Provisional text
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
24 January 2024 (*)
(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 – Equal treatment – Principle of proportionality – SRB’s margin of discretion – Plea of illegality – Legal basis of Regulation (EU) No 806/2014 – Commission’s margin of discretion)
In Case T‑405/21,
Dexia Crédit Local, established in Paris (France), represented by H. Gilliams and J.-M. Gollier, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by J. Kerlin and C. De Falco, acting as Agents, and by H.-G. Kamann, F. Louis, P. Gey and V. Del Pozo Espinosa de los Monteros, lawyers,
defendant,
supported by
European Parliament, represented by J. Etienne and O. Denkov, acting as Agents,
by
Council of the European Union, represented by E. d’Ursel and A. Westerhof Löfflerová, acting as Agents,
and by
European Commission, represented by D. Triantafyllou and A. Steiblytė, acting as Agents,
interveners,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of A. Kornezov, President, G. De Baere, D. Petrlík (Rapporteur), K. Kecsmár and S. Kingston, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 1 March 2023,
gives the following
Judgment (1)
1 By its action based on Article 263 TFEU, the applicant, Dexia Crédit Local, seeks annulment of Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund (‘the contested decision’), in so far as it relates to the applicant.
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III. Forms of order sought
22 The applicant claims, in essence, that the Court should:
– annul the contested decision in so far as it relates to the applicant;
– order the SRB to bear the costs.
23 The SRB contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs;
– in the alternative, in the event that the contested decision is annulled, maintain its effects until it is replaced or for a period of at least six months from the date on which the judgment becomes final.
24 The European Parliament contends that the Court should:
– dismiss the action in so far as it is based on the plea of illegality raised in the fifth and sixth pleas in law in respect of Regulation No 806/2014;
– order the applicant to pay the costs.
25 The Council of the European Union contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
26 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
IV. Law
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A. The pleas of illegality raised in respect of Regulation No 806/2014 and Delegated Regulation 2015/63
1. The fifth and sixth pleas, alleging that the provisions of Regulation No 806/2014 are unlawful in the light of the Treaties
29 In the first place, the applicant submits that Articles 5, 69 and 70 of Regulation No 806/2014, on the basis of which the annual target level and its ex ante contribution were determined by the SRB, are unlawful. Those provisions were adopted on the basis of Article 114 TFEU, whereas they replace an independent European agency, the SRB, established by that regulation, with NRAs responsible for determining the annual target level and ex ante contributions.
30 In the second place, according to the applicant, the provisions the lawfulness of which is disputed under the sixth plea, namely Articles 69 and 70 of Regulation No 806/2014, as the applicant stated in its reply to the written questions put to it by the Court, constitute ‘fiscal provisions’ within the meaning of Article 114(2) TFEU, with the result that they could not be adopted on the basis of paragraph 1 of that article. In so far as they establish the obligation to pay ex ante contributions, those contributions are of a fiscal nature, since they do not constitute actual and proportional remuneration for a specific service. The applicant cannot expect any consideration in exchange for their payment, having regard to the fact, confirmed by the Commission and the SRB, that its situation is governed by the provisions in force at the time it is placed in resolution, before the entry into force of Directive 2014/59, and that no resolution tool could be used in respect of it in the event of failure.
31 Similarly, the ex ante contributions pursue only public interest objectives, as the General Court held in the judgment of 20 January 2021, ABLV Bank v SRB (T‑758/18, EU:T:2021:28, paragraphs 70 and 71). The public interest objective of ensuring the financial stability of the banking system benefits not only institutions subject to the obligation to pay ex ante contributions, but all EU economic actors.
32 The applicant argues that it follows that only Article 352 TFEU could have constituted a legal basis for the adoption of Articles 5, 69 and 70 of Regulation No 806/2014.
33 The SRB, the Parliament, the Council and the Commission dispute that line of argument.
34 As a preliminary point, the Court recalls that the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review, which include the aim and the content of that measure (see Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 76 and the case-law cited, and judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C‑244/17, EU:C:2018:662, paragraph 36).
35 Legislative acts adopted on the basis of Article 114(1) TFEU must, first, comprise measures for the approximation of the provisions laid down by law, regulation or administrative action in the Member States and, second, have as their object the establishment and functioning of the internal market (judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 100).
36 First, in order to examine whether Articles 5, 69 and 70 of Regulation No 806/2014 could be adopted on the basis of Article 114(1) TFEU, it is necessary to examine whether those provisions satisfy the two conditions referred to in paragraph 35 above.
37 In the first place, the Court notes that Article 114 TFEU may be used as a legal basis only where it is actually and objectively apparent from the legal act that its purpose is to improve the conditions for the establishment and functioning of the internal market (see judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 113 and the case-law cited).
38 In the present case, it follows, in particular, from recitals 1 and 3 of Regulation No 806/2014 and from recital 1 of Directive 2014/59 that that regulation was adopted in the context of an economic and financial crisis, which revealed, as regards the European Union, a lack of instruments to deal effectively with the risk posed by institutions in financial difficulties, which obliged Member States to use public financial means to support such institutions.
39 It also follows from recital 1 of Regulation No 806/2014 that that crisis showed that the functioning of the internal market in the area of banking services is under threat and that there is an increasing risk of financial fragmentation. That was a real source of concern in an internal market in which banks should be able to carry out significant cross-border activities, whereas a decrease in those activities was noted due to a fear of contagion.
40 Furthermore, the EU legislature stated, in recitals 2 to 4 and 12 of Regulation No 806/2014, that divergences between national resolution rules and corresponding administrative practices and the lack of a unified decision-making process for resolution in the banking union contributed to a lack of confidence of national banking systems towards those of other Member States, including Member States not participating in the SRM, and contributed to market instability, as they did not ensure predictability as to the possible outcome of a bank failure. Those divergences might also have led certain banks and customers to have higher borrowing costs only because of their place of establishment and irrespective of their real creditworthiness.
41 Lastly, the EU legislature highlighted, in recitals 9 and 19 of Regulation No 806/2014, the fact that, as long as resolution rules, practices and approaches to burden-sharing remain national and the financial resources needed for funding resolution are raised and spent at national level, the link between Member States and the banking sector would not be fully broken and the internal market will remain fragmented. That restricts the cross-border activities of banks and thus creates obstacles to the exercise of fundamental freedoms and distorts competition in the internal market.
42 It is in the light of those considerations that Regulation No 806/2014 seeks to limit the link between the perceived fiscal position of individual Member States and the funding costs of banks and undertakings operating in those Member States, as well as to place the responsibility of financing the stabilisation of the financial system on the financial industry as a whole.
43 Thus, as stated in Article 1 thereof, Regulation No 806/2014 establishes, inter alia, uniform rules and a uniform procedure for the resolution of institutions, which should be applied by the SRB, in order to address the threats referred to in paragraphs 38 to 41 above.
44 An essential element of those rules and that procedure is the SRF, which, as is apparent from Articles 67 and 76 of Regulation No 806/2014 and recital 107 of that regulation, makes it possible to ensure the efficient exercise of resolution powers and to contribute to the financing of the resolution tools while ensuring their efficient application.
45 In order to ensure sufficient financial means in the SRF, the SRF is financed, in the light of the considerations set out in paragraphs 38 to 41 above, inter alia, by the ex ante contributions paid by the institutions, the amount of which depends on the final target level and the main calculation methods laid down in Articles 69 and 70 of Regulation No 806/2014.
46 Consequently, the payment of those contributions, as determined in accordance with Articles 69 and 70 of Regulation No 806/2014, ensures the efficient application of the uniform rules and the uniform procedure for the resolution of institutions. The rules determining those contributions in turn make it possible, as is apparent from recitals 12 and 19 of that regulation, to avoid the creation of obstacles for the exercise of fundamental freedoms or the distortion of competition in the internal market due to divergent national practices.
47 Furthermore, the EU legislature emphasised, in recitals 11, 31 and 39 of Regulation No 806/2014, that the uniform application of the resolution regime in the participating Member States would be enhanced as a result of the tasks entrusted to the SRB, which was specifically designed to ensure a swift and effective decision-making process in resolution and should also ensure that appropriate account is taken of national financial stability, the financial stability of the Union and the internal market. In that context, Article 5 of that regulation provides that the SRB is to be regarded as an NRA, within the meaning of Directive 2014/59, where it performs tasks and exercises powers conferred on such an NRA. That provision thus allows the SRB to act fully as a decision-making body in the field of resolution in the banking union and, therefore, having regard also to the considerations set out in paragraphs 38 to 41 above, has the object of improving the functioning of the internal market.
48 In the light of the foregoing, the Court finds that the objective of Regulation No 806/2014, in particular Articles 5, 69 and 70 thereof, is to improve the conditions for the establishment and functioning of the internal market.
49 In the second place, the Court notes that, by the expression ‘measures for the approximation’ in Article 114 TFEU, the authors of the FEU Treaty intended to confer on the Union legislature, depending on the general context and the specific circumstances of the matter to be harmonised, discretion as regards the most appropriate method of harmonisation for achieving the desired result, especially in fields with complex technical features (see judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 102 and the case-law cited).
50 Accordingly, the EU legislature, in its choice of method of harmonisation and, taking account of the discretion it enjoys with regard to the measures provided for under Article 114 TFEU, may delegate to a Union body, office or agency powers for the implementation of the harmonisation sought. That is the case in particular where the measures to be adopted are dependent on specific professional and technical expertise and the ability of such a body to respond swiftly and appropriately (see judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 105).
51 In that context, first, the Court notes that, as is apparent from paragraphs 38 to 42 above, the measures to be taken in the field of resolution must be based on specific professional and technical expertise. Second, as follows from the considerations set out in paragraph 47 above, the SRB was established in order to ensure and enhance the application of the uniform rules and the uniform procedure for the resolution of institutions. In those circumstances, the EU legislature was able to provide, in Article 5 of Regulation No 806/2014, that the SRB had to be regarded as an NRA, within the meaning of Directive 2014/59, where it performed tasks and exercised powers conferred on such an NRA and could confer on it the powers to determine, pursuant to Articles 69 and 70 of that regulation, the amount of the ex ante contributions and to manage the financial means of the SRF in accordance with Article 67(2) and (3) of that regulation.
52 Furthermore, as is apparent from paragraphs 45 and 46 above, Articles 69 and 70 of Regulation No 806/2014 constitute an essential element of the rules and procedure for the resolution of institutions, which helps to prevent divergent national practices from creating obstacles for the exercise of fundamental freedoms or the distortion of competition in the internal market.
53 Similarly, as is apparent from paragraph 47 above, Article 5 of Regulation No 806/2014 contains a measure for the approximation of resolution laws, which reinforces the uniform application of the rules and the procedure for the resolution of institutions.
54 In those circumstances, Articles 5, 69 and 70 of Regulation No 806/2014 may be regarded as provisions for the approximation of the provisions of the Member States concerning the resolution of institutions in the banking union.
55 That conclusion is not called into question by the applicant’s argument that the creation of the SRB by Regulation No 806/2014 does not satisfy the requirements set out in the judgment of 2 May 2006, United Kingdom v Parliament and Council (C‑217/04, EU:C:2006:279, paragraphs 44 and 45).
56 In the judgment of 2 May 2006, United Kingdom v Parliament and Council (C‑217/04, EU:C:2006:279), the Court of Justice noted that the tasks entrusted to a body responsible for contributing to the achievement of a harmonisation process must be closely linked to the subject matter of the acts approximating the laws, regulations and administrative provisions of the Member States, such being the case ‘in particular’ where the body thus established provided services to national authorities or operators which affected the homogeneous implementation of harmonising instruments and which were likely to facilitate their application (judgment of 2 May 2006, United Kingdom v Parliament and Council, C‑217/04, EU:C:2006:279, paragraph 45).
57 In providing that clarification, the Court of Justice drew attention to the characteristics of the case before it which, in the circumstances of that case, enabled it to take the view that the tasks of the body in question in that case were closely linked to the subject matter of the act approximating the laws, regulations and administrative provisions of the Member States at issue in that case.
58 Such a close link between the tasks entrusted to the SRB and the subject matter of Regulation No 806/2014 also exists in the present case. The tasks entrusted to the SRB by that regulation, as described in paragraph 51 above, are part of the creation of the banking union, which required a comprehensive and detailed single rulebook for financial services, as stated by the EU legislature in recital 5 of that regulation. In that context, as is apparent from recital 35 of that regulation, the SRB plays an important role in ensuring consistency between supervisory and resolution practices throughout the European Union. In addition, in accordance with Article 31(1) and Article 70(2) of that regulation, in the exercise of its tasks, the SRB is to collaborate closely with the NRAs, including when calculating ex ante contributions. The tasks conferred on the SRB by Regulation No 806/2014 therefore have an impact on the homogeneous implementation of the harmonising instruments and are likely to facilitate their application.
59 In those circumstances, the applicant cannot claim that the tasks entrusted to the SRB are not closely related to the subject matter of the acts approximating the laws, regulations and administrative provisions of the Member States in the matter at issue.
60 It follows from all the foregoing considerations that Articles 5, 69 and 70 of Regulation No 806/2014 satisfy the conditions laid down in Article 114(1) TFEU.
61 Second, the applicant submits that Articles 69 and 70 of Regulation No 806/2014, in so far as they provide for the obligation to pay ex ante contributions, are of a fiscal nature within the meaning of Article 114(2) TFEU and cannot therefore be adopted on the basis of Article 114(1) TFEU.
62 Article 114(2) TFEU provides that paragraph 1 of that provision does not apply, inter alia, to ‘fiscal provisions’.
63 As regards the interpretation of the expression ‘fiscal provisions’, it should be noted that the FEU Treaty does not contain a definition of that term (see, to that effect, judgment of 29 April 2004, Commission v Council, C‑338/01, EU:C:2004:253, paragraph 63).
64 That said, it is clear from the case-law of the Court of Justice that a levy paid by economic operators in a particular sector is not fiscal in nature in a situation where, in particular, it is directly allocated solely to the financing of expenditure in that sector and where that expenditure is necessary for the functioning of that sector in order, in particular, to stabilise it (see, to that effect and by analogy, judgment of 11 July 1989, Schräder HS Kraftfutter, 265/87, EU:C:1989:303, paragraphs 9 and 10).
65 That reasoning also applies in the case of ex ante contributions, which follow an insurance-based logic and which are paid by economic operators in a particular sector in order to finance exclusively expenditure of that sector.
66 Thus, as regards the nature of the ex ante contributions, it has already been noted in paragraph 38 above that Regulation No 806/2014 had been adopted in the context of an economic and financial crisis which had revealed, as regards the European Union, a lack of instruments to deal effectively with the risk posed by institutions in financial difficulties, which obliged the Member States to use public financial means to support such institutions. The SRM seeks to avoid the harmful consequences of failures of institutions that have occurred during such crises, since the failure of institutions in a single Member State may jeopardise the stability of the financial markets as a whole, as is apparent from recitals 8 and 12 of that regulation.
67 In that context, the EU legislature considered that it was for the financial sector as a whole to finance the stabilisation of the financial system, as is apparent, in particular, from recital 100 of Regulation No 806/2014.
68 From that perspective, the specific nature of the ex ante contributions consists, as is confirmed by recitals 105 to 107 of Directive 2014/59 and recital 41 of Regulation No 806/2014, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions (judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113).
69 Consequently, in accordance with Article 67(2) and (4) and recital 61 of Regulation No 806/2014, ex ante contributions are collected from economic operators in the financial sector in order to fill the SRF, which may be used only for the purpose of efficient application of resolution tools and the efficient exercise of resolution powers where such measures are necessary to pursue the objective of the financial stability of that sector.
70 In that regard, the Court notes that, as follows from Article 1 of Regulation No 806/2014, the measures referred to in paragraph 69 above are applied only for the benefit of the institutions which are required to pay the ex ante contributions.
71 It is true that Regulation No 806/2014 does not establish any automatic link between the payment of the ex ante contribution and the resolution of the institution concerned. That is why the ex ante contributions cannot be regarded as insurance premiums which could be paid monthly and reimbursed (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 70 and 73).
72 The fact remains that the institutions benefit in two respects from the SRF, which is financed specifically by their ex ante contributions.
73 First, where institutions are failing or are likely to fail, their financial situation may be remedied in the context of a resolution procedure which may be initiated in respect of them if the other conditions laid down in Article 18 of Regulation No 806/2014 are also satisfied. Such a procedure thus enables the financial means of the SRF to be used for the benefit of such institutions, it being understood that those means have been provided by the contributions of those institutions.
74 Second, all institutions benefit from their ex ante contributions through the stability of the financial system, which is ensured by the SRF.
75 The risk covered by the SRF is the risk which the financial sector as a whole poses to the stability of the financial system (judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 72).
76 It follows that it is from an insurance-based rather than a tax-based perspective that the SRF seeks to ensure the stability of the financial sector as a whole, with the objective of ensuring protection against its own crises for the benefit of all institutions.
77 That insurance-based purpose is also reflected in the calculation of the ex ante contributions, given that they are not the result of applying a certain rate to a basis of assessment but rather, in accordance with Articles 102 and 103 of Directive 2014/59 as well as Articles 69 and 70 of Regulation No 806/2014, they are the result of the setting of a final target level, and thereafter of an annual target level, which is then divided between the institutions (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113). That dividing of the annual target level is based, inter alia, as is also apparent from recital 109 of Regulation No 806/2014, on the risk that each institution poses to the stability of the financial system, which encourages institutions to operate under a model of functioning which presents less risk.
78 It follows from the foregoing that the institutions pay the ex ante contributions on an insurance-based logic, it being understood that those contributions are directly set aside solely for financing the expenditure of the financial sector to which those institutions belong and that that expenditure is necessary for the functioning of that sector in order, inter alia, to stabilise it in the event of the failure of certain institutions and to limit contagion effects.
79 Consequently, the provisions of Regulation No 806/2014 which require institutions to pay ex ante contributions and specify the methods for their calculation, in particular Articles 69 and 70 thereof, do not constitute ‘fiscal provisions’ within the meaning of Article 114(2) TFEU.
80 That conclusion is not called into question by the applicant’s line of argument.
81 First, for the reasons set out in paragraphs 72 to 74 above, it is necessary to reject the applicant’s argument that it would receive no consideration after paying the ex ante contributions.
82 Second, the applicant’s argument that financial stability is an objective of public interest which does not benefit only persons subject to the obligation to pay ex ante contributions cannot succeed either. Such a fact has no effect on the insurance-based logic of ex ante contributions, it being understood that those contributions paid by the institutions are directly set aside solely for financing expenditure in the financial sector to which those institutions belong and that that expenditure is necessary for the functioning of that sector.
83 Third, the applicant submits that Regulation No 806/2014 should have been adopted on the basis of Article 352 TFEU, which is a provision equivalent to Article 127(6) TFEU, which was the legal basis for Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).
84 Article 352 TFEU is designed to fill the gap where no specific provisions of the Treaties confer on the EU institutions express or implied powers to act, if such powers appear nonetheless to be necessary to enable the Union to carry out its functions with a view to attaining one of the objectives laid down by those treaties (Opinion 2/94 (Accession of the Community to the ECHR) of 28 March 1996, EU:C:1996:140, paragraph 29; see also judgment of 3 September 2009, Parliament v Council, C‑166/07, EU:C:2009:499, paragraph 41 and the case-law cited).
85 It follows that, where a specific legal basis exists for the adoption of an EU measure, recourse to Article 352 TFEU is precluded.
86 First, it follows from paragraphs 38 to 54 above that the provisions the lawfulness of which is disputed, namely Articles 5, 69 and 70 of Regulation No 806/2014, fulfil the conditions laid down in Article 114(1) TFEU, in that they each contain a measure for the approximation of laws and regulations concerning resolution and in that their subject matter is the improvement of the functioning of the internal market. Second, it is apparent from paragraphs 62 to 79 above that Articles 69 and 70 of that regulation, the lawfulness of which is disputed, do not constitute ‘fiscal provisions’ within the meaning of Article 114(2) TFEU.
87 Therefore, such measures may be linked to the powers conferred on the EU institutions to legislate on the basis of Article 114 TFEU in order to improve the functioning of the internal market.
88 In those circumstances, Article 352 TFEU does not constitute an appropriate legal basis for the adoption of Articles 5, 69 and 70 of Regulation No 806/2014.
89 In the light of all of the foregoing, the fifth and sixth pleas must be rejected.
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B. The pleas relating to the lawfulness of the contested decision
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3. The first plea, alleging infringement of Article 69(2) of Regulation No 806/2014 by the contested decision
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207 In order to assess whether the SRB infringed Article 69(2) of Regulation No 806/2014 when it determined the annual target level in the contested decision, the Court must first examine of its own motion whether an adequate statement of reasons was provided in that decision as regards the determination of that level.
208 In that respect, it should be noted that an absence of or inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited). Consequently, the Court may, or even must, also take into account failures to state reasons other than those relied on by the applicant, in particular where they are revealed in the course of the proceedings.
209 To that end, the parties were heard, by way of a measure of organisation of procedure and at the hearing, on all potential failures to state reasons possibly vitiating the contested decision as regards the determination of the annual target level.
210 That said, the Court recalls that, in accordance with Article 69(1) of Regulation No 806/2014, by the end of 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 the institutions authorised in the territories of all of the participating Member States.
211 According to Article 69(2) of Regulation No 806/2014, during the initial period, ex ante contributions must be spread out in time as evenly as possible until the final target level referred to in paragraph 210 above is reached, but with due account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of institutions.
212 Article 70(2) of Regulation No 806/2014 states that, each year, the contributions due by all of the institutions authorised in the territories of all of the participating Member States are not to exceed 12.5% of the final target level.
213 As regards the method for calculating ex ante contributions, Article 4(2) of Delegated Regulation 2015/63 provides that the SRB is to determine their amount on the basis of the annual target level, 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 territory of all the participating Member States.
214 Similarly, according to Article 4 of Implementing Regulation 2015/81, the SRB is to calculate the ex ante contribution for each institution on the basis of the annual target level, which must be established by reference to the final target level and in accordance with the methodology set out in Delegated Regulation 2015/63.
215 In the present case, as is apparent from recital 48 of 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.
216 In recitals 36 and 37 of the contested decision, the SRB explained, in essence, that the annual target level had to be determined on the basis of (i) an analysis of the development of the covered deposits over previous years, (ii) any relevant developments in the economic situation, (iii) an analysis of the indicators relating to the phase of the business cycle and (iv) the effects that pro-cyclical contributions would have on the financial situation of the institutions. Subsequently, the SRB regarded it as appropriate to set a coefficient based on that analysis and on the financial means available in the SRF (‘the coefficient’). The SRB applied that coefficient to one eighth of the average amount of covered deposits in 2020, in order to obtain the annual target level.
217 The SRB set out the approach taken to set the coefficient in recitals 38 to 47 of the contested decision.
218 In recital 38 of the contested decision, the SRB noted a constant upward trend of covered deposits for all institutions in the participating Member States. In particular, the average amount of those deposits, calculated quarterly, was EUR 6.689 million million for 2020.
219 In recitals 40 and 41 of the contested decision, the SRB presented the projected development of covered deposits for the remaining three years of the initial period, namely from 2021 to 2023. It estimated that the annual rate of growth of covered deposits until the end of the initial period would be between 4% and 7%.
220 In recitals 42 to 45 of the contested decision, the SRB presented an assessment of the phase of the business cycle and of the potential pro-cyclical impact that ex ante contributions may have on the financial position of the institutions. In order to do so, it stated that it had taken account of a number of indicators, such as the Commission’s gross domestic product growth forecast and the European Central Bank (ECB) projections in that regard or the private sector’s credit flow as a percentage of gross domestic product.
221 In recital 46 of the contested decision, the SRB concluded that, while it was reasonable to expect the further growth of covered deposits in the Banking Union, the pace of that growth would be lower than in 2020. In that regard, the SRB stated, in recital 47 of the contested decision, that it had adopted a ‘conservative approach’ with regard to the growth rates of covered deposits for the coming years until 2023.
222 In the light of those considerations, the SRB set, in recital 48 of the contested decision, the value of the coefficient 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 dividing the result of that calculation by eight, in accordance with the following mathematical formula, set out in recital 48 of that decision:
‘Target0 [amount of annual target level] = Total covered deposits2020 * 0.0135 * ⅛ = EUR 11 287 677 212.56’.
223 It is apparent, in essence, from the SRB’s explanations at the hearing that it determined the annual target level for the 2021 contribution period as follows.
224 First, on the basis of a prospective analysis, the SRB set the amount of covered deposits of all the authorised institutions in the territories of all the participating Member States, estimated at the end of the initial period, at approximately EUR 7.5 million million. To reach that amount, the SRB took into account the average amount of covered deposits in 2020, namely EUR 6.689 million million, an annual growth rate of 4% for covered deposits and the number of remaining contribution periods until the end of the initial period, namely three.
225 Second, in accordance with Article 69(1) of Regulation No 806/2014, the SRB calculated 1% of that EUR 7.5 million million in order to obtain the estimated amount of the final target level to be reached on 31 December 2023, that is to say, approximately EUR 75 thousand million.
226 Third, the SRB deducted from that amount the financial resources already available in the SRF in 2021, that is to say approximately EUR 42 thousand million, in order to obtain the amount that remained to be received during the remaining contribution periods before the end of the initial period, namely from 2021 to 2023. That amount was approximately EUR 33 thousand million.
227 Fourth, the SRB divided the latter amount by three in order to spread it out evenly between those three remaining contribution periods. The annual target level for the 2021 contribution period was thus set at the amount referred to in paragraph 215 above, namely approximately EUR 11.287 thousand million.
228 The SRB also stated, at the hearing, that it had made public information on which the method described in paragraphs 224 to 227 above had been based and which enabled the applicant to understand the method by which the annual target level had been determined. In particular, it stated that it had published on its website, in May 2021, that is to say, after the adoption of the contested decision, but before the present action was brought, a fact sheet titled ‘Fact Sheet 2021’ (‘the fact sheet’), which indicated the estimated amount of the final target level. Similarly, the SRB stated that the amount of financial means available in the SRF was also available on its website and through other public sources, well before the adoption of the contested decision.
229 In order to examine whether the SRB complied with its obligation to state reasons as regards the determination of the annual target level, the Court recalls that, as regards the content of the obligation to state reasons, it is apparent from the case-law that the statement of reasons for a decision taken by an EU institution or body must, inter alia, be free from contradictions so as to enable the persons concerned to ascertain the real reasons for that decision, in order to defend their rights before the court with jurisdiction, and to enable the latter to exercise its power of review (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169 and the case-law cited; of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 20 and 45 to 47; and of 16 December 2015, Greece v Commission, T‑241/13, EU:T:2015:982, paragraph 56).
230 Similarly, where the author of the contested decision provides certain explanations concerning the reasons for that decision during the proceedings before the Courts of the European Union, those explanations must be consistent with the considerations set out in that decision (see, to that effect, judgments of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 45 to 47, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraphs 54 and 55).
231 If the considerations set out in the contested decision are inconsistent with such explanations provided during the judicial proceedings, the statement of reasons for the decision concerned does not fulfil the functions set out in paragraphs 181 and 182 above. In particular, such inconsistency, on the one hand, prevents the persons concerned from knowing the real reasons for the contested decision before they bring an action and from preparing a defence against them and, on the other hand, prevents the Courts of the European Union from identifying the reasons that served as the real legal basis for that decision and examining whether they complied with the applicable rules.
232 Lastly, it should be recalled that, when the SRB adopts a decision setting the ex ante contributions, it must inform the institutions concerned of the methodology used for calculating those contributions (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 122).
233 The same must apply to the method for determining the annual target level, since that amount is of decisive importance in the context of such a decision. As is apparent from Article 4 of Implementing Regulation 2015/81, the method for calculating the ex ante contributions consists of the dividing of that amount among all the institutions concerned, so that an increase or reduction in that amount leads to a corresponding increase or reduction of the ex ante contribution of each of those institutions.
234 It follows from the foregoing that, although the SRB is required to provide the institutions, by means of the contested decision, with explanations concerning the method for determining the annual target level, those explanations must be consistent with the explanations provided by the SRB during the judicial proceedings concerning the method actually applied.
235 However, that is not the case in the present instance.
236 The Court notes, first of all, that the contested decision set out, in recital 48, a mathematical formula which it presented as being the basis for determining the annual target level. It is apparent that that formula does not include the elements of the method actually applied by the SRB, as explained at the hearing. As is apparent from paragraphs 224 to 227 above, the SRB obtained the amount of the annual target level, in the context of that method, by deducting from the final target level the financial means available in 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. Those two stages of the calculation are not expressed at all in that mathematical formula.
237 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 of 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 two transactions referred to in paragraph 236 above had actually been applied by the SRB, it being noted, moreover, that the mathematical formula provided for in recital 48 of the contested decision did not even mention them.
238 Similar inconsistencies can also be seen in the way in which the 1.35% coefficient was set, which plays a crucial role in the mathematical formula referred to in paragraph 237 above. That coefficient could be understood as meaning that it is based, among other parameters, on the forecast growth of covered deposits during the remaining years of the initial period. However, that is inconsistent with the explanations provided by the SRB at the hearing, from which it follows that that coefficient was set in such a way 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 steps set out in paragraphs 224 to 227 above and, in particular, by dividing by three the amount resulting from deducting the financial means available in the SRF from the final target level. That approach is not at all apparent from the contested decision.
239 In addition, the Court notes that, according to the fact sheet, the estimated final target level was between EUR 70 thousand million and EUR 75 thousand million. That range is inconsistent with the range of the growth rate of covered deposits of between 4% and 7% set out in recital 41 of the contested decision. The SRB stated at the hearing that, for the purposes of determining the annual target level, it had taken into account the growth rate of 4% for 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 thousand million – which was the highest value in the first range. It is thus apparent that there is a discrepancy between those two ranges. First, the range relating to the rate of development of covered deposits also includes values above the 4% rate, the application of which would, however, have resulted in an estimated amount of the final target level higher than those included in the range relating to that target level. Second, it is impossible for the applicant to understand why the SRB included in the range relating to that target level amounts below EUR 75 thousand million. In order to arrive at such amounts, it would have been necessary to apply a rate below 4%, which is not, however, included in the range relating to the growth rate of covered deposits. In those circumstances, the applicant was not in a position to determine the manner in which the SRB had used the range relating to the rate of development of those deposits in order to arrive at the calculation of the estimated final target level.
240 It follows that, as regards the determination of the annual target level, the method actually applied by the SRB, as explained at the hearing, does not correspond to the method 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.
241 In the light of the foregoing, the Court holds that the contested decision is vitiated by defective reasoning as regards the determination of the annual target level.
242 Accordingly, it is appropriate to annul the contested decision on that ground, since such a failure to state reasons prevents the Court from examining whether the first plea is well founded.
…
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1. Annuls Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund in so far as it concerns Dexia Crédit Local;
2. Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Dexia Crédit Local, until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of this judgment, of a new decision of the SRB fixing the ex ante contribution to the Single Resolution Fund of that institution for the 2021 contribution period;
3. Orders the SRB to bear its own costs and to pay those incurred by Dexia Crédit Local;
4. Orders the European Parliament, the Council of the European Union and the European Commission to bear their own costs.
Delivered in open court in Luxembourg on 24 January 2024.
[Signatures]