Provisional text
JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
5 June 2024 (*)
(Economic and monetary policy – Supervision of credit institutions – Specific supervisory tasks conferred on the ECB – Setting of prudential requirements – Irrevocable payment commitments – Force of res judicata – Misuse of powers – Manifest error of assessment – Principle of sound administration – Proportionality)
In Case T‑186/22,
BNP Paribas, established in Paris (France), represented by A. Gosset-Grainville and M. Trabucchi, lawyers,
applicant,
v
European Central Bank (ECB), represented by E. Yoo, D. Segoin 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: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 20 June 2023,
gives the following
Judgment
1 By its action based on Article 263 TFEU, the applicant, BNP Paribas, seeks annulment, first, of point 1.10 and points 3.10.1 to 3.10.8 of Decision ECB-SSM-2022-FRBNP-7 of the European Central Bank (ECB) of 2 February 2022 (‘the decision of 2 February 2022’), including the annexes thereto, in so far as it prescribes measures to be taken in relation to the irrevocable payment commitments (‘the IPCs’) concerning deposit guarantee schemes or resolution funds, and, second, point 1.10 and points 3.9.1 to 3.9.8 of Decision ECB-SSM-2022-FRBNP-86 of the ECB of 21 December 2022 (‘the decision of 21 December 2022’), including the annexes thereto, in so far as it prescribes measures to be taken in relation to the IPCs concerning deposit guarantee schemes or resolution funds.
Background to the dispute
2 The applicant, 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), falls under the direct prudential supervision of the ECB.
3 On 31 March 2021, in connection with its task of prudential supervision, the ECB sent the applicant a questionnaire relating to its treatment of the 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 that the amount due will be paid at first request of the authority responsible for the resolution funds or guarantee schemes, that contract being accompanied by a guarantee that the funds will be made exclusively available, in practice in the form of a cash deposit, in an amount equal to the contribution due.
4 The applicant replied to the questionnaire on 29 April 2021.
5 On 10 November 2021, the ECB sent the applicant 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 applicant was invited to make observations on that draft.
6 The applicant submitted its observations by letter of 22 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 applicant and the own funds and liquidity that it held did not ensure sound management and coverage of its risks since the applicant overstated its 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 imposed is equivalent, according to the calculation formula set out in paragraph 1.10 of the decision of 2 February 2022, to the value of the sums put up as collateral and recorded as assets on the applicant’s balance sheet, minus the items capable of reducing the risk, that is to say, the CET 1 capital held by the applicant relating to the sums put up as collateral and, where applicable, the positive economic value of the collateral attributed to the recorded assets, taking into account the sums put up as collateral for IPCs.
11 The reporting requirement is intended to enable the ECB to ensure that the deduction imposed on the applicant is correctly reflected.
Forms of order sought and events subsequent to the bringing of the action
12 On 12 April 2022, the applicant 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 (together, ‘the contested decisions’) 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 15 February 2023, the applicant lodged at the Court Registry a statement modifying the application, in which it also seeks the partial annulment of the decision of 21 December 2022, relying on the same pleas in law as those initially put forward in the application against the decision of 2 February 2022.
16 By letter of 14 March 2023, the ECB submitted its observations on that statement of modification.
17 The applicant claims that the Court should:
– partially annul the decision of 2 February 2022;
– partially annul the decision of 21 December 2022;
– order the ECB to pay the costs.
18 The ECB contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
19 In support of its action, the applicant relies on four pleas in law, alleging, first, an infringement of the principle of res judicata and misuse of powers, second, a manifest error of assessment and an infringement of the principle of sound administration, third, an error of law resulting from the deprivation of the effectiveness of the legislation governing the use of IPCs and, fourth, an infringement of the principle of proportionality.
The first plea in law, alleging an infringement of the principle of res judicata and misuse of powers
20 The applicant submits, in essence, that the ECB exceeded the powers conferred on it under Regulation No 1024/2013, as clarified 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’), by imposing a general measure which does not take account of its individual prudential situation. In so doing, the ECB infringed Article 266 TFEU and Article 4(1)(f) and Article 16(1)(c) and (2)(d) and (j) of Regulation No 1024/2013.
21 More specifically, the applicant complains that the ECB based its decision on reasoning which could only lead to a total deduction of the amount of the collateral associated with the IPCs. Accordingly, the ECB did not comply with its obligations under Article 266 TFEU.
22 In that regard, the applicant submits that a comparison between, on the one hand, the decisions annulled by the Court in the 2020 judgments and, on the other hand, the contested decisions, shows that those decisions are based on essentially identical grounds.
23 Moreover, the ECB failed to carry out a specific examination of the applicant’s individual situation. In that regard, the applicant submits that the ECB sought to give the illusion of an individual examination, by referring to material which it stated in its replies of 29 April 2021 to the questionnaire sent to it by the ECB on 31 March 2021, and by formally increasing its statement of reasons for the contested decisions. However, the part of the contested decisions dealing with the quantification of the IPC risks is entirely standardised and is not based on considerations specific to the applicant, but on findings of a general nature, capable of applying to any credit institution opting for the off-balance-sheet treatment of IPCs.
24 The ECB disputes the applicant’s arguments.
25 In the present case, the applicant complains, in essence, that the ECB infringed not only Article 4(1)(f) and Article 16(1)(c) and (2)(d) of Regulation No 1024/2013, as clarified by the 2020 judgments, as well as Article 16(2)(j) of Regulation No 1024/2013, but also Article 266 TFEU on account of the alleged failure to comply with the interpretation of that regulation arising from those judgments. The ECB adopted a deduction measure again and did not actually carry out an individual examination.
26 Under the first paragraph of Article 266 TFEU, the institution whose act has been declared void is required to take the necessary measures to comply with the judgment annulling that act. Those rules provide for the sharing of powers between the judicial authority and the administrative authority, according to which it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling the act (see judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 55 and the case-law cited).
27 In that regard, in order to comply with a judgment annulling a measure and to implement it fully, the institution concerned is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27; of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 29; and of 13 September 2005, Recalde Langarica v Commission, T‑283/03, EU:T:2005:315, paragraph 50).
28 Article 266 TFEU requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (judgments of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 30, and of 13 September 2005, Recalde Langarica v Commission, T‑283/03, EU:T:2005:315, paragraph 51).
29 It must also be stated that Article 266 TFEU requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure (judgments of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 30, and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 57). The procedure for replacing an annulled measure can thus be resumed at the very point at which the illegality occurred (see judgment of 29 November 2007, Italy v Commission, C‑417/06 P, not published, EU:C:2007:733, paragraph 52 and the case-law cited; judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 58).
30 As a preliminary point, it should be noted that the ECB did not appeal against the 2020 judgments which had partially annulled its decisions referred to in those judgments. However, the decisions contested in the present case are not intended to replace the decisions that were annulled in the judgment of 9 September 2020, BNP Paribas v ECB (T‑150/18 and T‑345/18, EU:T:2020:394). Indeed, the ECB takes a decision each year under the SREP which enters into force on the date specified in that decision. On the same date, the previous year’s SREP decision is to cease to apply, unless the new SREP decision provides otherwise. Thus, in so far as the applicant alleges infringement of Article 266 TFEU, the present plea in law cannot succeed. However, it is necessary to assess whether the ECB exceeded its powers by adopting, in breach of Article 4(1)(f) and Article 16(1)(c) and (2)(d) and (j) of Regulation No 1024/2013, as clarified by the 2020 judgments, a deduction measure without actually having carried out an individual examination.
31 In that context, it should be borne in mind that Regulation No 1024/2013 established the single supervisory mechanism and seeks to ensure the safety and soundness of credit institutions That regulation confers competence on the ECB to carry out the prudential supervisory tasks referred to in Article 4(1) thereof. In accordance with Article 6 of that regulation, the ECB must carry out its tasks within the single supervisory mechanism composed of the ECB and national competent authorities. The ECB has competence, in particular, to ensure the prudential supervision of credit institutions in the euro area that are classified as ‘significant’. In that context, it evaluates the significant entities each year on the basis of the SREP, in order, inter alia, to determine ‘whether the arrangements, strategies, processes and mechanisms implemented by institutions and the own funds and liquidity held by them ensure a sound management and coverage of their risks’. The ECB therefore takes, as already noted in the preceding paragraph, each year, or at least at regular intervals, a decision under the SREP which enters into force on the date specified in that decision.
32 The fact that the ECB did not appeal against the 2020 judgments means that they have acquired the force of res judicata. Even though the ECB did not, strictly speaking, replace the annulled decisions with new SREP decisions for the year concerned by the cases, the fact remains that, in the new rounds of SREP decisions, in order to avoid the new decisions being vitiated by the same irregularities as those identified in the 2020 judgments, the ECB is required to respect the terms of the judgments of the Court (see, to that effect and by analogy, judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 27 and 29, and of 23 October 2008, People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 62).
33 It should also be recalled that, in the 2020 judgments, the Court held that:
– 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 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), a regulation containing requirements of general application, also being identified, in that context, as coming under the ‘first pillar’, did not preclude the identification of a risk which could be addressed by a measure adopted under Regulation No 1024/2013, that is within the framework of the ECB’s power under the ‘second pillar’;
– indeed, Article 16(1)(c) of Regulation No 1024/2013 provided that, for the purpose of carrying out the tasks referred to in Article 4(1) of Regulation No 1024/2013, the ECB was to have the powers, as set out in Article 16(2) thereof, to require any credit institution to take the necessary measures to address relevant problems in certain situations (judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraph 58);
– those situations included where, in the framework of a supervisory review carried out in accordance with Article 4(1)(f) of Regulation No 1024/2013, the ECB found that the arrangements, strategies, processes and mechanisms implemented by the credit institution and the own funds and liquidity held by it did not ensure a sound management and coverage of its risks (judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraph 58);
– Article 16(2)(d) of Regulation No 1024/2013 provided that the ECB had, inter alia, the power to require institutions to apply a specific provisioning policy or treatment of assets in terms of own funds requirements (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 49 to 60);
– the risk that the ECB identified in the cases in question (as in the present case) was the overstatement of CET 1 capital, a risk arising from the fact that the IPCs were treated as an off-balance-sheet item, that they were therefore not recorded as a liability on that credit institution’s balance sheet and that the guarantee attached to IPCs was unavailable until the IPCs had been paid (see, to that effect, judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraph 63);
– in view, in particular, of the importance of CET 1 capital for the financial soundness of institutions and, more generally, the stability of the financial sector, the existence of the risk identified by the ECB could not be denied (judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraph 67);
– the ECB was entitled to take the view, without erring in law in that regard, that the prudential treatment of IPCs, and therefore the guarantee which is inextricably linked to them, could give rise to the implementation of one of the measures provided for in Article 16(2)(d) of Regulation No 1024/2013, notwithstanding the fact that, for accounting purposes, IPCs as such were accounted for as off-balance-sheet items (judgment of 9 September 2020, BNP Paribas v ECB, T‑150/18 and T‑345/18, EU:T:2020:394, paragraph 70);
– however, given that the ECB did not carry out the individual examination of the applicants’ situation, as required by Article 4(1)(f) and Article 16(1)(c) and (2)(d) of Regulation No 1024/2013, those provisions had been infringed and the decisions contested in those cases were annulled to that extent (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 77 to 84).
34 Thus, it follows from this that the ECB may use its powers (under the ‘second pillar’), such as a deduction measure, if a number of conditions are met, namely if a credit institution is exposed to a risk and if that risk is not sufficiently covered. However, the finding that such a risk exists and the question whether or not that risk is covered requires an individual examination on a case-by-case basis.
35 In the 2020 judgments, the Court found that the decisions contested did not refer to any individual examination by the ECB aimed at verifying whether the applicants had implemented arrangements, strategies, processes and mechanisms within the meaning of Article 4(1)(f) and Article 16(1)(c) of Regulation No 1024/2013 in order to address the prudential risks associated with the treatment of IPCs as off-balance-sheet items and, where appropriate, satisfying themselves of their relevance in the light of such risks.
36 Accordingly, the Court held that it followed from the approach taken by the ECB that the latter had considered that, where an institution opted to use IPCs and to treat them as off-balance-sheet items, a risk arose, rendering unnecessary any further detailed examination of the situation specific to that institution.
37 Consequently, it must be found that, in the 2020 judgments, the Court annulled the decisions referred to it, because the ECB had not carried out the individual supervisory review of the applicants as required by Article 4(1)(f) and Article 16(1)(c) and (2)(d) of Regulation No 1024/2013.
38 The Court did not call into question the importance of CET 1 capital, the risk identified by the ECB in those decisions, namely the risk of overstating CET 1 capital, or the possibility of imposing a deduction measure.
39 Similarly, the fact that the ECB imposed, in the contested decisions, a deduction measure which was almost identical to that which had been imposed in the decisions annulled by the 2020 judgments does not mean that the ECB did not comply with those judgments or that it adopted a position of principle under the ‘first pillar’.
40 Indeed, the Court had not held that the measure was, as such, unlawful. On the contrary, it had held that the ECB had the power to impose such a measure. As to whether or not the measure imposed on the applicants in the aforementioned cases was justified, whereas the decisions contested in the 2020 judgments were annulled for lack of individual examination, the Court did not rule on that question. Accordingly, the applicant’s argument that, in the present case, the ECB failed to comply with the obligation to exclude any measure identical in content to that held to be unlawful cannot succeed.
41 Moreover, the Court had also accepted 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).
42 Furthermore, the fact that the risk identified in the contested decisions is the same as that identified in the decisions annulled by the 2020 judgments does not, in itself, imply that the ECB failed to comply with the guidance provided in those judgments.
43 It is, therefore, necessary to ascertain whether the ECB carried out an individual examination of the applicant’s situation in the present case.
44 In that regard, it should be noted that, following the annulment of the decisions which were the subject of the 2020 judgments, the ECB developed a methodology for carrying out, in the context of its SREP assessment for subsequent years, a more specific examination of the situation of the credit institution giving IPCs.
45 In the present case, the examination was carried out in accordance with that methodology of the ECB and consists in a questionnaire which resulted in the ECB examining – having regard to the replies of the institutions subject to prudential supervision and contributing to the financing of the Single Resolution Fund (SRF) and to the deposit guarantee schemes by giving IPCs – whether those institutions were exposed to the risk of overstating CET 1 capital and, if so, whether that risk was covered.
46 To that end, the questions asked concerned the amounts of the IPCs given, the collateral provided, the accounting and prudential treatment of the IPCs and collateral, and possible scenarios for the collateral being retrieved or the IPCs being called, including the relationship between those scenarios. Furthermore, in order to assess the arrangements, strategies, processes and mechanisms implemented by the credit institution concerned to manage the risk, and the own funds and liquidity held to cover it, the ECB requested further information on, for example, accounting and prudential treatment, risk mitigants, capital and liquidity measures, and any other measures employed in order to mitigate the risk of overstating CET1 capital.
47 In the first stage of the use of powers under Articles 16(1)(c) and 16(2)(d) of Regulation No 1024/2013, the ECB determined whether the applicant faced a risk of an overstatement of the CET1 capital and, in the second stage, examined the applicant’s individual situation, in order to determine whether the arrangements, strategies, processes and mechanisms implemented by it, and the own funds and liquidity it held, ensured a sound management and coverage of the risk of overstatement of the CET1 capital.
48 Thus, after the risk quantification exercise, the ECB assessed, as part of the second stage, whether the CET 1 own funds held by the applicant ensured a sound management and coverage of the risk of overstatement of CET 1 capital and followed a five-step approach.
49 First, the ECB assessed whether the applicant covered any part of the risk of CET 1 overstatement by CET 1 own funds that it was already required to hold under the applicable capital framework and that could be counted towards covering that risk. Second, the ECB assessed whether the level of CET 1 capital held by the applicant in excess of the total capital requirements applicable to it was likely to cover the risk of overstating CET 1 capital. Third, the ECB assessed whether a positive economic value could be assigned to collateral used to secure the IPCs from a prudential perspective and could thus decrease the impact of giving the IPCs and providing collateral to secure them on the risk-bearing capacity of CET 1 capital. Fourth, the ECB assessed whether there were deferred tax assets or liabilities that might reduce the risk of overstatement of the CET 1 capital and, fifth, the ECB assessed whether there were any other specific circumstances or measures employed by the applicant in order to mitigate the risk of overstatement of the CET 1 capital.
50 After the examination of own funds described above, the ECB assessed whether the liquidity held by the applicant ensured a sound management and coverage of the risk identified.
51 In addition, the ECB assessed whether, and if so how, the arrangements, strategies, processes and mechanisms implemented by the applicant ensured a sound management and coverage of the risk of overstatement of the CET 1 capital.
52 The ECB ultimately concluded that the arrangements, strategies, processes and mechanisms implemented, and the own funds and liquidity held by the applicant, did not ensure a sound management and coverage of the risk identified, which justified the deduction measure.
53 It must be held that, accordingly, the ECB took into account the relevant factors, as referred to in Article 4(1)(f) and Article 16(1)(c) of Regulation No 1024/2013, and that it carried out an individual examination of the applicant’s situation.
54 In addition, the Court must reject the applicant’s argument that the ECB failed to adduce evidence of a risk specific to it in so far as the risk identified is ‘specific’ to all the institutions using IPCs, such that, in fact, the exercise carried out by the ECB is merely a façade intended to create a rule of general application.
55 In the first place, it should be noted that, contrary to what the applicant claims, the ECB did indeed identify a risk specific to it. In its task of prudential supervision, the ECB took into account, as a starting point, the accounting treatment applied by the applicant, as a factual element, among others, in order to determine whether, and if so how, the applicant managed and covered the prudential risks which it faced as a result of giving IPCs and providing collateral.
56 Thus, the ECB found that the applicant had opted for a combined accounting treatment, consisting in treating the IPCs as off-balance-sheet items, while entering the sums put up as collateral as an asset on its balance sheet, at their full nominal value, in the form of a claim for repayment. Such a choice meant, for the ECB, that the contribution to the financing of the resolution funds and deposit guarantee funds was not reflected in the balance sheet, resulting in a risk of overstatement of the CET 1 capital.
57 In the second place, it must be held that the ECB did not create any rule of general application, since the accounting treatment of IPCs and the associated collateral are specific to each institution and the applicable accounting rules leave a certain margin, or even a certain choice, enjoyed by the applicant.
58 In that regard, as the ECB argued, several choices are possible, either in order to avoid the aforementioned risk or to address it by other means, which, moreover, can be determined only on the basis of an individual examination.
59 Thus, it is possible to include the payment commitment in 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 in 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 for repayment against the SRF. Such accounting treatment does not result in a decrease in CET 1 capital, although the collateral is not available to the institution concerned. Similarly, from the point of view of prudential treatment, it is possible to make a voluntary reduction under Article 3 of Regulation No 575/2013 or else 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 CET 1 capital.
60 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 partial deduction, total deduction or even no deduction at all, depending on the institutions concerned.
61 Accordingly, it follows from the foregoing that the first plea in law must be rejected.
Second plea in law, alleging a manifest error of assessment and an infringement of the principle of sound administration.
62 The applicant complains that the ECB infringed the principle of sound administration and adopted a decision of principle which does not actually take account of the specific situation of the institution, in particular in terms of prudential safety and of liquidity, and, in so doing, committed a manifest error of assessment of the prudential treatment applicable to IPCs. In excluding ‘precautionary buffers’ in order to assess whether the applicant was in a position to respond to the potential IPC risk, the ECB committed a manifest error of assessment. Similarly, by taking the view that the risk associated with liquidity was inherently linked to the off-balance-sheet accounting of the IPCs and that no alternative to the deduction measure – in particular a requirement for additional liquidity – could address that, the ECB adopted a position of principle without having assessed the existence of a risk for the applicant. The applicant also submits that the ECB reversed the burden of proof and did not take into account the replies to the questionnaire, since they did not influence its final position.
63 The ECB states that the applicant’s arguments are based on the risk in the event of the IPCs being called, whereas the risk which it identified was that of the overstatement of the applicant’s CET 1 capital. It also considers that it correctly assessed the applicant’s capital adequacy and liquidity adequacy in the light of the risk identified.
64 In the present case, it is apparent from the applicant’s written pleadings that it complains that the ECB infringed the principle of sound administration by relying on abstract reasoning and on risks whose credibility was not examined. In the applicant’s view, the ECB failed to examine whether or not the call on the IPCs was capable of placing the applicant in a fragile situation and it adopted a general and stereotyped statement of reasons.
65 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 own 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).
66 In that regard, it is settled case-law that the Courts of the European Union must, inter alia, 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 judgment of 4 May 2023, ECB v Crédit lyonnais, C‑389/21 P, EU:C:2023:368, paragraph 56 and the case-law cited).
67 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).
68 It should be recalled that 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, and 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 the applicant. Moreover, the applicant has at no point, in its written pleadings, disputed the unavailability of those sums or the risk identified as such. Although the risk identified is related to the giving of the IPCs, the risk of overstating CET 1 capital is a different risk to that of the IPCs being called. 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.
69 It follows that the ECB was not required to examine whether the applicant was in a position to bear the risk of being called upon to pay the IPCs. Accordingly, the applicant’s complaint, under the principle of sound administration, that the ECB failed to examine whether its individual situation ensured coverage of a risk different from that identified by the ECB is ineffective.
70 The arguments that the ECB reversed the burden of proof and did not take into account the evidence declared by the applicant in the questionnaire must also be rejected.
71 Admittedly, it is for the ECB to demonstrate the existence of a risk. However, it can only do so on the basis of specific information ‘particular’ to each credit institution. For that reason, a detailed questionnaire was sent out in order to obtain the information necessary to assess the applicant’s individual situation. Indeed, the questionnaire falls within the scope of the duty to cooperate laid down in 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). Article 28(3) provides that the applicant, in an ECB supervisory procedure, like the present case, is required to assist the ECB in order to clarify the facts. The questionnaire did not, therefore, have the effect of relieving the ECB of the need to carry out an individual examination or of reversing the burden of proof. On the contrary, on the basis of the information received, the ECB carried out its analysis, identified the risk and came to the conclusion, as regards the applicant, that that risk was not covered, thereby giving grounds for the deduction measure and the reporting requirement.
72 As regards the reporting requirement, it must be stated that such a measure is possible on the basis of Article 16(2)(j) of Regulation No 1024/2013. The fact that the information must be provided using the template COREP C 01.00, line 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 (EU) No 575/2013 with regard to supervisory reporting of institutions and repealing Implementing Regulation (EU) No 680/2014 (OJ 2021 L 97, p. 1) – does not support the conclusion, contrary to what the applicant claims, that it is a ‘first pillar’ measure. As is apparent from the contested decisions, the use of that annex is attributable to the fact that that implementing regulation does not, at this stage, provide for a specific point for reporting information pursuant to requirements imposed by the ECB in the exercise of the power referred to in Article 16(2)(d) of Regulation No 1024/2013.
73 As regards the argument that the ECB committed a manifest error of assessment in that it denied the importance of ‘precautionary buffers’ in assessing whether the applicant was in a position to respond to the risk to which it might be exposed, as a result of giving the IPCs and their off-balance-sheet treatment, it should be noted that the ECB did examine that aspect. It concluded that those buffers, that is to say the capital held by the applicant beyond the minimum regulatory requirements and the ‘second pillar’ capital guidance, could not be regarded as capital intended to cover the risk of overstated CET 1. In that regard, as is apparent from the contested decisions, and is not disputed by the applicant, the applicant remains free to use ‘precautionary buffers’ for any risk and not specifically for the IPC risk. Similarly, it remains free to distribute ‘precautionary buffers’, through authorised distributions of profit, at any time before the risk materialises, unless the ECB requests a deduction or prohibits profit distributions. In addition, the applicant did not refer to any legally binding commitment preventing it from freely disposing of its ‘precautionary buffer’ for purposes other than covering the IPC risk. Furthermore, it should be noted, as the ECB has observed, that the applicant appears to confuse the risk of overstatement with its potential consequences. The risk of overstating CET 1 capital consists in a potential overvaluation of CET 1 capital having regard to the actual capacity to absorb the applicant’s losses, which could enable it to enter into exposures not covered by own funds. Although ‘precautionary buffers’ composed of CET 1 capital may cover losses resulting from those exposures, they do not cover the risk of overstatement of CET 1 capital itself.
74 The applicant’s argument relating to the ‘precautionary buffers’ and the claim that the ECB failed to take them into account cannot, therefore, succeed.
75 Similarly, the complaint concerning liquidity cannot succeed. According to the applicant, the ECB adopted a position of principle without having assessed the existence of a risk to it. In the applicant’s estimation, the ECB took the view that the liquidity-associated risk was inherently linked to the off-balance-sheet accounting of IPCs and that no alternative to the deduction measure – in particular an additional liquidity requirement – could address it.
76 In that regard, it should be noted that the ECB considered, in the contested decisions, that the liquidity held by the applicant was not relevant for the sound management and coverage of the IPC risk. Indeed, it noted, as is apparent from point 3.10.4 of the decision of 2 February 2022 and from point 3.9.4 of the decision of 21 December 2022, that, if the IPCs were to be called, either the relevant supervised entities would deliver cash against the counterbalancing receipt of the collateral, or the SRF, national resolution funds or the deposit guarantee scheme would directly seize the collateral. There would be no impact in either case on the net liquidity of the credit institution. In any event, the outflow of liquidity would already have occurred when the collateral was initially contributed and the liquidity risk would, therefore, already have been realised in the past and this would be reflected in the treatment of the liquidity risk management of the collateral by the relevant supervised entities.
77 It must be found that the assessment that, since the collateral had already been contributed, the consequences of that transaction on the liquidity had already been taken into account by the applicant and the impact on the liquidity ratios had already materialised, is not irrelevant. Furthermore, it is also apparent from the applicant’s written pleadings that it accepts that the fact that the IPCs are covered by collateral in the form of a cash deposit means that cash outflows have already taken place and that the collateral contributed will not therefore give rise to additional outflows on the part of the applicant in respect of the IPCs.
78 The ECB also assessed whether holding additional liquidity would mitigate the abovementioned concerns about IPC risks.
79 In that regard, the ECB concluded in the contested decisions, on the basis of the information provided by the applicant, that additional liquidity did not cover the risk of overstated CET 1. Holding additional liquidity would affect the risk to capital indirectly as liquidity is usually assigned a low-risk weight. However, those benefits are already captured automatically in the applicant’s systems that determine risk-weighted assets. Reflecting that effect also in the calculation of the deduction for IPC risk would double count the benefits obtained from holding additional liquidity.
80 In view of the risk identified, that reasoning is free from error.
81 The fact that that reasoning also applies to other credit institutions that give IPCs does not mean that the ECB failed to carry out an examination of the applicant’s individual situation and that it adopted a general and stereotyped statement of reasons, in breach of the principle of sound administration.
82 It follows from the foregoing that the second plea in law must be rejected.
The third plea in law, alleging an error of law resulting from the deprivation of effectiveness of the legislation governing the use of IPCs
83 The applicant submits that the contested decisions deprive IPCs of any practical effect.
84 In the first place, the differentiated accounting and prudential treatment of IPCs (which do not give rise to charges being entered in the accounts) as compared with direct cash contributions (which give rise to charges being entered in the accounts) is consistent with the legislature’s objective of preserving the ability of contributing institutions to finance the real economy. By imposing undifferentiated prudential treatment between IPCs and cash contributions, the contested decisions threaten the balance struck by the legislature between the financing of resolution funds and deposit guarantee schemes, on the one hand, and the financing of the real economy, on the other hand, and ignore the difference in nature between those two categories of contribution.
85 In the second place, the deduction measure runs counter to the objectives of flexibility, speed and effectiveness pursued by the legislature, as is apparent from the history of the texts on which the Banking Union was founded and from reading the parliamentary debates, since it makes the introduction of ex ante contributions to resolution funds and deposit guarantee schemes more restrictive.
86 The ECB disputes the applicant’s arguments.
87 In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only the wording of that provision but also the context in which it occurs and the objective pursued by the rules of which it is part (judgment of 26 January 2012, ADV Allround, C‑218/10, EU:C:2012:35, paragraph 26; see also judgment of 19 July 2012, A, C‑33/11, EU:C:2012:482, paragraph 27 and the case-law cited).
88 The fact that IPCs may, alongside the ex ante cash contributions, be used to contribute to resolution funds and deposit guarantee schemes is not open to debate, given the clear wording of:
– Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1);
– Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190);
– Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ 2014 L 173, p. 149).
89 In that regard, Article 70(3) of Regulation No 806/2014 states that ‘the available financial means to be taken into account in order to reach the target level specified in Article 69 may include [IPCs] which are fully backed by collateral of low-risk assets unencumbered by any third-party rights, at the free disposal of and earmarked for the exclusive use by the Board for the purposes specified in Article 76(1)’ and that ‘the share of those [IPCs] shall not exceed 30% of the total amount of contributions raised in accordance with this Article’. The wording of Article 103(3) of Directive 2014/59 is identical, as regards its content, to that of Article 70(3) of the aforementioned regulation. Last, as regards deposit guarantee schemes, Article 10(3) of Directive 2014/49 also provides for the possibility of contributing through IPCs.
90 However, it should be noted that the abovementioned provisions do not address and are not intended to govern the accounting and prudential treatment of IPCs.
91 The issue of the effectiveness of the relevant provisions thus concerns the relationship between the legislation establishing resolution funds and deposit guarantee schemes and authorising the use of IPCs as a contribution to them, with Regulation No 575/2013 and Regulation No 1024/2013, which respectively laid down prudential requirements and established the single supervisory mechanism. The question is, therefore, whether the application of Regulation No 575/2013 and Regulation No 1024/2013 may have the effect of depriving certain provisions of Regulation No 806/2014, including Article 70(3) thereof, of their effectiveness. The same applies in relation to Directive 2014/59 and, in particular, Article 103(3) thereof, and in relation to Directive 2014/49, including Article 10(3) thereof.
92 In that regard, it cannot be concluded that the legislature wished the use of IPCs to enable institutions giving IPCs to take risks not covered by own funds.
93 Such an interpretation would contradict the stricter measures taken in response to the 2008 financial crisis, which triggered a strengthening of the regulatory framework and prudential supervision. It is in that context that resolution mechanisms were also introduced with a view to preventing the harmful consequences of bank failures that occurred in the past and dealing with them more effectively in the future.
94 In that regard, it has already been held, in the context of the first and second pleas in law, that the ECB was entitled to conclude, on the basis of the individual examination, that the applicant ran a risk of overstating CET 1 capital, which was the result of the manner in which the applicant accounted for the IPCs and the associated guarantee, and implying that it could finance activities which were not covered by its own funds.
95 Furthermore, the citations made of the recitals forming part of the texts on which the Banking Union was based or the parliamentary debates relied on by the applicant in its written pleadings are not convincing. Admittedly, they show that the legislature attempted to strike a certain balance between, on the one hand, the requirements necessary for a sound banking union and, on the other hand, the scope for manoeuvre left to banks in their commercial activities. However, the recitals relied on by the applicant are general in scope and are not directed at IPCs. Moreover, the passages which the applicant cites are selective and incomplete and no conclusions can be drawn from them as to the accounting treatment and any prudential consequences.
96 By way of example, the applicant’s reference to recital 18 of Regulation No 1024/2013, in order to support its arguments in the context of the present plea in law and in particular those relating to accounting treatment, is irrelevant since the extract cited from that recital does not reflect its entirety. Admittedly, it is apparent from the sentence cited that the ECB must take account of the relevant macroeconomic conditions in Member States, in particular the stability of the supply of credit and facilitation of productive activities for the economy at large. However, the preceding sentence of that recital, for its part, states that, in carrying out its tasks, the ECB must, avoid ‘moral hazard and the excessive risk taking [by credit institutions] arising from it’.
97 As it is, the fact that the ECB, in carrying out its tasks, is required to take account of the relevant macroeconomic conditions does not mean that it is precluded from taking corrective measures at the individual level if this is necessary from a prudential perspective.
98 Similarly, as regards the reference to recital 15 of a version of the proposal for an implementing regulation concerning Regulation No 806/2014 (now Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation No 806/2014 with regard to ex ante contributions to the SRF (OJ 2015 L 15, p. 1), cited by the applicant in its written pleadings, it must be stated that that reference is irrelevant. Indeed, its content was not reproduced in the final version of the implementing regulation, which suggests that the legislature did not consider it appropriate.
99 Furthermore, as regards the argument that undifferentiated treatment would nullify the effectiveness of IPCs, it is apparent from the decisions taken by the ECB referred to in paragraph 60 above that other banking institutions, who have also given IPCs, have provided for a different accounting treatment of their IPCs and of sums put up as collateral, which did not pose any problem from a prudential perspective. Moreover, that tends to show that IPCs are not without interest for the latter.
100 In that regard, irrespective of the accounting treatment of IPCs, it should be noted that the sums put up as collateral with the resolution fund or the deposit guarantee scheme produce interest for the benefit of the institutions giving the IPCs, which constitutes an advantage over a cash contribution.
101 In addition, the absence of any provision in Regulation No 575/2013 expressly providing for a specific accounting and prudential treatment of IPCs tends to reinforce the foregoing conclusions.
102 Furthermore, the fact that, with the introduction of the IPC instrument, the legislature did not intend to grant a preferential advantage to entities giving IPCs, also tends to emerge from the opinion expressed by the European Banking Authority (EBA).
103 In that regard, the EBA took the view, as is apparent from its replies to the comments made in the context of the consultation carried out in respect of the draft EBA guidelines on IPCs under Directive 2014/49, that neither the recitals nor the articles of Directive 2014/49 provided that the purpose pursued by the EU legislature, when introducing IPCs, was to grant credit institutions preferable accounting treatment. Furthermore, according to the EBA, unlike direct cash contributions, institutions giving IPCs may benefit from those commitments by retaining the proceeds from the sums delivered as collateral. In addition, in the EBA’s view, IPCs offer credit institutions preferable liquidity treatment (reflected in the cash flow statement).
104 Although the EBA’s interpretation is not binding, in the present case it may be relevant to take it into account since the EBA is a source of reference in the field of the Banking Union.
105 Furthermore, the guidelines on IPCs drawn up by the EBA pursuant to the second subparagraph of Article 10(3) of Directive 2014/49 and Article 16 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing an EBA, amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12), also confirm that the accounting treatment of IPCs and of the sums put up as collateral may lead to prudential measures being taken.
106 The interpretation advocated by the applicant must, therefore, be rejected, as must, consequently, the third plea in law in its entirety.
The fourth plea in law, alleging an infringement of the principle of proportionality
107 First of all, the applicant states that the potential risk posed by IPCs can materialise only in the event of their being called and that that risk, the occurrence of which is hypothetical, because the probability of being called upon to pay IPCs is low, is, in any event, covered through the correct application of prudential requirements, such as risk-weighted assets. It follows that the ECB failed to take account of the applicant’s specific situation, that the deduction measure is unjustified and, on that ground alone, infringes the principle of proportionality.
108 Next, the applicant states that the ECB rejected any alternative measure to the deduction measure, in accordance with a position of principle, on the pretext that, without deduction, the amount of CET 1 capital communicated to market participants would not reflect the actual capacity to absorb losses.
109 The applicant therefore submits that the imposition of the deduction measure, which has negative effects on it, is manifestly inappropriate and disproportionate to the stated objective of obtaining, for the purposes of supervision, adequate information on the risks.
110 Last, the applicant submits that the ECB acknowledged, in the context of the replies to the observations that it submitted, that the applicant’s capital adequacy, assessed at ‘medium-low risk’ in the present case, was an irrelevant parameter. The applicant concludes from that that the ECB therefore accepts that even an institution with an adequate capital situation would have the same deduction measure applied to it, which is in total contradiction with the principle of proportionality.
111 The ECB disputes the applicant’s arguments.
112 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 must not 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.
113 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).
114 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).
115 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.
116 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.
117 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.
118 It must be held that the examination conducted by the ECB of the proportionality of the deduction measure was structured and carried out correctly. That examination is not vitiated by illegality and is free of error. Moreover, the ECB’s reasoning is not called into question by the arguments put forward by the applicant.
119 In the first place, the argument that the materialisation of a call on the IPCs remains very hypothetical is not relevant in the light of the risk identified.
120 In the second place, the applicant cannot, from the fact that the ECB examined and subsequently rejected alternative measures to the deduction measure, draw the conclusion that the measure imposed was inappropriate and disproportionate for obtaining information on risks. In any event, the applicant has failed to explain why the ECB’s reasoning, in that regard, is erroneous. In addition, the deduction measure is intended to address the loss of economic resources which has already occurred, the communication to the market or supervisors of the exact level of capacity to absorb the applicant’s CET 1 losses being only an indirect consequence of the measure imposed, not an aim in itself.
121 In the third place, the fact that the capital adequacy gave rise to an assessment as ‘medium-low risk’ does not mean that the deduction measure imposed is disproportionate and, in any event, it should be noted that that classification does not address the risk of overstatement identified.
122 It follows from the foregoing that the fourth plea in law must be rejected and, consequently, that the action must be dismissed in its entirety.
Costs
123 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to 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 the action;
2. Orders BNP Paribas to pay the costs.
Schalin | Škvařilová-Pelzl | Nõmm |
Delivered in open court in Luxembourg on 5 June 2024.
[Signatures]