Case T‑383/21
La Banque postale
v
Single Resolution Board
Judgment of the General Court (Eighth Chamber, Extended Composition) of 20 December 2023
(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 calculation of the 2021 ex ante contributions – Obligation to state reasons – Principle of good administration – Principle of effective judicial protection – Plea of illegality – Limitation of the temporal effects of the judgment)
1. Economic and monetary policy – Economic policy – Single resolution mechanism for credit institutions and certain investment firms – Ex ante contributions to the Single Resolution Fund – Purpose – Insurance-based logic – Ensuring the provision of adequate financial resources by the financial sector – Encouraging the adoption of less risky methods of operation by institutions
(European Parliament and Council Regulation No 806/2014, recital 41; European Parliament and Council Directive 2014/59, recitals 105 to 107)
(see paragraph 42)
2. Fundamental rights – Charter of Fundamental Rights – Equal treatment – EU rules in a particular policy area – Economic operators affected in different ways in the light of their individual situation or of national rules – Principle of non-discrimination – Infringement – None
(Charter of Fundamental Rights of the European Union, Art. 21)
(see paragraph 60)
3. EU institutions – Exercise of powers – Power conferred on the Commission to adopt delegated acts – Scope – Complex assessments and evaluations – Broad discretion – Directive 2014/59 establishing a framework for the recovery and resolution of credit institutions and investment firms – Establishment of the criteria for adjusting ex ante contributions – Judicial review – Limits
(Art. 290 TFEU; European Parliament and Council Directive 2014/59, Art. 103(7); Commission Regulation 2015/63, Arts 6 and 7 and Annex I)
(see paragraphs 151-153, 155)
4. EU law – Principles – Legal certainty – EU rules – Requirements of clarity and precision – Limits
(see paragraphs 189-192)
5. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision of the Single Resolution Board (SRB) establishing the ex ante contributions to the Single Resolution Fund (SRF) – Not necessary to include, in that decision, all figures necessary for verifying the accuracy of the calculation of the contribution – Weighing the obligation to state reasons against the general principle of protection of the business secrets of the institutions concerned – Legality of the provisions of Delegated Regulation 2015/63 concerning the methodology for the calculation of the ex ante contributions to the SRF
(Art. 296, second para., TFEU; European Parliament and Council Regulation No 806/2014; European Parliament and Council Directive 2014/59; Commission Regulation 2015/63)
(see paragraphs 195-198, 214, 216, 217)
6. EU law – Principles – Rights of the defence – Right to effective judicial protection – Scope – Decision of the Single Resolution Board (SRB) establishing the ex ante contributions to the Single Resolution Fund (SRF) – Audi alteram partem rule – Exceptions – General principle of protection of business secrets – Striking a balance – Whether permissible
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Regulation No 806/2014; European Parliament and Council Directive 2014/59; Commission Regulation 2015/63, Arts 4 to 7 and 9 and Annex I)
(see paragraphs 246-251, 254-258)
7. Acts of the institutions – Statement of reasons – Obligation – Scope – Explanations regarding the reasons for the measure provided by the author during the proceedings before the EU judicature – Conditions – There must be no contradictions and the explanations must be consistent with those reasons
(Art. 296, second para., TFEU)
(see paragraphs 293-296)
Résumé
La Banque postale (‘the applicant’) is a credit institution established in France.
On 14 April 2021, the Single Resolution Board (SRB) adopted a decision in which it set (1) the 2021 ex ante contributions to the Single Resolution Fund (‘the SRF’) of credit institutions and certain investment firms, one of which was the applicant (‘the contested decision’). (2)
Hearing an action for annulment, which it upholds, against the contested decision, the General Court, after rejecting several pleas of illegality raised against Regulation No 806/2014, Delegated Regulation 2015/63 (3) and Implementing Regulation 2015/81, (4) provides significant clarification regarding, first, the scope of the SRB’s obligation to state reasons and, second, the link between that obligation and compliance with the principles of good administration and of effective judicial protection.
Findings of the Court
In the first place, with regard to the plea alleging failure to fulfil the obligation to state reasons, the applicant alleged a failure to state reasons for the contested decision as regards the setting of the annual target level.
The Court recalls, first of all, that, in accordance with the applicable legislation, by the end of the initial period of eight years from 1 January 2016 (‘the initial period’), the available financial means of the SRF must reach the final target level, which corresponds to at least 1% of the amount of covered deposits of all of the institutions authorised in the territories of all of the Member States participating in the SRM. Next, during the initial period, ex ante contributions must be spread out in time as evenly as possible until the final target level is reached. Furthermore, each year, the contributions due by all of the institutions authorised in the territories of all of the Member States participating in the SRM are not to exceed 12.5% of the final target level. In addition, as regards the methodology for calculating the ex ante contributions, the SRB is to determine the amount of those contributions on the basis of the annual target level by taking into account the final target level, and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, of all the institutions authorised in the territories of the Member States participating in the SRM. Lastly, the SRB is to calculate the ex ante contribution for each institution on the basis of the annual target level, which must be established with reference to the final target level, and in accordance with the methodology set out in Delegated Regulation 2015/63.
In the present case, as is apparent from the contested decision, the SRB set the amount of the annual target level, for the 2021 contribution period, at EUR 11 287 677 212.56. In that decision, it explained, in essence, that the annual target level was to be determined on the basis of an analysis of the evolution of covered deposits in the previous years, any relevant developments in the economic situation and an analysis of the indicators relating to the phase of the business cycle and the effects that pro-cyclical contributions may have on the financial position of the institutions. The SRB considered it appropriate to set a coefficient based on that analysis and on the financial means available in the SRF (‘the coefficient’) and applied that coefficient to one eighth of the average amount of covered deposits in 2020, in order to obtain the annual target level. It subsequently set out the approach taken in order to determine the coefficient. In the light of those considerations, the SRB set the coefficient value at 1.35%. It then calculated the amount of the annual target level by multiplying the average amount of covered deposits in 2020 by that coefficient, and by dividing the result of that calculation by eight.
In that regard, although the SRB is required to provide the institutions, by means of the contested decision, with explanations concerning the methodology for determining the annual target level, such explanations must be consistent with the explanations provided by the SRB during the judicial proceedings and relating to the methodology actually applied. However, that is not the case in this instance.
At the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period using a methodology based on four stages, the last two of which consisted in deducting from the final target level the financial means available within the SRF, in order to calculate the amount that remained to be received until the end of the initial period, and by dividing that amount by three.
The Court observes that no reference is made to the last two stages of that calculation in the mathematical formula which is presented in the contested decision as the basis for determining the amount of the annual target level.
Furthermore, that finding cannot be called into question by the SRB’s assertion that, in May 2021, it published the Fact Sheet, which contained a range indicating the potential amounts of the final target level, and, on its website, the amount of the financial means available in the SRF. Irrespective of whether the applicant was actually aware of those amounts, they were not, in themselves, such as to enable it to understand that the last two stages of the calculation had actually been applied by the SRB, and it should be noted, moreover, that the mathematical formula did not even mention them.
Similar inconsistencies also affect the manner in which the coefficient of 1.35% was set, which nonetheless plays a crucial role in that mathematical formula. It follows from the explanations provided by the SRB at the hearing that that coefficient was set in such a manner as to justify the result of the calculation of the amount of the annual target level, that is to say, after the SRB calculated that amount in accordance with the four stages of the methodology actually applied. That approach is not in any way apparent from the contested decision.
Moreover, the range within which, according to the Fact Sheet, the amount of the estimated final target level was set is inconsistent with the range of the growth rate of covered deposits, which is between 4% and 7% as set out in the contested decision. The SRB stated at the hearing that, for the purpose of determining the annual target level, it had taken into account the 4% growth rate of covered deposits – which was the lowest rate in the second range – and that it had thus obtained the estimated final target level of EUR 75 billion – which was the highest value in the first range. It is therefore apparent that there is a discrepancy between those two ranges. In those circumstances, the applicant was not in a position to ascertain the manner in which the SRB had used the range relating to the rate of growth of those deposits in order to arrive at the calculation of the estimated final target level.
The Court considers that, as regards the determination of the annual target level, the methodology actually applied by the SRB, as explained at the hearing, does not correspond to the one described in the contested decision, with the result that the actual reasons, in the light of which that target level was set, could not be identified on the basis of the contested decision either by the institutions or by the Court. The contested decision is therefore vitiated by defective reasoning as regards the determination of the annual target level.
In the second place, as regards the pleas alleging that the SRB infringed the principle of good administration and of the principle of effective judicial protection, the applicant’s arguments concerned more specifically the lack of data, in the contested decision, relating to the setting of the ‘covered deposit adjustment rate’ used to determine the annual target level, namely the coefficient.
In that regard, the Court recalls that the SRB failed to fulfil the obligation to state reasons as regards the setting of the annual target level.
It follows from Article 41(2)(c) of the Charter of Fundamental Rights of the European Union and from the case-law that the statement of the reasons for the decision of an EU body is a requirement for ensuring that the principles of good administration and of effective judicial protection are effective.
The Court infers therefrom that the defective statement of reasons for the contested decision, with regard to the determination of the annual target level, also constitutes an infringement of the principle of good administration and of the principle of effective judicial protection. It therefore upholds the pleas raised.
In view of the heads of illegality which vitiate the contested decision, the Court annuls the contested decision in so far as it concerns the applicant.
Nonetheless, in the circumstances of the present case, it has decided to maintain the effects of that decision, in so far as it concerns the applicant, until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of the present judgment, of a new decision of the SRB determining the applicant’s ex ante contribution to the SRF for the 2021 contribution period.