JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
5 June 2024 (*)
(Economic and monetary policy – Prudential supervision of credit institutions – Specific supervisory tasks conferred on the ECB – Setting of prudential requirements – Irrevocable payment commitments – Action for annulment – No interest in bringing proceedings – Partial inadmissibility – Manifest error of assessment – Proportionality)
In Case T‑182/22,
Deutsche Bank AG, established in Frankfurt am Main (Germany),
BHW Bausparkasse AG, established in Hamelin (Germany),
norisbank GmbH, established in Bonn (Germany),
represented by H. Berger and M. Weber, lawyers,
applicants,
v
European Central Bank (ECB), represented by K. Lackhoff, M. Prokop and F. Bonnard, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of F. Schalin (Rapporteur), President, P. Škvařilová-Pelzl, I. Nõmm, G. Steinfatt and D. Kukovec, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure,
further to the hearing on 21 June 2023,
gives the following
Judgment
1 By their action based on Article 263 TFEU, first, the applicants, Deutsche Bank AG, BHW Bausparkasse AG and norisbank GmbH, seek the partial annulment of Decision ECB-SSM-2022-DEDEB-6 of the European Central Bank (ECB) of 2 February 2022 establishing prudential requirements (‘the decision of 2 February 2022’), including Annexes I and II thereto, with regard to the requirements imposed on them, and, second, Deutsche Bank and BHW Bausparkasse seek the partial annulment of Decision ECB-SSM-2022-DEDEB-44 of the ECB of 21 December 2022 establishing prudential requirements (‘the decision of 21 December 2022’), including Annexes I and II thereto, with regard to the requirements imposed on them.
Background to the dispute
2 The applicants, as a significant entity for the purposes of Article 6(4) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63), fall under the direct prudential supervision of the ECB.
3 On 13 April 2021, in connection with its task of prudential supervision, the ECB sent the applicants a questionnaire relating to their treatment of irrevocable payment commitments (‘IPCs’), which constitute an option for discharging the obligation to contribute to resolution funds or guarantee schemes by entering into a contract whereby it is agreed, on the one hand, that the amount due will be paid at first request and, on the other, that collateral equivalent to the amount due will be provided (see paragraph 39 below).
4 The applicants replied to the questionnaire on 11 May 2021.
5 On 8 November 2021, the ECB sent the applicants a draft decision following completion of the Supervisory Review and Evaluation Process (SREP), including, inter alia, a prudential requirement for the cumulative amount of the IPCs to be deducted from the Common Equity Tier 1 (‘CET 1’) capital. The applicants were invited to make observations on that draft.
6 The applicants submitted their observations by letter of 23 November 2021.
7 Pursuant to Article 4(1)(f) and Article 16 of Regulation No 1024/2013, the ECB adopted the decision of 2 February 2022.
8 In that decision, the ECB determined that, in accordance with Article 16(1)(c) of Regulation No 1024/2013, the arrangements, strategies, processes and mechanisms implemented by the applicants and the own funds and liquidity held by them did not ensure the sound management and coverage of their risks since the applicants overstated their CET 1 capital.
9 In order to cover that risk, the ECB imposed, first, a measure pursuant to Article 16(2)(d) of Regulation No 1024/2013 (‘the deduction measure’) and, second, a requirement pursuant to Article 16(2)(j) of that regulation (‘the reporting requirement’).
10 The deduction measure is equivalent, according to the formula set out in paragraph 1.3 of the decision of 2 February 2022, to the value of the sums put up as collateral and recorded as assets in the applicants’ balance sheet, minus the items capable of reducing the risk, that is to say, the CET 1 capital held by the applicants relating to the sums put up as collateral and, where applicable, the positive economic value attributed to the recorded assets, taking into account the sums put up as collateral for IPCs. The implementation of that measure is necessary provided that no waiver of own funds requirements applies at the individual level.
11 The reporting requirement is intended to enable the ECB to ensure that the deduction imposed on the applicants is correctly reflected.
Forms of order sought and events subsequent to the bringing of the action
12 On 11 April 2022, the applicants brought the present action.
13 As part of a new SREP cycle, the ECB adopted the decision of 21 December 2022, which replaced the decision of 2 February 2022 with effect from 1 January 2023 and which maintained the deduction measure and the reporting requirement.
14 In order to reach that decision, the ECB followed the same procedure as that described in paragraphs 3 to 6 above.
15 On 1 March 2023, the applicants lodged at the Court Registry a statement modifying the application in which Deutsche Bank and BHW Bausparkasse sought, inter alia, the partial annulment of the decision of 21 December 2022, relying on the same first two pleas as those initially put forward in the application against the decision of 2 February 2022.
16 By contrast, given that the decision of 21 December 2022 discontinued the deduction measure and the reporting requirement previously imposed on an individual basis with regard to Deutsche Bank and norisbank, the applicants withdrew the third plea initially put forward.
17 In their statement of modification of the application, and subsequently, in accordance with Article 86 of the Rules of Procedure of the General Court, by separate document lodged at the Court Registry on 10 May 2023, Deutsche Bank and norisbank applied for a declaration that there is no need to adjudicate in so far as the action concerned them on an individual level.
18 The ECB submitted its observations on the statement of modification of the application and on the application for a declaration that there is no need to adjudicate, within the prescribed periods.
19 Deutsche Bank and BHW Bausparkasse claim, in essence, that the Court should:
– partially annul the decision of 21 December 2022;
– order the ECB to pay the costs, including the costs incurred until the replacement of the decision of 2 February 2022.
20 Deutsche Bank and norisbank claim, in their application for a declaration that there is no need to adjudicate, that, since the decision of 21 December 2022 does not impose a deduction measure and a reporting requirement on an individual basis with regard to them, the Court should:
– declare that there is no longer any need to adjudicate;
– order the ECB to pay the costs.
21 The ECB contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
Admissibility of the action and the application for a declaration that there is no need to adjudicate with regard to Deutsche Bank and norisbank
22 Deutsche Bank and norisbank asked the Court to declare that there was no longer any need to adjudicate on the ground that the purpose of the dispute no longer existed in relation to them on an individual basis.
23 In that regard, the applicants claim that the decision of 21 December 2022, unlike the decision of 2 February 2022, no longer imposes the deduction measure on them on an individual basis.
24 The ECB, without formally raising an objection of inadmissibility by separate document, put forward a plea of inadmissibility. In that regard, it contends that the decision of 2 February 2022 did not impose a deduction measure or a reporting requirement on Deutsche Bank and norisbank on an individual basis, so that their action was inadmissible from the outset of the present proceedings.
25 According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate; that presupposes that the action must be capable, if successful, of procuring an advantage for the party bringing it (see judgment of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 24 and the case-law cited).
26 In the present case, it must be stated that the decision of 21 December 2022 does not contain any measure relating to IPCs in respect of Deutsche Bank and norisbank on an individual basis. In addition, although the decision of 2 February 2022, in view of the statement of modification of the application, no longer forms the subject of the present action, it was at the origin of the action, so that it is important to ascertain whether Deutsche Bank and norisbank had an interest in bringing proceedings against that decision on an individual basis when the action was brought. In that regard, it must be stated that that decision did not contain any measure relating to IPCs in respect of those applicants on an individual basis either. It is apparent from paragraph 1.3 of the decision of 2 February 2022, which is the only paragraph of that decision imposing the deduction measure and the reporting requirement and which also contains the formula to be applied in order to calculate the deduction to be made, that ‘the relevant Supervised Entities shall make these adjustments both at the individual level of each relevant Supervised [Entity] that [uses] such IPCs and at any consolidated or sub-consolidated level under which that relevant Supervised Entity is included, as applicable, and provided that no waiver of own funds requirements applies at the relevant level’. It therefore clearly follows that the deduction requirement is imposed at an individual level and consolidated level only ‘provided that no waiver of own funds requirements applies at the relevant level’. In that regard, it is common ground between the parties that Deutsche Bank and norisbank benefited from such a derogation. That derogation is also apparent from Annex I to the decision of 2 February 2022. Given that Deutsche Bank and norisbank benefited from a derogation from their owns funds requirements on an individual basis, which means that no deduction requirement (or any corresponding reporting requirement) applied at the individual level of those two applicants, the measure the annulment of which was initially sought did not exist in relation to them on an individual basis and they therefore had no interest in bringing proceedings against the measures contained in the decision of 2 February 2022. It must also be stated that those applicants have not put forward any other reasons why the annulment of the decision of 2 February 2022 would procure an advantage to them even though it was for them to do so (judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 45).
27 Accordingly, the present action must be dismissed as inadmissible, so far as Deutsche Bank and norisbank are concerned on an individual basis, to the extent that those applicants did not have an interest in bringing proceedings when the action was brought.
28 Since their action is inadmissible, there is no need to respond to their application for a declaration that there is no need to adjudicate.
29 It is therefore necessary, as regards the decision of 21 December 2022, to examine the substance of the action in respect of Deutsche Bank on a consolidated basis and in respect of BHW Bausparkasse on an individual basis.
Substance
30 In support of their action, Deutsche Bank and BHW Bausparkasse rely on two pleas in law, alleging, in the first place, that the ECB has infringed EU law by exceeding the powers conferred on it by Regulation No 1024/2013 and breaching general principles of EU law and, in the second place, that the ECB has breached the principle of proportionality.
The first plea in law, alleging that the ECB has infringed EU law by exceeding the powers conferred on it by Regulation No 1024/2013 and breaching general principles of EU law
31 In the first plea, which contains several complaints, Deutsche Bank and BHW Bausparkasse submit, in essence:
– that there is no provision of EU law permitting the ECB to impose the deduction measure and the reporting requirement;
– that the ECB failed to carry out an individual examination of their specific situation;
– that the ECB did not undertake a risk assessment on the basis of a coherent and adequate methodology;
– that the ECB based the assessment of the IPC risk on inaccurate facts and several manifest errors of assessment;
– that the ECB’s assessment of their arrangements, strategies, processes and mechanisms to manage and monitor a potential IPC risk is based on a grave error, in so far as the ECB’s powers were limited to requiring a reinforcement of those arrangements, strategies, processes and mechanisms.
32 It follows from the arguments made by Deutsche Bank and BHW Bausparkasse that they dispute, in essence, first, the ECB’s powers and, second, the existence of an individual examination or, at least, an appropriate examination of their individual situation. It will also be necessary to examine the complaints relating to the lack of an adequate methodology, the inaccuracy of the facts and the manifest errors of assessment regarding the examination carried out by the ECB.
33 The ECB disputes the arguments put forward by Deutsche Bank and BHW Bausparkasse.
– The ECB’s powers
34 Deutsche Bank and BHW Bausparkasse submit that the ECB imposed a general requirement with regard to own funds, which falls within the competence of the legislature, that competence being identified as falling within the ‘first pillar’, as opposed to the ECB’s power to supplement, on a case-by-case basis, regulatory requirements with additional measures as part of the SREP, such powers being identified as falling within the ‘second pillar’.
35 More specifically, in the first place, Deutsche Bank and BHW Bausparkasse claim that a risk of overstatement of the CET 1 capital, following on from an alleged loss of resources, disregards the legislative framework relating to the deduction items provided for in Article 36 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1, corrigenda OJ 2013 L 208, p. 68, and OJ 2013 L 321, p. 6). In the second place, they submit that the alleged risk of the IPCs given leading to a loss which must then be captured against the CET 1 capital cannot be determined without assessing the risk of the IPCs being called. In that regard, they add that in its reasoning the ECB does not sufficiently reflect the legal nature of an IPC, which is a conditional payment obligation, meaning that the payment obligation arises only if the respective condition has been fulfilled. The question to be asked is therefore whether the collateral provided will ever be seized and its value realised as a result of non-payment. Similarly, in the event of the IPCs being called, they would, in any event, have the option to pay the amount owed under the IPCs and would therefore retain the power to retrieve the collateral by paying the secured IPCs when they fall due. In the third place, for as long as the collateral is not realised, Deutsche Bank and BHW Bausparkasse retain full economic ownership of the collateral provided. The collateral has an economic value for them, in accordance with the applicable accounting framework. Furthermore, the continuing economic ownership, in the sense that there is no economic loss, is also demonstrated by the fact that they continue to receive earnings from interest related to the collateral provided. Deutsche Bank and BHW Bausparkasse refer, in that context, also to the way in which the Single Resolution Board (SRB) recognises the collateral, namely that it does not capitalise them as an asset without any offsetting liability.
36 Deutsche Bank and BHW Bausparkasse also submit, in connection with that complaint, that the reporting requirement goes beyond the powers conferred on the ECB under Article 16(2)(j) of Regulation No 1024/2013, in so far as it requires them to report the CET 1 capital as reduced by deducting the cumulative amount of the IPCs in COREP Template C 01.00, row 0529, ID 1.1.1.28 ‘CET 1 capital elements or deductions – other’, as set out in Annex I to Commission Implementing Regulation (EU) 2021/451 of 17 December 2020 laying down implementing technical standards for the application of Regulation No 575/2013 with regard to supervisory reporting of institutions and repealing Implementing Regulation (EU) No 680/2014 (OJ 2021 L 97, p. 1). Deutsche Bank and BHW Bausparkasse submit, inter alia, that, by imposing the reporting requirement, the ECB, instead of imposing ‘additional or more frequent reporting requirements’, effectively modified the statutory reporting requirements laid down in Article 430(1)(a) of Regulation No 575/2013, read in conjunction with Implementing Regulation 2021/451.
37 In the present case, it must be noted that the ECB imposed the deduction measure and the reporting requirement in order to address the risk of overstatement of the CET 1 capital of Deutsche Bank and BHW Bausparkasse.
38 Before examining the arguments put forward by Deutsche Bank and BHW Bausparkasse, it is appropriate, as a preliminary point, to recall the risk identified.
39 In that regard, it should be noted that Deutsche Bank and BHW Bausparkasse are required to pay, on at least an annual basis, ex ante contributions to the Single Resolution Fund (SRF) and to the German deposit guarantee scheme, namely the statutory compensation scheme applicable to German banks (Entschädigungseinrichtung deutscher Banken; ‘the EdB’), that is to say, to pay those contributions prior to and irrespective of any occurrence of the operations for which those funds were established. Those contributions may be made either by means of an immediate payment (in cash) or, for a certain percentage, by means of IPCs. In the case of a contribution in the form of IPCs, they must be secured by a cash deposit of an amount equivalent to that of the IPCs, at the free disposal of the resolution authorities or the deposit guarantee scheme.
40 In identifying the risk of overstatement of the CET 1 capital, the ECB took as its starting point the legal regime applicable to IPCs, namely that IPCs must be collateralised at the same time as they are given and that the sums transferred as that collateral are no longer freely available to the institution holding IPCs. The risk identified by the ECB is thus based on the following considerations:
– CET 1 capital must be available for immediate and unrestricted use by Deutsche Bank and BHW Bausparkasse to cover risks or losses as they arise;
– Deutsche Bank and BHW Bausparkasse gave IPCs as part of ex ante funding of the SRF and the EdB, and those IPCs are secured by Deutsche Bank and BHW Bausparkasse by means of a cash deposit;
– the sums put up as collateral are no longer available to Deutsche Bank and BHW Bausparkasse in a business-as-usual going-concern scenario;
– Deutsche Bank and BHW Bausparkasse recognise an asset in their balance sheet of an amount equivalent to that of the sums put up as collateral, considering those sums to be a claim for repayment, and treat IPCs as off-balance-sheet items. That combined accounting treatment of the sums put up as collateral and IPCs means that the loss of the economic value of the sums put up as collateral stemming from their unavailability in a business-as-usual going-concern scenario is not reflected in a decrease in the CET 1 capital;
– integrating that lost economic value in the CET 1 capital leads to a part of the CET 1 capital not being available for immediate use to cover risks or losses as they arise and leads to an overstatement of the CET 1 capital;
– that loss should have been captured from a prudential perspective against the CET 1 capital of Deutsche Bank and BHW Bausparkasse, since the purpose of that CET 1 capital is precisely to absorb losses on a going-concern basis.
41 Furthermore, according to the ECB, although the risk of overstatement is related to the risk of the IPCs being called, it is different from that risk. Whereas the risk of overstatement means that there is a risk that reported CET 1 capital will not be there to cover risks or losses as they arise, the risk of the IPCs being called represents the risk that the institution concerned will incur losses once the IPCs are called and the off-balance-sheet IPCs become an actual expense that results in losses to be recorded in its profit and loss account.
42 In the first place, as regards the argument that the ECB has no power to require the full deduction of certain items from own funds, which amounts to a general requirement not provided for by the legislature in Article 36 of Regulation No 575/2013, it is sufficient to note that it has already been rejected in the judgments of 9 September 2020, Société générale v ECB (T‑143/18, not published, EU:T:2020:389); of 9 September 2020, Crédit agricole and Others v ECB (T‑144/18, not published, EU:T:2020:390); of 9 September 2020, Confédération nationale du Crédit mutuel and Others v ECB (T‑145/18, not published, EU:T:2020:391); of 9 September 2020, BPCE and Others v ECB (T‑146/18, not published, EU:T:2020:392); of 9 September 2020, Arkéa Direct Bank and Others v ECB (T‑149/18, not published, EU:T:2020:393); and of 9 September 2020, BNP Paribas v ECB (T‑150/18 and T‑345/18, EU:T:2020:394) (‘the 2020 judgments’). It is true that, in those judgments, the Court acknowledged that the ECB had no regulatory powers under the ‘first pillar’, which concerns regulatory obligations, since that power falls exclusively within the competence of the EU legislature. However, it has been acknowledged that, in the context of its supervisory tasks, and in particular those carried out by the ECB under Article 4(1)(f) of Regulation No 1024/2013, the ECB could, once it has carried out checks, impose corrective measures on the basis of the vulnerabilities and weaknesses identified (see, to that effect, judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraphs 51 to 60).
43 Thus, although Regulation No 575/2013 lays down general prudential requirements for own funds, including CET 1 capital, which apply to all credit institutions that are subject to supervision, and although Article 36 of that regulation provides that several items must be deducted from CET 1 capital, that regulation, and more specifically Article 36 thereof, does not preclude the ECB from being able to identify a risk linked to CET 1 capital during its supervisory review and therefore does not prohibit the adoption of an additional prudential measure, such as a deduction measure under its ‘second pillar’ powers.
44 Accordingly, if Deutsche Bank and BHW Bausparkasse are exposed to some risk, in the present case the risk of overstatement of their CET 1 capital, and if it follows from the individual examination carried out by the ECB that the arrangements, strategies, processes and mechanisms implemented by Deutsche Bank and BHW Bausparkasse and the own funds and liquidity held by them do not ensure the sound management and coverage of that risk, the ECB may take one of the measures provided for in Article 16(2) of Regulation No 1024/2013, in the present case those referred to in Article 16(2)(d) of that regulation.
45 In the second place, the argument based on the legal nature of IPCs, according to which they constitute a conditional payment obligation, meaning that the obligation arises only if the respective condition has been fulfilled, cannot succeed either.
46 The risk identified by the ECB is that of an overstatement of CET 1 capital, a risk the existence of which as such has already been recognised in the case-law cited in paragraph 42 above. In that regard, it should be observed, as noted by the ECB, that, although the risk of overstatement of CET 1 capital is linked to the risk of the IPCs being called, they are different. The risk identified means that there is a risk that reported CET 1 capital will not be there to cover risks or losses as they arise, a risk that exists even in the event of a low probability of the IPCs being called.
47 As the ECB correctly found, the provision of collateral results in a net loss of economic resources that reduces the absorption capacity of the CET 1 capital as soon as the IPCs are given and the collateral is provided, collateral which Deutsche Bank and BHW Bausparkasse cannot retrieve in a going-concern scenario without an equivalent outflow of economic resources. As is apparent from the case-law cited in paragraph 42 above, the IPCs being given and the collateral being provided are inextricably linked and cannot be considered separately. IPCs, in so far as they contribute to the ex ante funding of the SRF and the EdB, must be irrevocable and secured by high quality collateral. The collateral provided is returned to the institutions concerned only in the event of a counterbalancing contribution, a withdrawal of their banking licence or a transfer of all covered deposits and IPCs to a transferee credit institution. Accordingly, as the ECB correctly states, even if the IPCs are not called, Deutsche Bank and BHW Bausparkasse will never be in a position to retrieve the economic value of the collateral in a going-concern scenario.
48 Furthermore, it is apparent from the replies of Deutsche Bank and BHW Bausparkasse to the questionnaire sent as part of the SREP, that they also consider that the only scenarios for retrieving their collateral, without a counterbalancing contribution, are, as regards the SRF, returning their banking licence and, as regards the EdB, transferring the covered deposits and IPCs given to the EdB to another credit institution with the consent of the EdB.
49 In the third place, the Court cannot accept the argument made by Deutsche Bank and BHW Bausparkasse that, since they receive all earnings from interest related to the collateral provided to secure the IPCs, they remain, from an accounting perspective, the economic owners of the cash collateral provided to secure the IPCs given to the SRF and the EdB. Similarly, the argument that the SRB recognises a liability related to the collateral cannot succeed.
50 In that regard, it should be noted that the ECB did not call into question the accounting framework applicable to Deutsche Bank and BHW Bausparkasse (see also paragraph 81 below) or the fact that the assets provided as collateral could have an economic value.
51 It is apparent from paragraph 3.3.3 of the decision of 21 December 2022 that the ECB took account of the fact that Deutsche Bank and BHW Bausparkasse retained the right to receive interest associated with the collateral. Nevertheless, the ECB could assess how that interest had actually contributed, in the systems of Deutsche Bank and BHW Bausparkasse, to the positive economic value which they attributed to that collateral only on the basis of the information provided by them, but they did not provide that information.
52 Similarly, the fact that the SRB recognises a liability related to the collateral recorded as an asset does not alter the limited conditions for repayment of that liability vis-à-vis a credit institution, in particular the fact that the cash collateral is returned only if there is a counterbalancing contribution in a going-concern scenario. In such a scenario, the liability recognised by the SRB, corresponding to the return of the collateral, become due only when the IPCs themselves become due. Accordingly, the liability recognised by the SRB does not represent any real economic value for the institutions concerned, bearing in mind that they will never be in a position to retrieve the economic resources constituted by the cash collateral without incurring an equivalent outflow of economic resources.
53 Last, the argument that the reporting requirement exceeds the powers conferred on the ECB by Article 16(2)(j) of Regulation No 1024/2013 must also be rejected.
54 Article 16(2)(j) of Regulation No 1024/2013 authorises the ECB to ‘impose additional or more frequent reporting requirements, including reporting on capital and liquidity positions’.
55 The fact that the information sought in order to ensure that the deduction measure is implemented must be provided using the template set out in Annex I to Implementing Regulation 2021/451 does not support the conclusion, contrary to what Deutsche Bank and BHW Bausparkasse claim, that it is therefore a ‘first pillar’ measure or that the ECB exceeded its powers.
56 Similarly, the reporting requirement imposed by the decision of 21 December 2022 does not amend or modify the reporting requirement in Article 430(1)(a) of Regulation No 575/2013 or in Implementing Regulation 2021/451.
57 It follows from the foregoing that the ECB has the power to impose the deduction measure and the reporting requirement provided that it has carried out an individual examination of the situation of Deutsche Bank and BHW Bausparkasse in the light of the prudential risk identified and that examination leads to the conclusion that that risk is not sufficiently managed or covered.
58 It is therefore necessary to ascertain whether the ECB carried out an individual examination and to examine the other related complaints, such as the methodology applied and the assessment resulting therefrom.
– The individual examination
59 It is settled case-law that, if the competent institution has a discretion, the judicial review which the Court must carry out of the merits of the grounds of the contested decision must not lead it to substitute its assessment for that of the competent institution, but seeks to ascertain that the contested decision is not based on materially incorrect facts and that it is not vitiated by an error of law, a manifest error of assessment or misuse of powers (see, to that effect, judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 55 and the case-law cited).
60 In that regard, it is settled case-law that the Courts of the European Union must establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, to that effect, judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 56 and the case-law cited).
61 It is also settled case-law that, where the institutions have such a power of appraisal, respect for the guarantees conferred by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees conferred by the EU legal order in administrative procedures include, in particular, the principle of sound administration, which entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14, and of 29 March 2012, Commission v Estonia, C‑505/09 P, EU:C:2012:179, paragraph 95).
62 As regards the individual examination, Deutsche Bank and BHW Bausparkasse claim that the ECB did not actually carry out such a case-by-case examination. The ECB did not assess their specific situation, in particular their risk profile and level of liquidity, and did not take into account all possible factors that could mitigate the alleged risk. They add that the failure to carry out an individual examination also results from the fact that the reasons given to them to justify the deduction measure are the same as those provided to other credit institutions that give IPCs. In addition, the ECB erred in focusing on the question of how the institutions managed the collateral, whereas the relevant question is whether the IPCs would be called and, accordingly, what their effects would be on own funds and liquidity.
63 As already noted, the risk identified by the ECB is the risk of overstatement of the CET 1 capital and the aim of the deduction measure is to address that risk, not to address the risks of the IPCs potentially being called. The risk of overstatement of the CET 1 capital stems from the unavailability of the sums put up as collateral for the commitment given by Deutsche Bank and BHW Bausparkasse. Accordingly, the question of how Deutsche Bank and BHW Bausparkasse manage the collateral provided is, contrary to what they claim, a relevant question.
64 Similarly, the existence of the risk of overstatement as such has already been recognised by the Court (see paragraph 46 above). Furthermore, it is not for the Court to require the ECB to examine the risk of the IPCs being called and not the risk of overstatement of the CET 1 capital.
65 In the present case, the examination was conducted in accordance with the methodology developed by the ECB, consisting of a questionnaire that led it to examine, in the light of the responses of institutions that are subject to prudential supervision and contribute to the funding of the SRF and deposit guarantee schemes by giving IPCs, whether those institutions were exposed to the risk of overstatement of CET 1 capital and, if so, whether that risk was covered.
66 That methodology was developed following the 2020 judgments in which the Court found that the ECB had failed to carry out a case-by-case examination. The purpose of that questionnaire was to provide the ECB with information, in the first place, to quantify the risk of overstatement of CET 1 capital and, in the second place, to ascertain whether, in the light of each of the factors referred to in Article 16(1)(c) of Regulation No 1024/2013, the institutions concerned had ensured that that risk was managed and covered.
67 To that end, in order to quantify the risk, the questions asked concerned the amounts of the IPCs given, the collateral provided, the accounting and prudential treatment of the IPCs and the collateral, and possible scenarios for the collateral being retrieved or the IPCs being called, including the links between those different scenarios. In order to assess the arrangements, strategies, processes and mechanisms implemented by the credit institution concerned to manage the risk, and the capital and liquidity held to cover that risk, the ECB requested further information on, inter alia, accounting and prudential treatment, risk mitigants, liquidity and own funds measures and any other measures employed to mitigate the risk of overstatement of CET 1 capital.
68 On the basis of the information received, the ECB subsequently examined the situation of Deutsche Bank and BHW Bausparkasse, as is apparent from the decision of 21 December 2022.
69 First, it found that Deutsche Bank and BHW Bausparkasse had given IPCs, for which they had provided collateral (in the form of a cash deposit), to the SRF and the EdB.
70 Second, it referred to the accounting treatment of the IPCs and the collateral as applied by Deutsche Bank and BHW Bausparkasse, as well as the prudential treatment applied to the collateral recorded as an asset on the balance sheet and the prudential treatment applied to IPCs as off-balance-sheet items.
71 More specifically, after carrying out the risk quantification, the ECB assessed whether the CET 1 capital held by Deutsche Bank and BHW Bausparkasse ensured the sound management and coverage of the risk of overstatement of the CET 1 capital. It followed a five-step approach.
72 In the first place, the ECB assessed whether Deutsche Bank and BHW Bausparkasse had covered part of the risk of overstatement of the CET 1 capital with CET 1 capital that they were already required to hold under the applicable capital framework and that could be counted towards covering that risk. In the second place, the ECB assessed whether the level of CET 1 capital held by the applicants in excess of the total capital requirements applicable to them was likely to cover the risk of overstatement of the CET 1 capital. In the third place, the ECB assessed whether any positive economic value could be assigned to the collateral used to secure the IPCs from a prudential perspective and thus decrease the impact of giving the IPCs and providing collateral to secure them on the risk-bearing capacity of the CET 1 capital. In the fourth place, the ECB assessed whether there were deferred tax assets or liabilities that might reduce the risk of overstatement of the CET 1 capital and, in the fifth place, the ECB examined whether there were other specific circumstances or measures employed by Deutsche Bank and BHW Bausparkasse that might mitigate the risk of overstatement of the CET 1 capital.
73 Following the examination of own funds described above, the ECB examined whether the liquidity held by Deutsche Bank and BHW Bausparkasse ensured the sound management and coverage of the risk identified.
74 In addition, the ECB examined whether and how the arrangements, strategies, processes and mechanisms implemented by Deutsche Bank and BHW Bausparkasse ensured the sound management and coverage of the risk of overstatement of the CET 1 capital.
75 It must be held that it follows that the ECB took into account the relevant factors, as set out in Article 4(1)(f) and Article 16(1)(c) of Regulation No 1024/2013.
76 In that regard, the ECB assessed whether the capital and liquidity held by Deutsche Bank and BHW Bausparkasse covered the risk identified and assessed whether Deutsche Bank and BHW Bausparkasse had implemented arrangements, strategies, processes and mechanisms to manage that risk. In addition, it is apparent from the decision of 21 December 2022 that the ECB substantiated its reasoning. Similarly, it must be held that it asked questions that were relevant to the risk identified.
77 The arguments put forward by Deutsche Bank and BHW Bausparkasse do not call the foregoing into question.
78 In that regard, Deutsche Bank and BHW Bausparkasse deny that the ECB carried out an individual examination since, in essence, the justifications for the deduction measure which it imposed on them are identical to those provided to the other supervised entities for the same capital assessment.
79 It is important to note, however, that if some institutions apply more or less the same accounting treatment as Deutsche Bank and BHW Bausparkasse, there is a strong likelihood that the same risk will be identified on the basis of similar considerations. It should also be recalled that the Court did not rule out, in the 2020 judgments, that identical risks could be covered by identical measures (judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraph 80).
80 As regards, more specifically, the argument that the ECB created a general rule for accounting treatments identical to that of Deutsche Bank and BHW Bausparkasse, it must be stated that the accounting treatment of IPCs is specific to each institution and that the applicable accounting rules leave a certain margin, even a choice, from which Deutsche Bank and BHW Bausparkasse benefited.
81 It must also be stated that the ECB did not contest whether the accounting methods of recognition and valuation applied by Deutsche Bank and BHW Bausparkasse were in line with accounting standards. It is also common ground that the accounts of Deutsche Bank and BHW Bausparkasse were drawn up in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards (OJ 2002 L 243, p. 1). The fact remains that specific accounting treatment may lead to a specific prudential risk.
82 In that respect, it is possible to include the payment commitment on the balance sheet as a liability or the collateral agreement in the profit and loss account. The institution applying such treatment would record a loss, so that an equivalent amount would be deducted from its CET 1 capital when the commitment is given. It is also possible not to record IPCs as liabilities on the balance sheet, that is to say, to treat them as off-balance-sheet items and, at the same time, to recognise the cash put up as collateral as an asset on the balance sheet as a claim against the SRF. Such accounting treatment does not result in a decrease in CET 1 capital.
83 Similarly, from the point of view of prudential treatment, it is possible to make a voluntary reduction or to consider that the asset recorded on the balance sheet, representing the claim for repayment of the sums put up as collateral, generates exposure to a risk to which a specific weighting must be assigned, which will give rise to own funds requirements and, accordingly, could partially cover the risk of overstatement of the CET 1 capital.
84 All of those possibilities are reflected, inter alia, in the decisions taken as part of the 2022 SREP, which the ECB produced following a measure of organisation of procedure and which show that the examination of the individual situation of the various institutions that give IPCs led to different conclusions. The amount of the sums put up as collateral and which consequently became unavailable was subject to a partial deduction, total deduction, or even no deduction at all, depending on the institutions concerned.
85 In the present case, the ECB took into account the accounting treatment applied by Deutsche Bank and BHW Bausparkasse as a factual element in determining whether and how Deutsche Bank and BHW Bausparkasse managed and covered the prudential risks incurred as a result of giving IPCs and providing collateral.
86 Thus, it found that Deutsche Bank and BHW Bausparkasse had opted for a combined accounting treatment, consisting of treating the IPCs as off-balance-sheet items for accounting purposes while entering the sums put up as collateral as an asset on their balance sheet at their full nominal value. For the ECB, such a choice meant that the ex ante contribution to the funding of the SRF and the EdB was not reflected in the balance sheet, resulting in a risk of overstatement of the CET 1 capital.
87 The purpose of the examination carried out by the ECB was precisely to ascertain whether that risk was covered in one way or another.
88 Accordingly, it follows from the foregoing that the complaint relating to the absence of an individual examination must be rejected.
– The allegedly inadequate and incoherent assessment methodology
89 Deutsche Bank and BHW Bausparkasse argue that the examination with regard to quantification of risk, capital assessment and liquidity assessment, as described in paragraphs 3.3.2 to 3.3.4 of the decision of 21 December 2022, is not based on an adequate methodology. They submit that the ECB did not apply its own SREP methodology, as published on its website, or the European Banking Authority (EBA) Guidelines on common procedures and methodologies for the supervisory review and evaluation process. By way of example, they submit that the ECB refrained from calculating a score for the IPC risk.
90 Deutsche Bank and BHW Bausparkasse also argue that the methodology applied overrides the statutory and contractual rules governing the IPCs and the collateral as well as the established and applicable accounting standards. Last, according to Deutsche Bank and BHW Bausparkasse, the ECB evaded its own obligation to undertake an examination under Article 16(1)(c) and (2)(d) of Regulation No 1024/2013 by using a questionnaire requesting information on IPCs.
91 First, it must be stated, as already stated in paragraph 66 above, that the methodology used by the ECB, which consists of a detailed questionnaire, was developed following the 2020 judgments and seeks to examine the existence of a specific risk.
92 In view of the context in which that methodology was developed, the complaint that the ECB did not apply its recommended methodology for the assessment of risks to capital and risks to liquidity, as published on its website, or the methodology recommended by the EBA is irrelevant. In any event, Deutsche Bank and BHW Bausparkasse have not sufficiently explained their line of argument.
93 Second, in so far as Deutsche Bank and BHW Bausparkasse take issue with the fact that the ECB asked them to provide information by means of a questionnaire, it is sufficient to note that that questionnaire represents compliance with their obligation to provide assistance to the ECB to clarify the facts in a procedure relating to the SREP, in accordance with Article 28(3) of Regulation (EU) No 468/2014 of the ECB of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the ECB and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1). That questionnaire also enabled Deutsche Bank and BHW Bausparkasse to take a position on that examination.
94 Third, it must be held that, in claiming that the methodology applied overrides the statutory and contractual rules governing the IPCs and the collateral as well as the accounting rules, Deutsche Bank and BHW Bausparkasse refer to the fact that they retain economic ownership of the collateral in question. In that regard, it is sufficient to recall that the accounting rules are not called into question and that, as already stated in paragraph 49 above, the fact that they remain the economic owners of the collateral does not call into question the lack of effective control that they have over it.
95 Fourth, the argument made by Deutsche Bank and BHW Bausparkasse that the ECB made a grave procedural error by failing to ask all the relevant questions for the purpose of establishing the relevant facts relating to their situation must be rejected.
96 Deutsche Bank and BHW Bausparkasse criticise only the fact that, in the questionnaire, the ECB did not ask questions about the arrangements, strategies, processes and mechanisms that they would implement if the deduction requirements imposed by the 2019 SREP decision, which preceded the decision taken on 2 February 2022 after a break due to the COVID-19 pandemic and imposed a similar deduction measure, were lifted or not imposed.
97 It must be stated that Article 16(1)(c) of Regulation No 1024/2013 requires the ECB to carry out an individual examination in order to determine whether the arrangements, strategies, processes and mechanisms implemented by the credit institution and the own funds and liquidity held by it ensure the sound management and coverage of its risks. It follows that the ECB must assess a real situation and not a hypothetical situation. Moreover, it goes without saying that the ECB cannot rely on hypothetical situations when taking measures. Furthermore, it should be noted that Deutsche Bank and BHW Bausparkasse made use, during the administrative procedure, of the opportunity to express their views in so far as they explained their accounting treatment of the IPCs and the collateral that they had before the 2019 SREP decision was taken, as well as the reservations that they had with regard to that decision. Furthermore, a measure imposed in order to address the risk identified does not preclude a credit institution from being able to opt for other measures to remedy that risk so that, in the next SREP cycle, the ECB can take them into account. In any event, the ECB may take into account only the actual arrangements and processes implemented by the credit institutions concerned.
– The alleged manifest errors of assessment
98 As regards the alleged manifest errors of assessment and the claim that the ECB based its decision on inaccurate facts, it should be noted that Deutsche Bank and BHW Bausparkasse reiterate the arguments already put forward in connection with the other complaints, namely the use of an inadequate methodology, the fact that the risk identified cannot be determined without assessing the risk of the IPCs being called and the fact that they remain the economic owners of the collateral. They submit that those factors led the ECB to use inaccurate facts and to make manifest errors of assessment in the decision of 21 December 2022.
99 For the same reasons as those set out in connection with the previous complaints, those arguments cannot succeed.
100 As already held, the ECB used an appropriate methodology in the light of the risk identified.
101 Similarly, the argument based on the legal nature of IPCs as conditional payment obligations, which consists in alleging that the ECB should also have examined the risk of the IPCs being called and taken that risk into account, has already been rejected. Accordingly, the decision of 21 December 2022 is not based, in that regard, on inaccurate facts or manifest errors of assessment.
102 Moreover, the argument made by Deutsche Bank and BHW Bausparkasse that they remain, according to the accounting rules applied, the economic owners of the collateral provided does not alter the fact that that collateral is not available to absorb losses as they arise.
103 Accordingly, the argument that the decision of 21 December 2022 is based on an incorrect assessment of their own funds in that the ECB made a manifest error in finding that the collateral provided has no economic value must be rejected.
104 In that respect, the fact that Deutsche Bank and BHW Bausparkasse could retrieve collateral by surrendering their licence or transferring the IPCs to another institution does not add any positive economic value from the perspective of the risk-bearing capacity of the CET 1 capital, given that the CET 1 capital must be able to absorb losses as they arise and Deutsche Bank and BHW Bausparkasse were pursuing a going-concern strategy.
105 Similarly, the fact that neither the SRF nor the EdB had a right to make use or dispose of the collateral prior to calling the IPCs did not make the collateral available to Deutsche Bank and BHW Bausparkasse on a going-concern basis, since it had to be kept available and unencumbered for the SRB or the EdB for a potential call. That consideration is therefore irrelevant for the purpose of determining the economic value of collateral from the perspective of the risk-bearing capacity of the CET1 capital.
– The allegedly incorrect assessment of the arrangements, strategies, processes and mechanisms to manage and monitor a potential IPC risk
106 Deutsche Bank and BHW Bausparkasse claim that the ECB failed to take account of the previous year’s SREP decision, breached the principle of fairness and did not consider lifting the deduction requirement imposed by the 2019 SREP decision.
107 The allegations made by Deutsche Bank and BHW Bausparkasse are unfounded.
108 In the first place, the ECB took into account, in the decision of 21 December 2022, the deduction based on the requirement imposed in the previous year’s SREP decision. The fact remains that each SREP cycle is a standalone cycle in which the IPC risk is reassessed, so that the introduction of arrangements, strategies, processes and mechanisms remains relevant.
109 In the second place, Deutsche Bank and BHW Bausparkasse cannot validly claim that the ECB did not inform them in advance of its intention again to require a deduction measure. In that regard, although Deutsche Bank and BHW Bausparkasse complied with the previous year’s SREP decision, they did not independently develop an internal mechanism to address the risk identified in that decision. If they apply the deduction resulting from the previous year’s SREP decision without developing a mechanism capable of systematically preventing the risk previously identified, Deutsche Bank and BHW Bausparkasse face the possibility of a similar measure being required the following year.
110 In the third place, Article 16(2)(b) of Regulation No 1024/2013 confers on the ECB the power to require, in the context of its supervisory activities, the reinforcement of the arrangements, processes, mechanisms and strategies. However, as the ECB correctly submitted, it is not obliged, from the perspective of procedural fairness, first to demand the reinforcement of the arrangements, processes, mechanisms and strategies under Article 16(2)(b) of Regulation No 1024/2013 before requiring a deduction under Article 16(2)(d) of that regulation.
111 It follows from the foregoing that the complaints put forward under the first plea must be rejected and, consequently, the first plea must be rejected in its entirety.
The second plea, alleging that the ECB has breached the principle of proportionality
112 Deutsche Bank and BHW Bausparkasse submit that the ECB made an error of law in the decision of 21 December 2022 regarding the proportionality of the measures required. They claim that, even on the assumption that the requirements of Article 16(1)(c) of Regulation No 1024/2013 were met, and that the arrangements, strategies, processes and mechanisms implemented by them and the own funds and liquidity held by them did not ensure the sound management and coverage of the IPC risk, the ECB should still have taken into account that Article 16(2) of that regulation provides for other appropriate measures which would have been less onerous. Thus, the ECB could have required the reinforcement of the arrangements, processes, mechanisms and strategies necessary to address the IPC risk appropriately pursuant to Article 16(2)(b) of Regulation No 1024/2013. It could also have requested an increase in the additional own funds requirements pursuant to Article 16(2)(a) of Regulation No 1024/2013. In any event, the probability of the IPCs being called in full is less than 100%, which means that a measure aimed at deducting the full amount of the IPCs or the associated collateral cannot be appropriate and necessary.
113 In addition, Deutsch Bank and BHW Bausparkasse claim that the ECB modified the ‘COREP reporting requirements’ applicable to their own funds. They also submit that the ECB wrongly assumes that the IPCs will be called, meaning that the probability of occurrence is 100% when, in reality, such a call is highly unlikely and the collateral can therefore be retrieved by the applicants according to their free discretion, either by surrendering their licence or by transferring the IPCs. Therefore, the IPC risk is a future risk that can adequately be covered by an increase in the additional own funds requirements.
114 The ECB disputes the arguments put forward by Deutsche Bank and BHW Bausparkasse and contends that this plea should be rejected.
115 As a preliminary point, it should be borne in mind that, according to Article 5(4) TEU, under the principle of proportionality, the content and form of Union action is not to exceed what is necessary to attain the objectives of the Treaties. The EU institutions are required to apply the principle of proportionality as laid down in Protocol No 2 on the application of the principles of subsidiarity and proportionality, annexed to the FEU Treaty.
116 According to the settled case-law, in accordance with the principle of proportionality, which is one of the general principles of EU law, the acts adopted by EU institutions must be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not exceed the limits of what is necessary in order to achieve those objectives; where there is a choice between several appropriate measures, recourse must be had to the least onerous; and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T‑122/15, EU:T:2017:337, paragraph 67 and the case-law cited).
117 Furthermore, according to the Court of Justice, the assessment of the proportionality of a measure must be reconciled with compliance with the discretion that may have been conferred on the EU institutions at the time it was adopted (see judgment of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 53 and the case-law cited).
118 In the present case, after finding that the existence of the risk identified, which was not covered, gave rise to the problematic situation referred to in Article 16(1)(c) of Regulation No 1024/2013 and that, in order to address that problem, it could exercise the powers conferred on it by Article 16(2)(d) of that regulation to require the institution concerned to apply a specific provisioning policy or treatment of assets in terms of own funds requirements, the ECB examined the proportionality of the deduction measure.
119 In the first place, the ECB determined that the deduction requirement was appropriate to address the risk of overstatement of the CET 1 capital because it specifically addressed the loss of economic resources that had already occurred. In the second place, the ECB assessed whether the deduction requirement was necessary and, in particular, whether there were other, less onerous, alternative measures that could similarly achieve the objective that only risk-bearing CET 1 capital is reported.
120 The ECB considered that the use of other ‘second pillar’ measures under Article 16(2)(a) of Regulation No 1024/2013, aimed at increasing capital requirements, and under Article 16(2)(i) thereof, aimed at restricting the distribution of dividends, would not achieve that objective.
121 It must be held that the analysis regarding the proportionality of the deduction measure is not incorrect.
122 In that regard, in the first place, it should be recalled that the risk identified concerns the risk of overstatement of the CET 1 capital, not the risk of the IPCs being called. For that reason, the argument that the probability of a call is less than 100%, which would justify alternative and less onerous measures, cannot succeed.
123 In the second place, the ECB is not obliged, from the perspective of proportionality, first to demand the reinforcement of the arrangements, processes, mechanisms and strategies under Article 16(2)(b) of Regulation No 1024/2013 before requiring a deduction under Article 16(2)(d) of that regulation. A mere requirement to reinforce the arrangements, processes, mechanisms and strategies without their actual implementation and without requiring the overstatement of CET 1 capital to be corrected by an appropriate deduction would lead to a situation whereby the relevant credit institution’s non-covered risk would subsist until such time as the arrangements, processes, mechanisms and strategies are reinforced.
124 In the third place, as regards the argument made by Deutsche Bank and BHW Bausparkasse that they are required to use the template set out in Annex I to Implementing Regulation 2021/451 in order to fulfil the reporting requirement, it must be borne in mind that that requirement does not alter their reporting requirement set out in Article 430(1) of Regulation No 575/2013 (see paragraph 56 above). Furthermore, such an argument cannot usefully be relied on to establish the alleged breach of the principle of proportionality.
125 In the light of the foregoing, the second plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
126 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
127 Since Deutsche Bank, BHW Bausparkasse and norisbank have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the ECB.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition)
hereby:
1. Dismisses as inadmissible the action brought by Deutsche Bank AG seeking the annulment of the measures imposed on an individual basis under paragraph 1.3 of Decision ECB-SSM-2022-DEDEB-6 of the European Central Bank (ECB) of 2 February 2022;
2. Dismisses as inadmissible the action brought by norisbank GmbH seeking the annulment of the measures imposed on an individual basis under paragraph 1.3 of Decision ECB-SSM-2022-DEDEB-6 of the ECB of 2 February 2022;
3. Dismisses the action as unfounded as to the remainder;
4. Orders Deutsche Bank, BHW Bausparkasse AG and norisbank to pay the costs.
Schalin | Škvařilová-Pelzl | Nõmm |
Delivered in open court in Luxembourg on 5 June 2024.
V. Di Bucci | | M. van der Woude |