JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
25 October 2023 (*)
(Arbitration clause – Single resolution mechanism for credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Contracts concerning the irrevocable payment commitment and the collateral arrangements – Rejection of the request for return of collateral linked to ex ante contributions provided in the form of irrevocable payment commitments – Institution whose authorisation has been withdrawn – Article 7(3) of Implementing Regulation (EU) 2015/81 – Non-contractual liability – Unjust enrichment)
In Case T‑688/21,
BNP Paribas Public Sector SA, established in Paris (France), represented by A. Champsaur and A. Delors, lawyers,
applicant,
supported by
French Republic, represented by A.-L. Desjonquères and E. Leclerc, acting as Agents,
and by
Fédération bancaire française (FBF), established in Paris, represented by A. Gosset-Grainville and M. Trabucchi, lawyers,
interveners,
v
Single Resolution Board (SRB), represented by C. De Falco, C. Flynn and J. Kerlin, acting as Agents, and by H.-G. Kamann, F. Louis, P. Gey, É. Bruc and A. Vallery, lawyers,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse (Rapporteur) and B. Ricziová, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 20 April 2023,
gives the following
Judgment
1 By its action, the applicant, BNP Paribas Public Sector SA, seeks, in essence, in the first place, on the basis of Article 272 TFEU and the first paragraph of Article 340 TFEU, (i) a declaration that the Single Resolution Board (SRB) infringed its restitution obligation pursuant to Clause 12.5 of the irrevocable payment commitments entered into by it for the contribution periods from 2016 to 2021 and (ii) the return of the sums which the SRB is alleged to have retained in breach of that contractual obligation, as well as all costs, default interest and incidental expenses of any kind relating thereto, and, in the alternative, on the basis of the second paragraph of Article 340 TFEU, compensation for the harm which it is alleged to have suffered as a result of the SRB’s conduct in relation to irrevocable payment commitments entered into for the contribution periods from 2016 to 2021, and, in the second place, on the basis of the second paragraph of Article 340 TFEU, compensation for the harm which it is alleged to have suffered as a result of the SRB’s refusal to return to it the collateral backing the irrevocable payment commitment which it entered into for the 2015 contribution period.
Background to the dispute
2 Following the 2008 financial crisis, which gave rise to the euro area crisis, a regulatory framework aimed at ensuring the stability and safety of banking in the European Union was put in place. That new framework is characterised by a single rulebook, which applies identically to credit institutions in all Member States concerned. The Banking Union is based on three pillars: a single supervisory mechanism (SSM), a single resolution mechanism (SRM) and a European deposit insurance scheme.
3 The SRM, as 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 [SRM] and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1), provides for the creation of a Single Resolution Fund (SRF) to which credit institutions must contribute. That fund is used only to the extent necessary for the effective application of the resolution tools (Article 76(1) of Regulation No 806/2014).
4 In accordance with Article 70 of Regulation No 806/2014, the SRB is to calculate each year the individual contribution of each institution, also known as the ‘ex-ante contribution’.
5 The annual collection of contributions from credit institutions was put in place to ensure that, after an initial period of eight years from 1 January 2016, the available financial means of the SRF reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States (‘the target level’).
6 According to Article 8(3) of 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), during the initial period, under normal conditions, the SRB is to authorise the use of irrevocable payment commitments at the request of an institution. The SRB is to allocate the use of irrevocable payment commitments evenly among those institutions requesting it. The allocated irrevocable payment commitments must not be less than 15% of the total payment obligations of the institution concerned. When calculating the annual contributions of each institution, the SRB must ensure that, in any given year, the sum of those irrevocable payment commitments does not exceed 30% of the total amount of annual contributions raised in accordance with Article 70 of Regulation No 806/2014.
7 The applicant was an authorised French credit institution until 24 March 2021, the date on which it obtained the withdrawal of its authorisation from the European Central Bank (ECB).
8 Before the SRM was implemented, the applicant provided, for 2015, a part of its ex ante contribution in the form of an irrevocable payment commitment. In order to do so, it entered into an irrevocable payment commitment with the SRB, the Autorité de contrôle prudentiel et de résolution (French Authority for Prudential Supervision and Resolution) (ACPR) and the Fonds de garantie des dépôts et de résolution (French Deposit Insurance and Resolution Fund) (FGDR) (‘the 2015 IPC’).
9 For the contribution periods from 2016 to 2021, the applicant provided at least part of its ex ante contributions in the form of an irrevocable payment commitment. To that end, it entered into irrevocable payment commitments with the SRB for each of those periods (‘the 2016-2021 IPCs’).
10 By email of 1 April 2021, the applicant informed the SRB that, at its request, the ECB had withdrawn its authorisation. The applicant then asked the SRB for information on the steps to be taken to obtain reimbursement of the collateral linked to the irrevocable payment commitments which it had entered into.
11 By letter of 14 April 2021, the SRB indicated to the applicant the formalities to be followed in order to obtain repayment of the collateral backing the irrevocable payment commitments which it had entered into.
12 On 29 July 2021, following several exchanges of correspondence, the applicant notified the SRB of the termination of the 2015 IPC and the 2016-2021 IPCs.
13 Following further exchanges, the SRB, by letter of 13 August 2021 (‘the letter of 13 August 2021’), informed the applicant that it would return to it the collateral backing the 2015 IPC and the 2016-2021 IPCs following receipt of an amount in cash corresponding to the amount committed under those commitments.
14 In that letter, the SRB pointed out that the applicant had entered into several irrevocable payment commitments with it. With respect to each of those commitments, the SRB specified the amount committed. After listing those amounts, it stated, inter alia, that, having regard to Article 70(4) of Regulation No 806/2014, according to which duly received contributions are not to be reimbursed to entities, and to Article 7(1) of Implementing Regulation 2015/81, according to which recourse to irrevocable payment commitments must in no manner affect the financial capacity and the liquidity of the SRF, the cancellation of the 2016-2021 IPCs and the subsequent return of collateral backing those commitments could take place only after the payment in cash of an amount equal to the amount of the irrevocable payment commitment concerned. The SRB then invited the applicant to transfer a sum of a certain amount to it and to inform it of this by email. After receipt of that sum, it would return the collateral, less the amount of negative interest accrued, after the expiry of a period of 14 banking days after the day of receipt of the notice of termination.
15 On 25 October 2021, the applicant, in essence, informed the SRB that, since, according to its understanding of the applicable legal framework, it was not required to transfer to the SRB the cash corresponding to the cumulative sum of the amounts committed under the 2015 IPC and the 2016-2021 IPCs in order to be returned the collateral, it would not proceed with that transfer.
Forms of order sought
16 The applicant claims that the Court should:
– annul, on the basis of Articles 256 and 263 TFEU, the letter of 13 August 2021;
– uphold its application made on the basis of Article 272 TFEU and the first paragraph of Article 340 TFEU, by declaring that the position set out in the letter of 13 August 2021 is contrary to the terms of the 2016-2021 IPCs and by ordering the SRB to return to it the sums corresponding to the cash collateral relating to those commitments which the SRB retained in breach of its contractual obligations together with all costs, default interest and incidental expenses of any kind;
– uphold its claim brought on the basis of the second paragraph of Article 340 TFEU, by declaring that the SRB’s refusal to return to it the sums corresponding to the cash collateral linked to the 2015 IPC constitutes unjust enrichment and by ordering the SRB to pay it those sums by way of damages together with all related costs, default interest and incidental expenses of any kind;
– in the alternative, uphold its claim brought on the basis of the second paragraph of Article 340 TFEU, by declaring that the SRB’s refusal to return to it the sums corresponding to the cash collateral linked to the 2016-2021 IPCs constitutes unjust enrichment and by ordering the SRB to pay it those sums by way of damages together with all related costs, default interest and incidental expenses of any kind;
– order the SRB to pay the costs.
17 The SRB contends that the Court should:
– dismiss the application for annulment as inadmissible;
– dismiss the applications under Article 272 TFEU as unfounded;
– dismiss the applications under Article 340 TFEU as inadmissible and, in the alternative, dismiss them as unfounded;
– order the applicant to pay all the costs and expenses incurred by it, in particular those relating to the application for annulment which was the subject of a withdrawal, initially brought under Article 263 TFEU.
18 The French Republic claims that the Court should uphold the applicant’s action.
19 The Fédération bancaire française (FBF) claims that the Court should:
– declare that, by refusing to return the sums corresponding to the cash collateral linked to the 2016-2021 IPCs, the SRB infringed its obligation to repay pursuant to those commitments;
– order the SRB to return to the applicant the sums corresponding to the cash collateral which it has retained in breach of its contractual obligations.
Law
20 In the application, the applicant sought the annulment, pursuant to Article 256 TFEU and Article 263 TFEU, of the letter of 13 August 2021, before withdrawing that head of claim in the course of the proceedings.
21 In those circumstances, it is necessary to examine the applicant’s other heads of claim.
The head of claim based on Article 272 TFEU and the first paragraph of Article 340 TFEU
22 The General Court has jurisdiction to hear the applicant’s application submitted on the basis of Article 272 TFEU, pursuant to the arbitration clauses in Clause 13.2 of each of the 2016-2021 IPCs, which confer jurisdiction on it to rule on any dispute concerning the legality, validity, interpretation or implementation of those agreements.
23 In support of the head of claim based on Article 272 TFEU and the first paragraph of Article 340 TFEU, the applicant, supported by the French Republic and the FBF, submits that the SRB infringed its restitution obligation under Clause 12.5 of the 2016-2021 IPCs.
24 As a preliminary point, it should be recalled that, in accordance with Article 288 TFEU, Regulation No 806/2014 and Implementing Regulation 2015/81 are of general application, are binding in their entirety and are directly applicable in all the Member States concerned. The applicant and the SRB are therefore not free to enter into agreements which run counter to the provisions of those two regulations, as interpreted by the EU judicature.
25 Clause 12.5 of the 2016-2021 IPCs, relied on by the applicant, states that ‘this Agreement is without prejudice to the application of Article 7(3) of the Implementing Regulation 2015/81’. That clause thus notes that the 2016-2021 IPCs may under no circumstances infringe Article 7(3) of Implementing Regulation 2015/81.
26 Thus, by alleging infringement of Clause 12.5 of the 2016-2021 IPCs, the applicant in actual fact claims that its situation, namely that of an establishment which falls outside the scope of Regulation No 806/2014, falls under Article 7(3) of Implementing Regulation 2015/81. According to the interpretation proposed by the applicant, that regulatory provision is clear and does not attach any conditions to the return of the cash collateral backing irrevocable payment commitments. The position expressed in the letter of 13 August 2021, according to which the SRB could repay the cash collateral backing the 2016-2021 IPCs only after payment of a sum of an amount corresponding to that of the contribution for which those instruments were used, is therefore, in the applicant’s view, contrary to Article 7(3) of Implementing Regulation 2015/81.
27 The SRB disputes the applicant’s arguments and, as is apparent from paragraph 14 above, puts forward an interpretation different from that proposed by the applicant.
28 In the first place, it must be pointed out that it follows from Article 70(1) of Regulation No 806/2014 that, for each contribution year, credit institutions established in a participating Member State, as was the case with the applicant, are required to pay the ordinary contribution to the SRF.
29 In accordance with Article 69(1) of Regulation No 806/2014, the annual collection of ex ante contributions from credit institutions was put in place to ensure that, at the end of the initial period, the available financial means of the SRF reach the target level.
30 Taking into account that objective, the EU legislature specified, in Article 70(4) of Regulation No 806/2014, that ‘duly received’ ex ante contributions were not to be reimbursed. By that wording, the EU legislature laid down a rule without exceptions. That is why no mention is made in that provision of the possibility of adjusting ex ante contributions a posteriori (see, to that effect, judgment of 29 September 2022, ABLV Bank v SRB, C‑202/21 P, EU:C:2022:734, paragraph 56). It follows that a change in the status of an institution during the contribution period has no effect on the amount of the contribution due for the year in question. That rule is, moreover, reproduced in Article 12(2) of 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), which also concerns the SRB, as stated in recital 7 of that delegated regulation.
31 In that regard, the Courts of the European Union have held, in particular, that the fact that an entity ceased to carry on the business of a credit institution during the contribution period, as a result of the withdrawal of its licence, did not affect its obligation to pay the full ex ante contribution due in respect of that contribution period (judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 85).
32 In the second place, as the applicant notes, in order to fulfil their obligation to contribute to the SRF, credit institutions have, in accordance with Article 70(3) of Regulation No 806/2014, the possibility either to pay their contribution immediately or to enter into an irrevocable payment commitment.
33 In the third place, Article 7 of Implementing Regulation 2015/81 sets out certain rules applicable to irrevocable payment commitments, which have the particular feature of being contracts entered into for an unlimited duration allowing institutions to defer payment of their contribution. That particular feature led the EU legislature to establish a specific regime particular to those commitments.
34 Article 7 of Implementing Regulation 2015/81 is worded as follows:
‘1. Recourse to irrevocable payment commitments, referred to in Article 70(3) of Regulation (EU) No 806/2014 shall in no manner affect the financial capacity and the liquidity of the [SRF].
2, When a resolution action involves the [SRF] in accordance with Article 76 of Regulation (EU) No 806/2014, the [SRB] shall call part or all of the irrevocable payment commitments, made in accordance with Regulation (EU) No 806/2014, in order to restore the share of irrevocable payment commitments in the available financial means of the [SRF] set by the [SRB] within the maximum threshold set by Article 70(3) of Regulation (EU) No 806/2014.
Once the [SRF] duly receives the contribution linked to the irrevocable payment commitments that have been called, collateral backing such commitments shall be returned. If the [SRF] does not duly receive the required amount of cash at first demand, the [SRB] shall seize the collateral backing the irrevocable payment commitment in accordance with Article 70(3) of Regulation (EU) No 806/2014.
3. The irrevocable payment commitments of an institution that no longer falls within the scope of Regulation (EU) No 806/2014 are cancelled and collateral backing these commitments is returned.’
35 It is in that context that the applicant, supported by the French Republic and the FBF, submits that the cancellation of the irrevocable payment commitment and the return of the collateral provided for in Article 7(3) of Implementing Regulation 2015/81 mean that the part of the ex ante contribution for which an irrevocable payment commitment was entered into does not have to be provided if the contributing institution falls outside the scope of Regulation No 806/2014 and that commitment was not called upon by the SRB in the context of a resolution action. At the hearing, the applicant stated that it was not seeking the return of its cash contributions. It paid 85% of its contribution. It seeks only repayment of the sums which it paid each year as collateral for the irrevocable payment commitments which it entered into. That is why its claim is not contrary to the case-law arising from the judgments of 20 January 2021, ABLV Bank v SRB (T‑758/18, EU:T:2021:28), and of 29 September 2022, ABLV Bank v SRB (C‑202/21 P, EU:C:2022:734).
36 In that regard, it should be noted that, according to its ordinary meaning, ‘irrevocable’ refers to things which cannot be called into question. An irrevocable payment commitment therefore implies an obligation, which cannot be called into question, to pay the sum in respect of which that commitment is entered into.
37 In addition, it is true that, as the applicant submits, Article 7(3) of Implementing Regulation 2015/81 does not expressly state that institutions must first pay their contribution in order for their collateral to be subsequently returned to them. However, as noted in paragraphs 28 and 29 above, institutions established in a participating Member State are required to pay, during the initial period, an annual contribution to the SRF so that the latter reaches the target level at the end of that period.
38 It follows that, if the collateral backing an irrevocable payment commitment were returned without prior receipt of the contribution in respect of which that commitment was entered into, not only would the institution not fulfil its obligation to pay the entire contribution due in respect of the period in which it fell within the scope of Regulation No 806/2014, but the ex ante contribution in the form of an irrevocable payment commitment would not achieve the objective of providing the SRF with financial means corresponding to the level provided for by the EU legislature.
39 As stated in the case-law cited in paragraph 31 above, the fact that an entity ceases to carry on the business of a credit institution during the contribution period, as a result of the withdrawal of its licence, does not affect its obligation to pay the full ex ante contribution due in respect of that contribution period.
40 In order to assess the scope of the obligation to pay that contribution in full, it is not appropriate to confine that assessment, as the applicant maintains, solely to the part of the payment immediately made, without taking account of the other part provided by means of an irrevocable payment commitment.
41 Article 7(1) of Implementing Regulation 2015/81 expressly provides that recourse to irrevocable payment commitments must in no manner affect the financial capacity or the liquidity of the SRF. The cancellation of an irrevocable payment commitment, caused by the withdrawal of the establishment from the scope of Regulation No 806/2014, and the return of the corresponding collateral, provided for in Article 7(3) of Implementing Regulation 2015/81, cannot therefore be to the detriment of the SRF (Opinion of Advocate General Kokott in ABLV Bank v SRB, C‑202/21 P, EU:C:2022:327, point 87). If that were not the case, Article 7(3) of Implementing Regulation 2015/81 would run counter to the objective pursued by the annual collection of ex ante contributions, as set out in Articles 69 and 70 of Regulation No 806/2014.
42 Thus, contrary to the submissions of the French Republic, Article 7(1) of Implementing Regulation 2015/81 applies to the treatment of irrevocable payment commitments of an institution which falls outside the scope of Regulation No 806/2014 and, therefore, Article 7(3) of Implementing Regulation 2015/81 must be interpreted in the light of that provision.
43 That interpretation is consistent with the objective pursued by Article 7(3) of Implementing Regulation 2015/81. As pointed out in paragraph 33 above and as is apparent from Clause 11.2 of the 2016-2021 IPCs, irrevocable payment commitments are entered into for an unlimited duration. However, it is not desirable that those agreements should continue when, like the applicant, an entity ceases its activities as a credit institution and thus leaves the group of entities, falling within the scope of Regulation No 806/2014, which are liable to pay the contribution. Therefore, as the SRB rightly asserts, the purpose of the cancellation of the irrevocable payment commitment provided for in Article 7(3) of Implementing Regulation 2015/81 is to put an end to that commitment, with the result that it does not continue after the contributing institution has left the scope of Regulation No 806/2014.
44 The purpose of Article 7(3) of Implementing Regulation 2015/81 is therefore not to enable institutions which fall outside the scope of that regulation to avoid their obligation to pay in full the contribution due, as the applicant and the interveners claim; rather, it is intended to ensure that the financial means of the SRF will be available to the SRB as quickly as possible in the event of a resolution, that is to say, to safeguard the financial capacity and liquidity of the SRF.
45 Furthermore, the fact that the departure of an institution reduces the total amount of covered deposits, and therefore the target level, even if it were established, does not relieve that institution of paying in full the ex ante contribution due in respect of the contribution period.
46 In that regard, it is common ground that, every 1 January from 2016 to 2021, the applicant fell within the scope of Regulation No 806/2014 and was thus liable to pay the contribution to the SRF.
47 For each of those years, in accordance with Article 70(2) of Regulation No 806/2014, the SRB calculated the applicant’s individual contribution on the basis, inter alia, of its projection, the year in question, of the target level to be reached at the end of the initial period. Therefore, the fact that the target level may change, after the applicant’s exit from the scope of Regulation No 806/2014, cannot have any effect on the calculation, and therefore on the amount, of the contributions due for the period prior to its departure from the system. Consequently, contrary to what the French Republic and the FBF suggest, the fact that the applicant’s exit from the scope of Regulation No 806/2014 could influence the target level, if it were established, could not justify altering the amount of the contributions which it was required to pay for the years 2016 to 2021. Nor can that justify the repayment of the collateral backing the 2016-2021 IPCs without the prior payment of the contributions in respect of which those commitments were entered into.
48 Moreover, it has already been held that the departure of an institution from the scope of Regulation No 806/2014 did not entitle it to a new calculation of the ex ante contribution since, if the SRB had to take into account the evolution of the legal and financial situation of credit institutions during the contribution period concerned, it would be difficult for it to calculate reliably and stably the contributions due by each of them and to pursue the objective of reaching, at the end of the initial period, at least 1% of the amount of deposits covered by all institutions authorised in the territory of a Member State (judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 75 and 76).
49 For the same reason, the applicant and the interveners cannot maintain that it is for the SRB to return to the applicant the collateral backing the 2016-2021 IPCs without prior receipt of the contributions for which those commitments were entered into and to adjust the future individual contributions of the other institutions to ensure that the target level is reached.
50 It follows from the foregoing that the cancellation of the irrevocable payment commitment and the return of the collateral provided for in Article 7(3) of Implementing Regulation 2015/81 cannot mean that the part of the ex ante contribution for which an irrevocable payment commitment has been entered into does not have to be provided where the contributing institution falls outside the scope of Regulation No 806/2014 (Opinion of Advocate General Kokott in ABLV Bank v SRB, C‑202/21 P, EU:C:2022:327, point 87). That institution remains liable to pay the full individual contribution regularly calculated by the SRB for the period in question and is not authorised to pay only a fraction thereof.
51 Consequently, the position expressed by the SRB, in the letter of 13 August 2021, according to which it may return the cash collateral backing the 2016-2021 IPCs only after the payment of a sum of an amount corresponding to that of the contribution for which those instruments were used, is not contrary to either Article 7(3) of Implementing Regulation 2015/81 or Clause 12.5 of the 2016-2021 IPCs, which refers to that provision.
52 The various arguments put forward by the applicant and the interveners in favour of a different interpretation are no more convincing.
53 First, as regards the arguments that the SRB misinterpreted Article 70(4) of Regulation No 806/2014 in that it confused the cash contributions with the cash collateral backing the 2016-2021 IPCs, it should be noted that, while it is true that the SRB referred to Article 70(4) of Regulation No 806/2014 in the letter of 13 August 2021, it is not apparent from that letter that it applied that provision to the cash collateral backing the 2016-2021 IPCs. In that letter, the SRB merely required the applicant to pay a cash sum of an amount equivalent to that of the 2016-2021 IPCs, in accordance with its obligation to pay all the contributions due in respect of the period in which it fell within the scope of Regulation No 806/2014 (see paragraphs 28 to 31 above). Therefore, the SRB did not make the error of interpretation alleged against it.
54 Second, as regards the arguments relating to the non-applicability of Article 7(2) of Implementing Regulation 2015/81 to the applicant’s situation, it is sufficient to note, in the light of the letter of 13 August 2021, that the SRB did not apply that provision. Accordingly, those arguments are ineffective.
55 Third, as regards the arguments based on the principle of equal treatment, according to which there is a difference in legal situation between the institutions which chose to pay their contributions immediately in cash and those which preferred to enter into irrevocable payment commitments, it must be stated that the fact that the Court noted in the judgment of 20 January 2021, ABLV Bank v SRB (T‑758/18, EU:T:2021:28, paragraph 111), that the EU legislature had considered it necessary to subject irrevocable payment commitments to a ‘specific regime’, does not, in itself, make it possible to distinguish institutions which chose to pay their contributions immediately from those which have entered into irrevocable payment commitments. In the present case, the applicant fell, each 1 January of the years 2016 to 2021, within the scope of Regulation No 806/2014 and was subject to the obligation to contribute to the SRF. The fact that the applicant did not immediately pay its contribution in full for the years in question did not in any way alter its situation with regard to its payment obligations under Regulation No 806/2014. Thus, contrary to what it claims, the applicant was in a situation comparable to that of all credit institutions which fell, on 1 January of each of those years, within the scope of Regulation No 806/2014. Its argument to the contrary cannot succeed. Accordingly, like those credit institutions, it is required to pay all the individual contributions due in respect of the 2016-2021 contribution period.
56 Furthermore, as regards the alleged difference in legal situation between institutions which remain within the scope of Regulation No 806/2014 and those which do not, it must be pointed out that the payment of a contribution by a credit institution does not give it any right to benefit from the SRF. In accordance with Article 18(1) of Regulation No 806/2014, a resolution is to be carried out solely in the public interest. The SRF therefore serves to safeguard the financial stability of the Banking Union as such. It is not intended to be a rescue fund for individual banks (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 70 to 72; see also Opinion of Advocate General Kokott in ABLV Bank v SRB, C‑202/21 P, EU:C:2022:327, point 64).
57 Accordingly, there is no automatic link between the payment of the ex ante contribution and the possibility of benefiting from the SRF.
58 In those circumstances, contrary to what the applicant claims, the fact that, as a result of its departure from the scope of Regulation No 806/2014, it can no longer benefit from the SRF does not show that it is in a situation such that it should be released from the obligation to pay a sum corresponding to the full amount of the contributions due in respect of the 2016-2021 contribution period, a period during which it was still covered by that regulation. Its argument in that respect must therefore be rejected.
59 Moreover, as Advocate General Kokott observed in her Opinion in ABLV Bank v SRB (C‑202/21 P, EU:C:2022:327, points 65 and 66), although, when calculating the individual contribution of each institution, its risk profile is taken into account, it is apparent from Article 70(2) of Regulation No 806/2014 that the amount of the contribution depends above all on the amount of the target level, since it corresponds essentially to a certain fraction of the amount of the target level.
60 This means, as stated in recital 11 of Implementing Regulation 2015/81, that the individual contribution of a credit institution always depends decisively on the individual contributions of the other credit institutions liable for the contribution during the relevant period. The adjustment of a credit institution’s contribution would therefore always require a correction of the contributions of other credit institutions. It follows that, as has already been stated in paragraph 48 above, if the contributions were adjusted continuously over a contribution period, it would be impossible to determine with legal certainty the individual contributions of all the other institutions. That is why a change of status during the contribution period has no effect on the contribution to be paid (Opinion of Advocate General Kokott in ABLV Bank v SRB, C‑202/21 P, EU:C:2022:327, point 67).
61 The annual ex ante contribution to the SRF therefore does not quantify the risk that a contributing institution poses during the contribution period to financial stability or the use of the SRF (Opinion of Advocate General Kokott in ABLV Bank v SRB, C‑202/21 P, EU:C:2022:327, point 68). In other words, the ex ante contribution does not quantify the possibility of intervention by the SRF for the benefit of the contributing institution.
62 Thus, the impossibility, for the applicant, of benefiting from the SRF, after its departure from the scope of Regulation No 806/2014, cannot, in any event, have any effect on its obligation to pay the individual contribution due in full in respect of the 2016-2021 contribution period.
63 Fourth, as regards the arguments relating to the non-applicability of the guidelines of the European Banking Authority (EBA), relied on by the SRB in its written pleadings before the Court, to the applicant’s situation, it is sufficient to note, in the light of the letter of 13 August 2021, that the SRB did not apply those guidelines to the applicant’s situation. Consequently, those arguments are ineffective.
64 In the light of the foregoing, the head of claim based on Article 272 TFEU and the first paragraph of Article 340 TFEU must be rejected.
The heads of claim based on the second paragraph of Article 340 TFEU
65 In support of the heads of claim based on the second paragraph of Article 340 TFEU, concerning the 2015 IPC and the 2016-2021 IPCs respectively, the applicant relies on the unjust enrichment of the SRB.
66 In particular, the applicant submits that the retention by the SRB of the sums corresponding to the cash collateral linked to the 2015 IPC and the 2016-2021 IPCs has no legal basis, whether contractual or regulatory. On the contrary, the SRB’s refusal to return the collateral is contrary to Article 7(3) of Implementing Regulation 2015/81. The result would be an enrichment of the SRB without a legal basis and a corresponding impoverishment of the applicant linked to that enrichment.
67 The SRB considers that the Court has no jurisdiction to hear and determine non-contractual claims for unjust enrichment concerning the 2015 IPC and the 2016-2021 IPCs. According to the SRB, as regards the 2015 IPC, the mere reference to the second paragraph of Article 340 TFEU cannot have the effect of altering the contractual nature of the dispute and thus of removing it from the competence of the national court having jurisdiction in the present case. As regards the 2016-2021 IPCs, the SRB submits that it is apparent from those commitments that Luxembourg law must govern all tortious claims and infers from them that it is not possible to invoke non-contractual liability based on EU law. In any event, those claims are unfounded.
68 In that regard, it should be recalled that the Court has jurisdiction, under Article 268 TFEU, to hear and determine disputes relating to compensation for damage provided for in the second paragraph of Article 340 TFEU, which provides that ‘in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’.
69 The same applies to claims seeking to establish the liability of the European Union for unjust enrichment (see, to that effect, judgment of 1 December 2021, KY v Court of Justice of the European Union, T‑433/20, not published, EU:T:2021:840, paragraph 35).
70 No contract can alter that.
71 Accordingly, the pleas of lack of jurisdiction raised by the SRB must be rejected.
72 A claim of unjust enrichment, in order to succeed, requires proof of an enrichment for which there is no legal basis and of impoverishment on the part of the applicant which is linked to that enrichment (see, to that effect, judgment of 28 July 2011, Agrana Zucker, C‑309/10, EU:C:2011:531, paragraph 53).
73 That first condition is not satisfied, inter alia, where the enrichment derives from contractual obligations (see judgment of 6 October 2015, Technion and Technion Research & Development Foundation v Commission, T‑216/12, EU:T:2015:746, paragraph 104 and the case-law cited).
74 In the present case, as regards the 2015 IPC, it is common ground that that commitment defines the contractual relationship between the applicant, on the one hand, and the SRB, the ACPR and the FGDR, on the other. According to the applicant, the enrichment of the SRB arises from the retention of the sum corresponding to the cash collateral linked to the 2015 IPC. However, it does not put forward any evidence establishing the absence of a contractual basis for the alleged enrichment of the SRB. Moreover, it stated at the hearing that it had not brought an action before the courts within the jurisdiction of the cour d’appel de Paris (Court of Appeal, Paris, France), which have jurisdiction to settle any contractual disputes under the arbitration clause in the 2015 IPC, and that it had not asked them to find that there was no contractual basis for that enrichment. In those circumstances, since enrichment without a valid legal basis has not been established, the applicant’s argument relating to that alleged enrichment must be rejected.
75 As regards the 2016-2021 IPCs, it should be noted that the alleged enrichment of the SRB, namely the retention of the sums corresponding to the cash collateral linked to those commitments, is based on those commitments, which bind it to the applicant.
76 As is apparent from the findings set out in paragraphs 24 to 51 above, neither the application of Article 7(3) of Implementing Regulation 2015/81 nor that of Clause 12.5 of the 2016-2021 IPCs could result in the return of the sums corresponding to the cash collateral linked to the 2016-2021 IPCs without the prior payment of the compulsory contribution for which the applicant was liable, in accordance with Article 70(1) of Regulation No 806/2014.
77 Therefore, it must be held that the SRB’s decision to retain the sums corresponding to the cash collateral linked to the 2016-2021 IPCs until the payment of the contributions for which those instruments were used is founded on a valid legal basis and cannot, therefore, constitute unjust enrichment.
78 Consequently, the heads of claim based on the second paragraph of Article 340 TFEU must be rejected.
79 In the light of all the foregoing, the action must be dismissed in its entirety.
Costs
80 Under Article 134(1) of the Rules of Procedure of the General Court, 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 has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the SRB, in accordance with the form of order sought by the latter.
81 In accordance with Article 138(1) of the Rules of Procedure, the French Republic must be ordered to bear its own costs.
82 Furthermore, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, FBF must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders BNP Paribas Public Sector SA to bear its own costs and to pay the costs of the Single Resolution Board (SRB);
3. Orders the French Republic and the Fédération bancaire française (FBF) to bear their own costs.
Kowalik-Bańczyk | Hesse | Ricziová |
Delivered in open court in Luxembourg on 25 October 2023.
[Signatures]