Provisional text
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
10 July 2024 (*)
(Economic and Monetary Union – Banking Union – Single Resolution Mechanism for credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Decision of the SRB on the calculation of the 2021 ex ante contributions – Duty to state reasons – Equal treatment – Proportionality – SRB’s discretion – Manifest error of assessment – Plea of illegality – Commission’s discretion – Limitation of temporal effects of the judgment)
In Case T‑403/21,
Norddeutsche Landesbank – Girozentrale, established in Hanover (Germany), represented by J. Seitz and C. Marx, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by J. Kerlin, T. Wittenberg and C. De Falco, acting as Agents, and by G. Coppo, S. Reinart and K. Bongs, lawyers,
defendant,
supported by
European Commission, represented by D. Triantafyllou and A. Steiblytė, acting as Agents,
intervener,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of A. Kornezov, President, G. De Baere, D. Petrlík (Rapporteur), K. Kecsmár and S. Kingston, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 8 March 2023,
gives the following
Judgment (1)
1 By its action under Article 263 TFEU, the applicant, Norddeutsche Landesbank – Girozentrale, seeks the annulment of Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund (‘the contested decision’), in so far as that decision concerns the applicant as the legal successor to Deutsche Hypothekenbank AG (‘Deutsche Hypo’).
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III. Forms of order sought
20 The applicant claims that the Court should:
– annul the contested decision, including the annexes thereto, in so far as that decision concerns the applicant as the legal successor to Deutsche Hypo;
– order the SRB to pay the costs.
21 The SRB claims, in essence, that the Court should:
– dismiss the action;
– order the applicant to pay the costs;
– in the alternative, if the contested decision is annulled, maintain the effects of that decision until it is replaced or, at the very least, for a period of six months from the date on which the judgment becomes final.
22 The European Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
IV. Law
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A. The pleas of illegality in respect of Article 7 of, and Annex I to Delegated Regulation 2015/63
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3. The eleventh plea in law, alleging that ‘Step 2’ in Annex I to Delegated Regulation 2015/63 is unlawful in so far as the binning method provided for therein disregards higher-ranking rules of law
101 The applicant claims that ‘Step 2’ in Annex I to Delegated Regulation 2015/63 is unlawful, in that the binning method provided for therein disregards the ‘principle of orientation towards the risk profile’ under Article 103(7) of Directive 2014/59.
102 In particular, the binning method provides that the bins must include, if possible, the same number of institutions divided according to the risk value of each of them. Such a method incorrectly reflects the individual risk profile of the institutions concerned. That method could lead to the grouping, in the same bin, of institutions with values for the risk indicator at issue showing different risk profiles from each other. For example, in the case of Deutsche Hypo, that would have led, for the risk indicator [confidential], (2) to its assignment in [confidential] bins despite a value, declared under that indicator, lower than the average value of all institutions.
103 The SRB and the Commission dispute that line of argument.
104 As has been stated in paragraph 66 above, it is not necessary to rule on whether there is, in EU law, a ‘principle of orientation towards the risk profile’. The applicant submits by that plea, as clarified at the hearing, that the Commission made an error of assessment when it provided the binning method, since that method prevents the SRB from making appropriate adjustments to the basic annual contributions in line with the institutions’ actual risk profile.
105 In that regard, it is apparent from paragraphs 47 to 53 above that the Commission enjoys broad discretion as regards the implementation of Article 103(7) of Directive 2014/59, with the result that it is for the applicant to demonstrate that, by providing the binning method, Delegated Regulation 2015/63 is vitiated by a manifest error of assessment.
106 In accordance with that method, it is for the SRB to determine, initially, a number of bins with a view to comparing the institutions in the light of the various risk indicators and sub-indicators. Subsequently, the SRB is to assign, in principle, the same number of institutions to each bin, starting by assigning institutions with the lowest values of the raw indicator to the first bin. Finally, the SRB is to assign all of the institutions in a particular bin the same score, referred to as the ‘discretised indicator’, which it must take into account for the remainder of the calculation of their risk adjusting multiplier.
107 Admittedly, it cannot be ruled out, as is clear from Annex II to the contested decision, that the application of that method may lead, in practice, to situations in which institutions which, for a given risk indicator, have values that show that they have less risky profiles for that indicator than the average value of the institutions concerned are nevertheless assigned, for the indicator at issue, to one of the bins which are composed of relatively riskier institutions. That consequence follows, inter alia, from the fact that, as the SRB explained, certain institutions have ‘extreme’ values, that is to say, values representing a significant departure from the average.
108 Similarly, on account of the existence of those extreme values, it cannot be ruled out that the application of the binning method – and, in particular, the application of the rule laid down in point 3 of ‘Step 2’ in Annex I to Delegated Regulation 2015/63, according to which the SRB is to assign, in principle, the same number of institutions to each bin – may result, in actual fact, in situations in which institutions with values for a particular risk indicator that are close to those of institutions assigned to the preceding bin are however assigned to the next bin, containing institutions with values for that same risk indicator which might sometimes be considerably higher.
109 However, the occurrence of the phenomena described in paragraphs 107 and 108 above does not mean that the binning method is vitiated by a manifest error of assessment.
110 In that regard, in the first place, it should be recalled that Delegated Regulation 2015/63 laid down, in accordance with Article 103(7) of Directive 2014/59, a method for adjusting ex ante contributions to the risk profile of institutions which is based on a comparison of their risk profiles. It is established, first, that such a method means comparing a significant amount of data from the institutions concerned on the basis of values which those institutions obtain for a series of risk indicators and, second, that those data may include extreme values for certain institutions.
111 As is apparent from the empirical study conducted prior to the adoption of Delegated Regulation 2015/63, the results of which were summarised in the JRC technical study, the binning method is one of the methods which may enable such a comparison to be made and is even considered to be the most appropriate method for that purpose.
112 The binning method is a recognised statistical method for the purposes of treating extreme values, since it avoids, as far as possible, the presence of those values leading to distorted comparisons. In the present case, that method makes it possible to avoid, as is apparent from the JRC technical study, institutions with high values for certain risk indicators nevertheless receiving a score which indicates a low risk profile for those indicators, since there are certain institutions with extreme values.
113 In the second place, the binning method is an easy method to compare a large amount of data reported by institutions whose ex ante contribution is adjusted to their risk profile.
114 In that regard, it should be noted that point 2 of ‘Step 2’ in Annex I to Delegated Regulation 2015/63 lays down the rule that the number of bins is to be calculated on the basis of a formula set out therein. Next, point 3 of ‘Step 2’ in Annex I to that delegated regulation lays down the rule that the SRB assigns, in principle, the same number of institutions to each bin, starting by assigning institutions with the lowest values of the raw indicator to the first bin.
115 It follows that the binning method lays down objective rules that are capable of being easily applied by the SRB, which is, moreover, an objective that may legitimately be pursued by the EU rules (see, to that effect, judgments of 24 February 2015, Sopora, C‑512/13, EU:C:2015:108, paragraph 33, and of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 60).
116 In the third place, the consequences of the occurrence of the phenomena described in paragraphs 107 and 108 above are qualified by the following four circumstances. First, that the ex ante contributions can be adjusted only within the range of a coefficient of between 0.8 and 1.5, pursuant to Article 9(3) of Delegated Regulation 2015/63. The basic annual contribution thus remains the primary factor in determining the ex ante contribution having regard to the risk profile of the institutions.
117 Second, as is clear, in essence, from the JRC technical study, those phenomena are limited because they tend to occur primarily in the last bins, and not in the vast majority of the bins.
118 Third, it remains established that the institutions in those last bins have higher values for the risk indicator concerned than the institutions assigned to the lower bins.
119 Fourth, the method of adjusting the ex ante contributions to the risk profile takes into account a multitude of risk indicators, as is apparent from Article 6 of Delegated Regulation 2015/63. An institution is thus assigned, ultimately, to a multitude of bins according to its values and those of the other institutions for each risk indicator.
120 As is apparent from the JRC technical study, institutions tend to be placed in other bins for different risk indicators. Accordingly, if an institution is in the last bin for a particular risk indicator, and is thus placed on an equal footing with institutions with considerably higher values, that is generally not the case for other risk indicators, thus allowing for a comprehensive comparison of the institutions concerned to be made.
121 Moreover, the phenomenon described in paragraphs 119 and 120 above is illustrated by the calculation of Deutsche Hypo’s ex ante contribution for the 2021 contribution period, as shown by its individual sheet. As regards the part of its ex ante contribution calculated on a national basis, Deutsche Hypo is in the [confidential] bin for [confidential]. However, for none of the [confidential] indicators, does it find itself in the [confidential] bin, while [confidential]. Moreover, it finds itself in the [confidential] bin for [confidential].
122 In those circumstances, the applicant cannot claim that, by introducing the binning method, Delegated Regulation 2015/63 is vitiated by a manifest error of assessment.
123 That finding is not called into question by the applicant’s arguments that Delegated Regulation 2015/63 should have provided for three corrections to the binning method. First, it should have left it open to the SRB to establish additional and therefore narrower bins or to allow it to assign a different number of institutions to each bin. Second, in the context of the binning method for risk pillar III, other risk indicators should have been taken into account, such as the size of the institution, its balance sheet total or its individual business model. Third, since the business model of institutions is decisively influenced by the national legal framework, a distinction should have been made by Member State in the context of the ‘stability and variety of sources of funding’ risk pillar provided for in Article 6(1)(b) of Delegated Regulation 2015/63 (‘risk pillar II’) and risk pillar IV.
124 By the arguments referred to in paragraph 123 above, the applicant thus maintains, in reality, that there are alternative methods to the binning method, as provided for in Delegated Regulation 2015/63, which are more appropriate than that method, rather than demonstrating that that method is vitiated by manifest errors of assessment. However, even if such alternative methods exist, it is apparent from the case-law that it is not for the Court to determine whether the binning method provided for by Delegated Regulation 2015/63 is the only or the best possible method, but whether it is vitiated by a manifest error of assessment (see, to that effect and by analogy, judgment of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 83).
125 In addition, and in any event, the applicant has not established that the elements mentioned in paragraph 123 above would have made it possible to take better account of the actual risk profile of the institutions in the context of the binning method.
126 First, as regards, the argument based on the establishment of additional bins, suffice it to note that point 2 of ‘Step 2’ in Annex I to Delegated Regulation 2015/63 determines the number of bins on the basis of a mathematical formula which applies objectively and without distinction and which, as is apparent from the JRC technical study, relies on scientific statistical data aimed at fixing in advance the appropriate number of bins. The applicant has not made any specific criticism of that formula. Nor has it demonstrated that the establishment of additional bins on a case-by-case basis would be manifestly more appropriate than the method chosen.
127 Second, as regards the applicant’s argument relating to the alleged need to take into account certain additional risk indicators, it has already been noted in paragraph 116 above that the method for calculating ex ante contributions attaches considerable importance to the basic annual contribution, given that that contribution also reflects the size of the institutions.
128 Similarly, the applicant wrongly claims that the Commission should have taken greater account of the individual business model of the institutions. In that regard, it is apparent from Article 6(6) of Delegated Regulation 2015/63 that the SRB is required to take it into account through the risk indicator ‘trading activities, off-balance-sheet exposures, derivatives, complexity and resolvability’. However, the applicant does not provide any specific evidence relating to the individual business model of the institutions which the Commission should have taken into account.
129 Third, as regards the argument based on the alleged need to distinguish between each Member State in the context of risk pillars II and IV, it is clear from the case-law that the adoption of rules in a particular field of action may, without being discriminatory, have different repercussions for certain economic operators with regard to their individual situation or the national rules to which they are subject, provided that those rules are based on objective criteria which are adapted to the aims pursued by those rules (see, to that effect and by analogy, judgment of 19 September 2013, Panellinios Syndesmos Viomichanion Metapoiisis Kapnou, C‑373/11, EU:C:2013:567, paragraph 34 and the case-law cited).
130 In the present case, the applicant has not submitted to the Court any evidence that would suggest that the risk indicators covered by risk pillars II and IV are not based on such objective criteria or that they have not been adapted to the aims pursued by Delegated Regulation 2015/63. In those circumstances, it cannot rely on alleged differences between the Member States in order to demonstrate a manifest error of assessment concerning those risk pillars.
131 In the light of the foregoing, the eleventh plea must be rejected.
B. The pleas relating to the legality of the contested decision
1. The statement of reasons for the annual target level
132 As a preliminary point, it should be noted that an absence of or an inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited).
133 By a measure of organisation of procedure and at the hearing, the Court asked the parties of its own motion about possible failures to state reasons which would vitiate the contested decision as regards the determination of the annual target level.
134 In order to examine whether the contested decision is vitiated by such a failure, it should be recalled that, in accordance with Article 69(1) of Regulation No 806/2014, by the end of the initial period of eight years from 1 January 2016 (‘the initial period’), the available financial means in the SRF must reach the final target level, which corresponds to at least 1% of the amount of covered deposits of all institutions authorised in all of the participating Member States (‘the final target level’).
135 Under Article 69(2) of Regulation No 806/2014, during the initial period, the ex ante contributions must be spread out in time as evenly as possible until the final target level mentioned in paragraph 134 above is reached, but with due account taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.
136 Article 70(2) of Regulation No 806/2014 states that, each year, the contributions due by all of the institutions authorised in the territories of all of the participating Member States are not to exceed 12.5% of the final target level.
137 In relation to the method of calculating the ex ante contributions, Article 4(2) of Delegated Regulation 2015/63 provides that the SRB is to determine their amount on the basis of the annual target level, taking into account the final target level, and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, for all of the institutions authorised in the territories of all of the participating Member States.
138 In the present case, as is apparent from recital 48 of the contested decision, the SRB set the amount of the annual target level for the 2021 contribution period at EUR 11 287 677 212.56.
139 In recitals 36 and 37 of the contested decision, the SRB explained, in essence, that the annual target level was to be determined on the basis of an analysis of the evolution of covered deposits in previous years, any relevant development in the economic situation, and an analysis of the indicators related to the phase of the business cycle and the impact that pro-cyclical contributions might have on the financial position of the institutions. Thereafter, the SRB deemed it appropriate to determine a coefficient based on that analysis and on the financial means available in the SRF (‘the coefficient’). The SRB applied that coefficient to one eighth of the average amount of covered deposits in 2020, in order to obtain the annual target level.
140 The SRB set out the approach followed to determine the coefficient in recitals 38 to 47 of the contested decision.
141 In recital 38 of the contested decision, the SRB found there to be a constant growth trend in covered deposits for all of the institutions in the participating Member States. Specifically, the average amount of those deposits, calculated quarterly, amounted to EUR 6.689 trillion for 2020.
142 In recitals 40 and 41 of the contested decision, the SRB presented the forecasted evolution of covered deposits for the remaining three years of the initial period, namely from 2021 to 2023. It estimated that the annual growth rates of covered deposits until the end of the initial period would range between 4% and 7%.
143 In recitals 42 to 45 of the contested decision, the SRB presented an assessment of the phase of the business cycle and of the potential pro-cyclical impact that ex ante contributions may have on the financial position of the institutions. To that end, it stated that it had taken into account a number of indicators, such as the Commission’s GDP growth forecast and the ECB’s projections in that regard or the private-sector credit flow as a percentage of GDP.
144 In recital 46 of the contested decision, the SRB concluded that, while it was reasonable to expect a further growth of covered deposits in the Banking Union, the pace of that growth would be lower than in 2020. In that regard, the SRB stated, in recital 47 of the contested decision, that it had adopted a ‘conservative approach’ with regard to the growth rates of covered deposits for the coming years until 2023.
145 In the light of those considerations, in recital 48 of the contested decision, the SRB set the value of the coefficient at 1.35%. It then calculated the amount of the annual target level by multiplying the average amount of the covered deposits in 2020 by that coefficient and dividing the result of that calculation by eight, in accordance with the following mathematical formula contained in recital 48 of that decision:
‘Target0 [amount of the annual target level] = Total covered deposits2020 * 0.0135 * ⅛ = EUR 11 287 677 212.56’.
146 However, at the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period as follows.
147 First, on the basis of a prospective analysis, the SRB determined the amount of covered deposits of all the authorised institutions in the territories of all the participating Member States, as forecasted at the end of the initial period, at approximately EUR 7.5 trillion. In arriving at that amount, the SRB took into account the average amount of covered deposits in 2020, that is to say, EUR 6.689 trillion, an annual growth rate of covered deposits of 4% and the number of contribution periods remaining until the end of the initial period, namely three.
148 Second, in accordance with Article 69(1) of Regulation No 806/2014, the SRB calculated 1% of that EUR 7.5 trillion in order to obtain the estimated amount of the final target level to be reached on 31 December 2023, namely approximately EUR 75 billion.
149 Third, the SRB deducted from the latter amount the financial means already available in the SRF in 2021, that is to say, approximately EUR 42 billion, to obtain the amount still to be collected over the remaining contribution periods before the end of the initial period, namely from 2021 to 2023. That amount was approximately EUR 33 billion.
150 Fourth, the SRB divided the latter amount by three in order to spread it evenly between those three remaining contribution periods. The annual target level for the 2021 contribution period was thus set at the amount stated in paragraph 138 above, that is to say, approximately EUR 11.287 billion.
151 The SRB also stated at the hearing that it had made public the data which had formed the basis for the method described in paragraphs 147 to 150 above and which allowed the applicant to understand the method by which the annual target level had been determined. In particular, it explained that, in May 2021, that is to say, after the adoption of the contested decision but before the present action was brought, it had published on its website a fact sheet entitled ‘Fact Sheet 2021’ (‘the fact sheet’), which stated the estimated amount of the final target level. Similarly, the SRB asserted that the amount of the available financial means in the SRF could also be found on its website and via other public sources well before the contested decision was adopted.
152 In order to examine whether the SRB complied with its duty to state reasons as regards the determination of the annual target level, it must be recalled first of all that an absence of or an inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited). Accordingly, the Court may, or even must, also take into account failures to state reasons other than those upon which the applicant relies, in particular where those failures come to light in the course of the procedure.
153 To that end, the parties’ arguments were heard, in the course of the oral part of the procedure, concerning any failures to state reasons which would vitiate the contested decision as regards the determination of the annual target level. In particular, in response to a number of questions expressly put in that regard, the SRB described the methodology which it had actually adopted in order to determine the annual target level for the 2021 contribution period, as set out in paragraphs 147 to 150 above.
154 Next, it should be recalled that the statement of reasons for the decision of an EU institution, body, office or agency is particularly important in so far as it allows persons concerned to decide in full knowledge of the circumstances whether it is worthwhile to bring an action against the decision and the court with jurisdiction to review it, and that it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 103 and the case-law cited).
155 Such a statement of reasons must be adapted to the nature of the legal act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the act concerning him or her (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 104 and the case-law cited).
156 Furthermore, that statement of reasons must, inter alia, not contain contradictions, so that the addressees are able to know the real reasons for that decision, with a view to defending their rights before the court with jurisdiction, and that court can exercise its power of review (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169 and the case-law cited; of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 20 and 45 to 47; and of 16 December 2015, Greece v Commission, T‑241/13, EU:T:2015:982, paragraph 56).
157 Similarly, where the author of the contested decision provides certain explanations concerning the reasons for that decision in the course of the procedure before the Courts of the European Union, those explanations must be consistent with the considerations set out in the decision (see, to that effect, judgments of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 45 to 47, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraphs 54 and 55).
158 If the considerations set out in the contested decision are not consistent with such explanations provided in the course of the judicial proceedings, the statement of reasons for the decision concerned does not perform the functions identified in paragraphs 154 and 155 above. In particular, such inconsistency prevents the persons concerned from knowing the real reasons for the contested decision, before an action is brought, and from preparing their defence in that regard, and also prevents the Courts of the European Union from identifying the reasons which served as the actual legal basis for that decision and from examining the compatibility of those reasons with the applicable rules.
159 Finally, it must be recalled that, when the SRB adopts a decision setting the ex ante contributions, it must inform the institutions concerned of the method of calculation of those contributions (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 122).
160 The same must apply to the method of determining the annual target level, since that amount is of critical importance in the scheme of such a decision. As is clear from paragraph 16 above, the method of calculation of the ex ante contributions consists in apportioning that amount between all of the institutions concerned, with the result that an increase or a reduction in that amount means a corresponding increase or reduction in the ex ante contribution of each of those institutions.
161 It follows from the foregoing that, where the SRB is required to provide the institutions, by means of the contested decision, with explanations concerning the method of determining the annual target level, those explanations must be consistent with the explanations provided by the SRB during the judicial proceedings relating to the methodology actually applied.
162 That is not however the case here.
163 It must be observed, first of all, that recital 48 of the contested decision set out a mathematical formula which was presented as forming the basis for the determination of the annual target level. However, it appears that that formula does not incorporate the components of the methodology actually applied by the SRB, as explained at the hearing. As is clear from paragraphs 147 to 150 above, the SRB obtained the amount of the annual target level, using that methodology, by deducting from the final target level the available financial means in the SRF, with a view to calculating the amount still to be collected until the end of the initial period and dividing that amount by three. However, those two steps of the calculation are not expressed in that mathematical formula.
164 Furthermore, that finding cannot be called into question by the SRB’s assertion that, in May 2021, it published the fact sheet, which contained a range of potential amounts of the final target level and, on its website, the amount of the financial means available in the SRF. Regardless of whether the applicant was actually aware of those amounts, they were incapable, on their own, of enabling it to understand that the two transactions referred to in paragraph 163 above had actually been applied by the SRB, it being noted, moreover, that the mathematical formula provided for in recital 48 of the contested decision did not even mention them.
165 Similar inconsistencies also affect the way in which the coefficient of 1.35% was determined, despite the fact that it plays a crucial role in the mathematical formula mentioned in paragraph 164 above. That coefficient could be understood as meaning that it is based, amongst other parameters, on the forecasted growth in covered deposits over the remaining years of the initial period. However, that is inconsistent with the explanations provided by the SRB at the hearing, from which follows that that coefficient was determined so as to be able to justify the result of the calculation of the amount of the annual target level, that is to say, after the SRB calculated that amount by following the four steps set out in paragraphs 147 to 150 above and, in particular, by the division by three of the amount obtained from the deduction of the available financial means in the SRF from the final target level. No reference to those steps is made in the contested decision.
166 In addition, it must be recalled that, according to the fact sheet, the amount of the estimated final target level was in the range of EUR 70 billion and EUR 75 billion. That range appears to be inconsistent with the range of the growth rate of covered deposits of between 4% and 7% indicated in recital 41 of the contested decision. The SRB stated at the hearing that, for the purposes of determining the annual target level, it had taken into account a growth rate of covered deposits of 4% – which was the lowest rate in the second range – and that it had thus obtained the estimated final target level of EUR 75 billion – the highest value in the first range. There thus appears to be some inconsistency between those two ranges. On the one hand, the range relating to the rate of evolution in covered deposits also includes values higher than the rate of 4%, the application of which would have resulted in an estimated amount of the final target level greater than those included in the range for that target level. On the other hand, it is impossible for the applicant to understand why the SRB included within the range relating to that target level amounts lower than EUR 75 billion. To arrive at such amounts, a rate of below 4% would have to have been applied, but no such rate is included in the range relating to the growth rate of covered deposits. In those circumstances, the applicant was unable to determine how the SRB had used the range relating to the rate of evolution of such deposits to arrive at the calculation of the estimated final target level.
167 It follows that, as far as concerns the determination of the annual target level, the methodology actually applied by the SRB, as explained at the hearing, does not correspond to that described in the contested decision, and therefore the real reasons in the light of which that target level was set could not be identified on the basis of the contested decision either by the institutions or by the Court.
168 In the light of the foregoing, the contested decision must be found to be vitiated by defects in the statement of reasons as regards the determination of the annual target level.
169 In view of the legal and economic implications of the present case, it is however in the interests of the proper administration of justice for the other pleas in law raised in the action to be examined.
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On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1. Annuls Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund, in so far as it concerns Norddeutsche Landesbank – Girozentrale as the legal successor to Deutsche Hypothekenbank AG;
2. Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Norddeutsche Landesbank – Girozentrale as the legal successor to Deutsche Hypothekenbank until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of the present judgment, of a new decision of the SRB fixing that institution’s ex ante contribution to the Single Resolution Fund for 2021;
3. Orders the SRB to bear its own costs and to pay those incurred by Norddeutsche Landesbank – Girozentrale.
4. Orders the European Commission to bear its own costs.
Delivered in open court in Luxembourg on 10 July 2024
[Signatures]