Case T‑496/11

United Kingdom of Great Britain and Northern Ireland

v

European Central Bank (ECB)

(Economic and monetary policy — ECB — Action for annulment — Eurosystem Oversight Policy Framework — Challengeable act — Admissibility — Oversight of payment and securities settlement systems — Application to central counterparty clearing systems of a requirement to be located in a Member State party to the Eurosystem — Competence of the ECB)

Summary — Judgment of the General Court (Fourth Chamber), 4 March 2015

1.      Actions for annulment — Actionable measures — Acts intended to have legal effects — Policy framework published by the European Central Bank requiring that central counterparties intended to clear transactions in respect of securities be located within the euro area — Included

(Art. 263 TFEU)

2.      Actions for annulment — Action brought against a measure confirming an earlier measure not challenged within the time-limit — Inadmissibility — Concept of confirmatory measure — Measure amending a provision of an earlier measure — Not included

(Art. 263 TFEU)

3.      Actions for annulment — Actions of the Member States — Action against a measure of the ECB — Admissibility not subject to proof of interest in bringing proceedings — Member State concerned not participating in certain aspects of economic and monetary union — Irrelevant

(Art. 263, second and fourth paras, TFEU; Protocols No 4 and No 15 annexed to the EU and FEU Treaties)

4.      European Central Bank — Competences of the European System of Central Banks — Promoting the smooth operation of payment systems — Adoption of an oversight policy framework on the clearing of securities — Not included

(Art. 127(2) TFEU; Protocol No 4 annexed to the EU and FEU Treaties, Art. 22)

5.      European Union — Conferred powers — Implicit attribution — Conditions — No implicit power of the ECB to regulate securities clearing systems

(Arts 13(2) TEU and 48 TEU; Art. 129(3) TFEU; Protocol No 4 annexed to the EU and FEU Treaties, Art. 22)

1.      A Eurosystem policy framework, published by the European Central Bank, establishing a location policy that applies to central banks established in Member States not forming part of the Eurosystem, constitutes an act against which an action for annulment may be brought under Article 263 TFEU.

In order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under Article 263 TFEU can be brought against it, it is necessary to examine its wording and context, its substance and the intention of its author. So far as concerns, in the first place, the wording and the context of the contested act, that examination enables the way in which the parties concerned could reasonably have perceived that act to be assessed. The passage of the policy framework concerning the location of central counterparties (CCPs) intended to clear transactions in respect of securities, publicised outside the ECB itself, uses wording of a mandatory nature and is particularly specific, facilitating its application. Similarly, since the regulatory authorities of Member States of the Eurozone might take the view that they are required to enforce compliance with the location requirement set out in the policy framework, a CCP not meeting the criteria set out in that framework could be denied access to the other operators involved in the processing chain for transactions in securities.

In the second place, concerning the substance of the policy framework, formulation of a requirement that CCPs whose activity exceeds the thresholds that the policy framework specifies should be located within the euro area is equivalent to the addition of a new rule in the legal order, such a requirement not appearing in any pre-existing legal provision. In the third place, concerning the ECB’s intention when adopting the policy framework, the latter is intended to impose compliance with a location requirement for CCPs whose activity exceeds the thresholds that it sets and therefore, in the absence of indications to the contrary in the text of the policy framework, constitutes the ECB’s definitive position.

(see paras 31, 32, 34, 37, 39, 45, 48, 50, 51, 53, 54)

2.      An action for the annulment of a decision which merely confirms a previous decision not challenged within the time-limit for bringing proceedings is inadmissible. However, a decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any re-examination of the situation of the person to whom the earlier measure was addressed. Where a provision in a regulation is amended, a fresh right of action arises, not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it.

Thus, concerning an action brought against a policy framework published by the ECB, establishing a localisation policy applicable to CCPs established in Member States not forming part of the Eurosystem, the fact that the ECB may have expressed in earlier acts the principle of a location policy which could apply to CCPs does not mean that the policy framework must be classified as a confirmatory act, as long as the location policy at issue is set out there in an amended form.

(see paras 59-62)

3.      As a Member State, the United Kingdom has standing to bring proceedings against acts of the ECB on the basis of the second paragraph of Article 263 TFEU and is not subject to the conditions in the fourth paragraph of Article 263 TFEU. Moreover, even if, pursuant to Protocol No 15 to TFEU, certain provisions of TFEU and the Statute of the ESCB and of the ECB (‘the Statute’) do not apply to the United Kingdom, the latter nevertheless has the right to bring an action in order to obtain verification by the EU judicature that the ECB has not exceeded its powers.

(see paras 73, 75)

4.      The ECB does not have the competence necessary to regulate the activity of securities clearing systems, so that a policy framework requiring CCPs involved in the clearing of securities to be located within the euro area must be annulled for lack of competence.

Article 22 of the Statute provides that the ECB and national central banks may provide facilities, and the ECB may make regulations, to ensure efficient and sound clearing and payment systems within the Union and with other countries, that power being one of the means available to the ECB for performing the task, entrusted to the Eurosystem by Article 127(2) TFEU, of promoting the smooth operation of payment systems. However, a ‘payment system’ within the meaning of Article 127(2) TFEU falls within the field of the transfer of funds. Therefore, whilst such a definition may include the ‘cash’ leg of clearing operations, that is not true of the ‘securities’ leg of the clearing operations of a CCP, since while such securities may be regarded as being the subject-matter of a transaction giving rise to the transfer of funds, they do not, however, in themselves constitute payments. A similar conclusion is also required in respect of the term ‘clearing and payment systems’ that is used in Article 22 of the Statute.

It necessarily follows that the ability which the ECB is granted by the said Article 22 to adopt regulations must be regarded as limited to payment clearing systems alone. Consequently, in the absence of an explicit reference to the clearing of securities in Article 22 of the Statute, it must be concluded that the choice of the term ‘clearing and payment system’ is intended to make it clear that the ECB has competence to adopt regulations to ensure efficiency and safety of payment systems, including those with a clearing stage, rather than granting it an autonomous regulatory competence in respect of all clearing systems.

(see paras 88, 89, 97-101, 110)

5.      When an article of the Treaty confers a specific task on an institution, it must be accepted, if that provision is not to be rendered wholly ineffective, that it confers on that institution necessarily and per se the powers which are indispensable in order to carry out that task. However, the existence of an implicit regulatory power, which constitutes a derogation from the principle of conferral laid down by Article 13(2) TEU, must be appraised strictly. It is only exceptionally that such implicit powers are recognised by case-law and, in order to be so recognised, they must be necessary to ensure the practical effect of the provisions of the Treaty or the basic regulation at issue.

Whilst it is true that there are very close links between payment systems and securities clearing systems, and that disturbances affecting securities clearing infrastructures may have repercussions for payment systems and be injurious to their smooth operation, the existence of those links cannot be sufficient to justify accepting that the ECB has implicit powers to regulate securities clearing systems, since the FEU Treaty envisages the possibility of such powers being conferred explicitly upon the ECB. Article 129(3) TFEU provides for a simplified amendment mechanism — derogating from the mechanism in Article 48 TEU — in respect of certain provisions of the Statute, including Article 22 thereof.

(see paras 104-108)