Case T‑347/21
(Publication in extract form)
Hypo Vorarlberg Bank AG
v
Single Resolution Board
Judgment of the General Court (Eighth Chamber, Extended Composition) of 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 Single Resolution Board on the calculation of the 2021 ex ante contributions – Obligation to state reasons – Right to be heard – Principle of legal certainty – Right to effective judicial protection – Plea of illegality – Limitation of the temporal effects of the judgment)
1. Judicial proceedings – Application initiating proceedings – Formal requirements – Clear and precise statement of the pleas relied on – Similar requirements for claims made in support of a plea – Imprecise formulation of a claim – Inadmissibility
(Rules of Procedure of the General Court, Art. 76(d))
(see paragraphs 27-36)
2. EU law – Principles – Legal certainty – EU rules – Requirements of clarity and precision – Limits
(see paragraphs 68-71)
3. 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; Commission Regulation 2015/63, Arts 4 to 7 and 9 and Annex I; European Parliament and Council Directive 2014/59)
(see paragraphs 114-128)
4. EU institutions – Exercise of powers – Power conferred on the Commission to adopt delegated acts – Power to amend a legislative act – Distinct from the power to supplement such an act
(Art. 290(1) TFEU)
(see paragraphs 134-136)
5. 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 148, 149, 187, 188)
6. 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 evidence 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 – Principle of non-disclosure of business secrets – Obligation for the SRB to publish and disclose to the institutions concerned, in a collective and anonymised form, the information relating to the institutions to calculate the ex ante contribution
(Art. 296, second para., TFEU; European Parliament and Council Regulation No 806/2014; Commission Regulation 2015/63, Arts 4 to 7 and 9 and Annex I; European Parliament and Council Directive 2014/59)
(see paragraphs 150-159)
7. 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) – Obligation for the SRB to communicate to the institutions concerned the method of calculating those contributions and the method of determining the amount of the annual target level
(Art. 296, second para., TFEU; European Parliament and Council Regulation No 806/2014; Council Regulation 2015/81, Art. 4; Commission Regulation 2015/63, Arts 4 to 7 and 9 and Annex I; European Parliament and Council Directive 2014/59)
(see paragraphs 190-192)
8. 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) – Statement of reasons based solely on other legal acts, such as interim decisions, explaining and supplementing certain aspects of the determination of those contributions – Those other acts are not published or disclosed to the institutions – Unlawfulness
(Art. 296, second para., TFEU)
(see paragraphs 203, 208)
9. EU law – Principles – Rights of the defence – Right to be heard – Scope – Online form inviting the institutions to submit their observations on the calculation of the ex ante contributions payable to the Single Resolution Fund (SRF) – Whether permissible – No infringement of the right to be heard
(Charter of Fundamental Rights of the European Union, Art. 41(2)(a))
(see paragraphs 292, 293, 299, 305, 306)
Résumé
Hearing an action for annulment, which it upholds, the General Court, after rejecting the pleas of illegality raised against Regulation No 806/2014, (1) Directive 2014/59 (2) and Delegated Regulation 2015/63, (3) provides significant clarification regarding the scope of the obligation on the Single Resolution Board (SRB) to state reasons as regards the setting of the annual target level.
Hypo Vorarlberg Bank AG (‘the applicant’) is a credit institution established in Austria.
On 14 April 2021, the SRB adopted a decision in which it set (4) 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’). (5)
Findings of the Court
With regard to the plea alleging failure to fulfil the obligation to state reasons 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 by all of the institutions authorised in the territories of all of the Member States participating in the Single Resolution Mechanism. 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 participating Member States 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, for all the institutions authorised in the territories of the participating Member States. 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 during 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 procyclical 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 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 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 the present case.
At the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period by 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 collected 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 being 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 the applicant 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 that 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 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.