variations there may be between the linguistic versions of Article 5 of Implementing Regulation 2015/81, the bodies to which the SRB, which makes the decision determining the ex ante contributions, addresses that decision are the NRAs, not the institutions. The NRAs are, in practice and in implementation of the applicable rules, the only bodies to which the issuer of the decision in question is required to send it and therefore, ultimately, the persons to which that decision is addressed within the meaning of the fourth paragraph of Article 263 TFEU (order of 19 November 2018, Iccrea Banca v Commission and SRB, T‑494/17, EU:T:2018:804, paragraph 28).
57 The finding that the NRAs are the addressees of the SRB decision within the meaning of the fourth paragraph of Article 263 TFEU is, moreover, corroborated by the fact that, in the system established by Regulation No 806/2014 and under Article 67(4) of that regulation, they are responsible for raising the individual contributions decided on by the SRB from the institutions (order of 19 November 2018, Iccrea Banca v Commission and the SRB, T‑494/17, EU:T:2018:804, paragraph 29).
58 While the institutions are therefore not addressees of the contested decision, they are nonetheless individually and directly concerned by that decision, to the extent to which it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of these factors, distinguishes them individually just as in the case of the person addressed, and it affects directly their legal situation and leaves no discretion to the addressees of that measure, which are entrusted with the task of implementing it.
59 In that regard, on the one hand, the contested decision mentions each of the institutions by name and determines its individual contribution. It follows that the institutions, of which the applicant is one, are individually concerned by the contested decision.
60 On the other hand, with regard to direct concern, it should be pointed out that the NRAs, which are entrusted with the task of implementing the contested decision, have no discretion concerning the amounts of the individual contributions determined in that decision. The NRAs may not, in particular, modify those amounts and they are required to collect them from the institutions concerned.
61 In addition, with regard to the reference made by the SRB to the IGA in order to dispute the claim that the applicant is directly concerned, it should be pointed out that that agreement does not concern the collection by the NRAs of the 2016 ex ante contributions from the institutions, but only the transfer of those contributions to the SRF.
62 As is apparent from the provisions of Regulation No 806/2014 (see recital 20 and Article 67(4) of that regulation) and the IGA (see recital 7, Article 1(a) and Article 3 of the IGA), the collection of contributions is carried out pursuant to EU law (namely Directive 2014/59 and Regulation No 806/2014), whereas the transfer of those contributions to the SRF is carried out pursuant to the IGA.
63 Thus, even though the legal obligation devolving on the institutions to pay, into the accounts indicated by the NRAs, the sums due by way of their ex ante contributions requires the adoption of national acts by the NRAs, the fact remains that those institutions are nonetheless still directly concerned by the decision of the SRB which determined the amount of their individual contributions.
64 It follows from the foregoing considerations that the applicant is individually and directly concerned by the contested decision.
65 As to the SRB’s argument that the action is inadmissible because it is directed against the act of the Spanish NRA, which is the only act annexed to the action, and not against the decision of the SRB, this must be rejected for the following reasons.
66 The applicant repeatedly and consistently refers, in the application, to the decision of the SRB determining the 2016 ex ante contribution as being the act which it seeks to have annulled. It is apparent from the application that the letter from the Spanish NRA of 26 April 2016 is produced and referred to in the application only as the means by which that decision was, in substance, brought to the applicant’s attention.
67 The applicant also indicates that it asked the Spanish NRA for the text of the decision of the SRB, but to no avail, and it points out that the SRB had not published that decision, a fact which the SRB does not dispute.
68 Thus, and contrary to what the SRB suggests, the application is unambiguous as to the act which the applicant seeks to have annulled.
69 In the light of the foregoing considerations, the objection raised by the SRB, requesting the Court to dismiss the action as inadmissible, must be rejected.
Substance
70 It is necessary to examine the public-policy plea alleging infringement of essential procedural requirements, which, according to settled case-law, the Courts of the European Union are required to raise of their own motion (see judgment of 13 December 2013, Hungary v Commission, T‑240/10, EU:T:2013:645, paragraph 70 and the case-law cited), and, in that context, to examine the question of compliance with the procedural requirements relating to the adoption of the contested decision.
71 In that regard, as mentioned in paragraph 22 above, the Court, by a measure of organisation of procedure of 12 March 2018, requested the SRB to lodge its observations on the question of the legal existence of the contested decision and on that of compliance with essential procedural requirements in the context of its adoption.
72 In its response of 27 March 2018, the SRB maintained that the contested decision existed in law. With regard to the essential procedural requirements, it considered, in essence, that these had been respected. The adoption procedure did not involve any infringement in that regard.
73 In their observations of 26 and 30 July 2018, the Commission and the applicant stated, in essence, that they believed that the contested decision existed in law and that the essential procedural requirements had been respected.
74 It should be recalled that the Court of Justice has held that, since the intellectual component and the formal component form an inseparable whole, reducing the act to writing is the necessary expression of the intention of the adopting authority (judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraph 70, and of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 38).
75 The authentication of the act is intended to guarantee legal certainty by ensuring that the text adopted by the author of the act becomes definitive, and constitutes an essential procedural requirement (judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraphs 75 and 76, and of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraphs 40 and 41).
76 The Court of Justice has also held that it is the mere failure to authenticate the act which constitutes the infringement of an essential procedural requirement and that it is not necessary also to establish that the act is vitiated by some other defect or that the lack of authentication resulted in harm to the person relying on it (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 42).
77 Checking compliance with the requirement of authentication and, thus, the definitive nature of the act is a preliminary to any other review, such as that of the competence of the author of the act, or of compliance with the principle of collegiality or with the duty to provide reasons for the act (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 46).
78 If the EU Court finds, on examining the act produced before it, that the act has not been properly authenticated, it must of its own motion raise the issue of infringement of an essential procedural requirement through failure to carry out proper authentication and, in consequence, annul the act vitiated by such a defect (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 51).
79 It is of little importance in this regard that the lack of authentication has not caused any harm to a party to the dispute. Authentication of acts is an essential procedural requirement within the meaning of Article 263 TFEU that is crucial for legal certainty; infringement of that requirement results in annulment of the defective act without there being any need to establish the existence of such harm (judgment of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 52; see also, to that effect, judgment of 8 September 2016, Goldfish and Others v Commission, T‑54/14, EU:T:2016:455, paragraph 47).
80 In the present case and as already indicated, the Court has found it necessary to adopt certain measures of organisation of procedure and of inquiry relating, in essence, to the contested decision, its existence and compliance with essential procedural requirements.
81 In response to the first order, requiring it to produce a full copy of the original of the contested decision, including the single annex thereto, the SRB produced, on 15 January 2018, in the case of the text of the contested decision, a two-page document in the form of a scanned copy, in PDF format, of a signed paper document, which suggested that those pages were indeed copies of the original, that is to say, copies of the document which was formally presented for signature and adopted by the SRB in its executive session. In the case of the annex, the SRB did not produce a copy of the original, but merely a document in the form of a computer generation, in PDF format, of digital data, which did not contain anything allowing its authenticity to be guaranteed.
82 By a second measure of organisation of procedure, and subsequently by the second order, the Court requested the SRB to clarify the format of the annex at the time of the adoption of the contested decision and, in the event that that annex was presented in digital format, to explain that fact and to provide all of the technical authenticating evidence necessary to prove that the document generated in PDF format, produced before the Court, corresponded to that which had in fact been presented for signature and adopted by the SRB, in its executive session, at its meeting on 15 April 2016. The Court also asked the SRB to lodge its observations on the question of the legal existence of the contested decision and on that of compliance with essential procedural requirements.
83 In its response to the second measure of organisation of procedure and the second order, the SRB argued, for the first time, that the contested decision had been adopted, not at a meeting of the members of the executive session of the SRB, but by means of the written procedure, in electronic format, in accordance with Article 7(5) of the RPES – according to which all communications and documents relevant for the executive session must, in principle, be effected electronically, respecting the confidentiality rules in accordance with Article 15 of the RPES – and with Article 9 of the RPES.
84 With regard to the procedure for the adoption of the contested decision, it is apparent from the case file that, by email of 13 April 2016 sent at 17.41 by the SRB to the members of the executive session and containing three attachments, including a document in PDF format entitled ‘Memorandum2_Final results.pdf’, the executive session of the SRB was asked formally to approve the 2016 ex ante contributions by 12.00 on 15 April 2016.
85 By email of 15 April 2016 sent at 19.04, the SRB indicated that an error had been made in the calculation of the contributions, announced that an amended version of a document entitled ‘Memorandum 2’ would be sent and stated that, unless any of the addressees objected, the approval already given would be treated as also covering the corrected amounts.
86 By email of 15 April 2016 sent at 20.06, the document mentioned was sent in XLSX format, under the designation ‘Final results15042016.xlsx’.
87 Finally, the SRB asserted at the hearing that the instrument embodying the contested decision had been electronically signed by the Chair of the SRB.
88 It must, however, be held that, far from providing or even offering to provide proof of such an assertion, consisting, in principle, of the production of the digital instrument and the electronic signature certificate guaranteeing its authenticity, the SRB has produced evidence which, in reality, contradicts that assertion.
89 With regard to the text of the contested decision, the SRB has produced a PDF document the last page of which contains the likeness of a handwritten signature which appears to have been appended by ‘copying and pasting’ an image file, and which does not contain an electronic signature certificate.
90 As for the annex to the contested decision, which contains the amounts of the contributions and which, as a result, constitutes an essential element of the decision, it does not contain an electronic signature either, even though it is in no way inextricably linked to the text of the contested decision.
91 In order to establish the authenticity of the annex to the contested decision, the SRB produced, in response to the second order, a document in TXT format seeking to establish that the hash value of that annex is identical to the hash value identified for the document in XLSX format attached to the email of 15 April 2016 sent at 20.06.
92 However, it must be observed that, in order to prove that the annex to the contested decision had been the subject of an electronic signature, as is maintained by the SRB (see paragraph 87 above), the SRB ought to have produced an electronic signature certificate linked to that annex and not a TXT document containing a hash value. The production of such a TXT document suggests that the SRB was not in possession of an electronic signature certificate and that the annex to the contested decision was therefore not, contrary to what the SRB asserts, the subject of an electronic signature.
93 In addition, the document in TXT format produced by the SRB is in no way objectively and inextricably linked to the annex at issue.
94 Finally, it should be pointed out, for the sake of completeness, that the authentication required is not, in any event, that of the draft submitted for approval by the email of 15 April 2016 sent at 20.06, but that of the instrument which is supposed to have come into existence after that approval. It is only following the approval that the instrument comes into existence and is authenticated by the appending of a signature.
95 It follows from the foregoing considerations that the requirement for authentication of the contested decision is not satisfied.
96 Over and above those findings concerning the failure to authenticate the contested decision, which in itself requires, according to the case-law referred to in paragraphs 76 to 79 above, the contested decision to be annulled, the Court considers it appropriate to set out certain considerations relating to the procedure for the adoption of that decision.
97 In the present case, as indicated in paragraph 84 above, the written procedure for the adoption of the contested decision was initiated by an email of 13 April 2016 sent at 17.41, giving the members of the executive session of the SRB until 15 April 2016 at 12.00 to approve the draft decision, thus a period of less than two working days, whereas the period provided for by Article 9(2) of the RPES is ‘normally … not less than five working days’. Contrary to the requirements of the RPES, the email of 13 April 2016 does not give any reason for the shortening of the period. Nor does it refer to Article 9(2) of the RPES.
98 Furthermore, and for the sake of completeness, it should be pointed out that the SRB has not proved that there was a pressing need to take a decision on 15 April 2016 rather than on 20 April 2016, a date which would have ensured compliance with the procedural rules. In that regard, it should be observed that 15 April 2016 is not a date imposed by the rules. That shortening of the period for the adoption of the decision constitutes a first procedural irregularity.
99 Moreover, Article 9(1) of the RPES provides that decisions may be taken by written procedure, unless at least two members of the executive session object within the first 48 hours of the launch of the written procedure.
100 In that regard, it transpires that the SRB also infringed the RPES inasmuch as the period of time set for the written procedure was six hours shorter than the 48 hours allowed for objecting to the use of the written procedure. On the assumption that it was necessary to adopt the decision on 15 April 2016, there was nothing to prevent the deadline for responding from being set at 18.00 on that day. This constitutes a second procedural irregularity.
101 The SRB errs in attempting to justify those infringements of the RPES on the basis that no objections were expressed by the members of the executive session of the SRB. It is sufficient to observe, on the one hand, that the SRB is obliged to apply the rules governing its decision-making process, which specifically allow for the shortening of the time periods provided that certain rules are respected and, on the other, that the alleged absence of objections in no way eliminates the infringement committed initially when the SRB imposed a time limit contrary to the requirements of the RPES.
102 Next, while the email of 13 April 2016 asked the members of the executive session of the SRB to provide their formal approval by email sent to the mailbox of the SRB, the SRB has not produced any approval emails. The only evidence referring to an approval is the statement by the SRB, in the email of Friday 15 April 2016 sent at 19.04, that such approval had been given.
103 In addition, in that email of Friday 15 April 2016 sent at 19.04, which was not addressed to all the members of the executive session, initially at least (A, a member of the executive session of the SRB, was not an addressee of that email, which was sent to him 21 minutes later), the SRB noted an error in the calculation of the ex ante contributions and announced that an amended version of ‘Memorandum 2’ would be sent by separate email. The email of 19.04 added, without providing a time limit for a possible response, that, in the absence of any objections by the members of the executive session of the SRB, the approval already given by them would be regarded as also applying to the amended contribution amounts. In so doing, the SRB initiated an adoption procedure based on the failure to object, a procedure which is, admittedly, not unknown in the provisions of the RPES, but which was nonetheless used in practice in irregular circumstances, given, in particular, that no time limit was stated for the adoption of the decision. This constitutes, in addition to the two irregularities already identified in paragraphs 97 to 100 above, a third procedural irregularity.
104 Thus, on the same day, at 20.06, the SRB’s separate email, attaching an XLSX document entitled ‘Final results15042016.xlsx’ was sent. Once again, that email was not sent to A. The latter circumstance constitutes a fourth procedural irregularity.
105 Moreover, it follows from the date of the contested decision (15 April 2016) that, even though no time limit was stated in the email of 15 April 2016 sent at 19.04, consensus was deemed to have been reached on the same day, and therefore, logically, at midnight. Admittedly, the SRB had stated, in its email of 13 April 2016 (attached to the email of 15 April 2016 sent at 19.04), that it was aiming to adopt the decision on 15 April. On the assumption that that information was sufficient to indicate that any objections had to be expressed before midnight on 15 April 2016, the fact remains that, in the present case, a consensus-based approval procedure was put into effect on a Friday evening at 19.04 with a view to its being concluded that same evening by midnight. Those circumstances compound the effects of the third procedural irregularity established in paragraph 103 above.
106 It is still less settled that that consensus procedure was lawful given that, over and above the fact that the email of 20.06 was not sent to A (see paragraph 104 above), a failure which, in itself, vitiates the procedure, the SRB has not proved that the other members of the executive session of the SRB became aware either that the email of 20.06 (or, for that matter, the email of 19.04) had been sent, or of its content. The SRB produced certain evidence of verification seeking to establish that the emails sent at 19.04 and 20.06 had reached the mailboxes of the addressees. However, regardless even of the fact that that verification, carried out by questionnaire, does not concern all the members of the executive session of the SRB, it does not in any way prove that the members of the executive session of the SRB actually became aware even of the fact that those emails had been sent before midnight on the same evening.
107 In the light of the very nature of a consensus procedure whereby approval is inferred from the absence of objections, such a procedure, necessarily and as a minimum, requires that it be established, before the adoption of the decision, that the persons participating in the consensus-based approval procedure have been informed of that procedure and have been able to examine the draft submitted for their approval. In the present case, the contested decision was adopted, in view both of the statements appearing in the text of that decision and of the fact that it was sent to the NRAs on that same day (see paragraph 13 above), at midnight on 15 April 2016 at the latest. However, the SRB has not proved that it had been established, before midnight, that the members of the executive session of the SRB had been able to read the amended draft decision or even merely to apprise themselves of the existence of the emails of 19.04 and 20.06.
108 In addition, and by way of an incidental point, it should be pointed out that, while the annex to the contested decision presented for approval on 13 April 2016 was a digital document in PDF format (see paragraphs 84 and 97 above), the annex presented for approval on the evening of 15 April 2016 was a digital document in XLSX format (see paragraphs 86 and 104 above).
109 Thus, it should be observed that, if the error referred to in the emails of the evening of 15 April 2016 (see paragraph 85 above) had not arisen, a digital document in PDF format would have been adopted as the annex to the contested decision, and not an XLSX file.
110 The Court cannot but find, with regard to that difference, that the SRB, although obliged to ensure the unity and formal coherence of the documents submitted for approval and thereafter adopted, used different electronic formats. The consequences of that imprecision are more than purely procedural, inasmuch as the information conveyed by a PDF file does not provide any details in respect of the formula cells of an XLSX file and such a PDF file contains, in the present case at least, rounded values, unlike an XLSX file. Thus, with regard to the only risk adjustment factor appearing in the contested decision, namely that relating to the European environment, it is apparent from the information contained in the SRB’s responses that the value provided in the contested decision, as produced in response to the first order, that is in a PDF file, is not the exact value appearing in the XLSX file – which contains 14 decimal places – but a figure rounded to two decimal places which cannot be used to verify the calculation of the contribution.
111 It follows from the foregoing considerations that, even over and above the lack of authentication established in paragraph 95 above, which requires that the contested decision be annulled, the procedure for the adoption of that decision was conducted in clear breach of procedural requirements relating to the approval of that decision by the members of the executive session of the SRB and to the securing of that approval.
112 In that regard, it should be observed that the fact that natural or legal persons may not rely on a breach of rules which are not intended to ensure protection for individuals, but the purpose of which is to organise the internal functioning of services in the interests of good administration (see, to that effect, judgment of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 49 and 50), does not, however, mean that an individual can never successfully plead infringement of a rule governing the decision-making process leading to the adoption of an act of the European Union. Among the provisions governing the internal procedures of an institution, a distinction must be made between, on the one hand, those in respect of which natural and legal persons cannot plead infringement, because they concern only the rules governing the internal functioning of the institution and can have no effect on the legal situation of those persons, and, on the other hand, those provisions which, if infringed, may, on the contrary, be relied on as they create rights and are a factor contributing to legal certainty for those persons (judgment of 17 February 2011, Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, T‑122/09, not published, EU:T:2011:46, paragraph 103).
113 In the present case, an analysis of the course of the procedure followed for the adoption of the contested decision reveals a significant number of breaches of rules relating to the organisation of an electronic written procedure for the adoption of decisions. Although Article 9 of the RPES does not expressly make provision to that effect, it goes without saying that any written procedure necessarily involves sending the draft decision to all the members of the decision-making body concerned by that procedure. In the case, in particular, of a procedure for the adoption of a decision by consensus, as in the present case (see paragraphs 103 to 107 above), the decision cannot be adopted unless it is established, at the very least, that all the members had been able to read the draft decision beforehand. Finally, that procedure requires that a time limit be stated which allows the members of that body to adopt a position on the draft.
114 However, those rules of procedure, which seek to ensure compliance with the essential procedural requirements inherent in any electronic written procedure and in any consensus-based adoption procedure, were not respected in the present case. Those breaches have a direct effect on legal certainty, since they have led to the adoption of a decision in respect of which it has not been established not only that it was approved by the competent body but even that all its members had read it beforehand.
115 Failure to comply with such procedural rules necessary for the expression of consent constitutes an infringement of essential procedural requirements which the Courts of the European Union may examine of their own motion (judgments of 24 June 2015, Spain v Commission, C‑263/13 P, EU:C:2015:415, paragraph 56, and of 20 September 2017, Tilly-Sabco v Commission, C‑183/16 P, EU:C:2017:704, paragraph 116).
116 In the light of all the foregoing considerations concerning the infringement of the essential procedural requirements relating to the adoption of the contested decision and of the annex thereto, that decision must be annulled to the extent to which it concerns the applicant.
Costs
117 Under 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 did not apply for costs and the SRB has been unsuccessful, each of the principal parties is to bear its own costs.
118 In accordance with Article 138(1) of the Rules of Procedure, the Commission is to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1. Annuls the decision of the Single Resolution Board (SRB) in its executive session of 15 April 2016 on the 2016 ex ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/06) to the extent to which it concerns Banco Cooperativo Español, SA;
2. Orders Banco Cooperativo Español and the SRB to bear their own respective costs;
3. Orders the European Commission to bear its own costs.
Delivered in open court in Luxembourg on 28 November 2019.
[Signatures]