JUDGMENT OF THE COURT (First Chamber)
29 September 2022 (*)
(Appeal – Economic and monetary policy – Banking union – Regulation (EU) No 806/2014 – Single resolution mechanism for credit institutions and certain investment firms – Single Resolution Fund – Annual contributions – Liquidation of a credit institution – Reimbursement of contributions paid – Pro rata temporis)
In Case C‑202/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 March 2021,
ABLV Bank AS, in liquidation, represented by O. Behrends, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
Single Resolution Board (SRB), represented by C.J. Flynn and J. Kerlin, acting as Agents, and by S. Ianc, T. Klupsch, B. Meyring and S. Schelo, Rechtsanwälte,
defendant at first instance,
European Commission, represented by A. Nijenhuis, A. Steiblytė and D. Triantafyllou, acting as Agents,
intervener at first instance,
THE COURT (First Chamber),
composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, and A. Kumin, Judge,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 28 April 2022,
gives the following
Judgment
1 By its appeal, ABLV Bank AS, in liquidation, seeks to have set aside the judgment of the General Court of the European Union of 20 January 2021, ABLV Bank v SRB (T‑758/18, EU:T:2021:28) (‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Single Resolution Board (SRB) of 17 October 2018 rejecting its request for, first, recalculation of its 2018 ex ante contribution and reimbursement of the overpayment and, second, reimbursement of a portion of its 2015 ex ante contribution, following the withdrawal of its licence by the European Central Bank (ECB) (‘the decision at issue’).
Legal context
Regulation (EU) No 806/2014
2 Article 2 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) is worded as follows:
‘This Regulation shall apply to the following entities:
(a) credit institutions established in a participating Member State;
(b) parent undertakings, including financial holding companies and mixed financial holding companies, established in a participating Member State, where they are subject to consolidated supervision carried out by the ECB …;
(c) investment firms and financial institutions established in a participating Member State, where they are covered by the consolidated supervision of the parent undertaking carried out by the ECB …’
3 Article 5(1) of that regulation states:
‘Where, pursuant to this Regulation, the [SRB] performs tasks and exercises powers, which … are to be performed or exercised by the national resolution authority, the [SRB] shall, for the application of this Regulation …, be considered to be the relevant national resolution authority or, in the event of cross-border group resolution, the relevant group-level resolution authority.’
4 Article 70(2) and (4) of that regulation provides:
‘2. Each year, the [SRB] shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level.
…
4. The duly received contributions of each entity referred to in Article 2 shall not be reimbursed to those entities.’
Delegated Regulation (EU) 2015/63
5 Recital 7 of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44), as amended by Commission Delegated Regulation (EU) 2016/1434 of 14 December 2015 (OJ 2016 L 233, p. 1) (‘Delegated Regulation 2015/63’), is worded as follows:
‘Article 5(1) of [Regulation No 806/2014] provides that the [SRB] is considered, for the application of that Regulation …, as the relevant national resolution authority where it performs tasks and exercises powers which, … are to be performed or exercised by the national resolution authority. Considering that Article 70(7) of [Regulation No 806/2014] empowers the [SRB] to calculate the contributions of institutions to the Single Resolution Fund …, the notion of resolution authority under this Regulation should also include the [SRB].’
6 Article 3(5) of that delegated regulation is worded as follows:
‘… For the purpose of this Regulation, the following definitions shall … apply:
…
(5) “annual contribution” means the amount … raised by the resolution authority for the national financing arrangement during the contribution period from each of the institutions …’.
7 Article 12 of that delegated regulation provides:
‘1. Where an institution is a newly supervised institution for only part of a contribution period, the partial contribution shall be determined by applying the methodology set out in this Section to the amount of its annual contribution calculated during the subsequent contribution period by reference to the number of full months of the contribution period for which the institution is supervised.
2. A change of status of an institution, including a small institution, during the contribution period shall not have an effect on the annual contribution to be paid in that particular year.’
8 Article 17(3) and (4) of that delegated regulation states:
‘3. Where the information submitted by the institutions to the resolution authority is subject to restatements or revisions, the resolution authority shall adjust the annual contribution in accordance with the updated information upon the calculation of the annual contribution of that institution for the following contribution period.
4. Any difference between the annual contribution calculated and paid on the basis of the information subject to restatements or revision and the annual contribution which should have been paid following the adjustment of the annual contribution shall be settled in the amount of the annual contribution due for the following contribution period. That adjustment shall be made by decreasing or increasing the contributions to the following contribution period.’
Implementing Regulation (EU) 2015/81
9 Article 7(3) of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1) states as follows:
‘The irrevocable payment commitments of an institution that no longer falls within the scope of [Regulation No 806/2014] are cancelled and collateral backing these commitments is returned.’
10 Article 8(2) of that implementing regulation is drafted as follows:
‘During the initial period, when calculating the individual contributions of each institution, the [SRB] shall take into account the contributions raised by the participating Member States in accordance with Articles 103 and 104 of 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)] and transferred to the Fund …, by deducting them from the amount due from each institution.’
Delegated Regulation (EU) 2017/2361
11 Article 7(2), (4) and (5) of Commission Delegated Regulation (EU) 2017/2361 of 14 September 2017 on the final system of contributions to the administrative expenditures of the Single Resolution Board (OJ 2017 L 337, p. 6) provides as follows:
‘2. Where the status of an entity or a group changes between the categories specified in Article 4(1) during a financial year, its individual annual contribution for that financial year shall be calculated on the basis of the number of months for which the entity or a group fell under the respective category at the last day of the month.
…
4. Where a change as referred to in paragraphs 1 and 2 has been reported by the ECB …, the [SRB] shall recalculate only the individual annual contribution of that entity or group for the financial years concerned. …
5. Where the amount of an individual annual contribution paid is higher than the amount recalculated in accordance with paragraph 4, the [SRB] shall refund the difference to the entity or group concerned. Where the amount of an individual annual contribution paid is lower than the amount recalculated in accordance with paragraph 4, the entity or group concerned shall pay the difference to the [SRB]. For the purposes of refunding or collecting an amount due in accordance with this paragraph, the [SRB] shall decrease or increase the individual annual contribution of the entity or group concerned in the financial year following the recalculation pursuant to paragraph 4.’
Background to the dispute
12 ABLV Bank was an authorised Latvian credit institution which was subject to supervision by the ECB under the Single Supervisory Mechanism (SSM).
13 In December 2015, ABLV Bank received a collection notice from the Finanšu un kapitāla tirgus komisija (Financial and Capital Markets Commission, Latvia), informing it of the amount due as its 2015 ex ante contribution. That contribution was paid by the appellant and transferred to the Single Resolution Fund (SRF).
14 On 23 February 2018, the ECB concluded that the appellant was failing or likely to fail. On the same day, the SRB determined, in its Decision SRB/EES/2018/09, that resolution action in respect of the appellant was not necessary in the public interest.
15 On 26 February 2018, the shareholders of ABLV Bank brought proceedings which would enable the latter to complete its own liquidation and submitted to the Financial and Capital Markets Commission a request for approval of its voluntary liquidation plan.
16 By Decision SRB/ES/SRF/2018/03 of 12 April 2018 on the calculation of the 2018 ex ante contributions, the SRB approved the 2018 ex ante contributions. By letter of 27 April 2018, the Financial and Capital Markets Commission informed ABLV Bank that the SRB had adopted that decision and informed ABLV Bank of the amount to be paid by way of the 2018 ex ante contribution. The appellant paid that amount on 3 July 2018.
17 On 11 July 2018, the ECB, following a proposal from the Financial and Capital Markets Commission, adopted a decision to withdraw the appellant’s licence.
18 By letter of 17 September 2018, the appellant sent a request to the SRB for the reimbursement of a proportion of the contribution paid for the year 2015, the recalculation of the amount of its 2018 ex ante contribution and the reimbursement of the amounts overpaid as ex ante contributions.
19 By the decision at issue, the SRB refused that request. The SRB concluded, on the basis of Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63, that none of the provisions of those two regulations provided either for the recalculation of its 2018 ex ante contribution or for the reimbursement of part of it. In particular, the SRB stated that the withdrawal of a credit institution’s licence by the ECB constituted a change of status within the meaning of Article 12(2) of Delegated Regulation 2015/63. In addition, the SRB concluded that entities which had paid 2015 ex ante contributions and whose licence had subsequently been withdrawn did not have a right to reimbursement of those ex ante contributions, nor did they have a right to reimbursement of any other ex ante contribution duly paid under Article 70(4) of Regulation No 806/2014.
The action before the General Court and the judgment under appeal
20 By application lodged at the General Court Registry on 21 December 2018, ABLV Bank brought an action for the annulment of the decision at issue.
21 In support of that action, ABLV Bank relied on 10 pleas in law. By the first three pleas, it essentially alleged that the SRB had failed to take due account of the pro rata temporis nature of the ex ante contributions. The fourth and fifth pleas alleged a misinterpretation, first, of Article 70(4) of Regulation No 806/2014 and, second, of Article 12(2) of Delegated Regulation 2015/63. The sixth, seventh, eighth, ninth and tenth pleas alleged, respectively, infringements of the principles of legal certainty and of the protection of legitimate expectations, of the principle of proportionality, of the maxim nemo auditur propriam turpitudinem allegans (‘the maxim nemo auditur’), of the prohibition on acting in a contradictory manner, and of the right to property and of the freedom to conduct a business.
22 By decision of 30 April 2019, the European Commission was granted leave to intervene in support of the form of order sought by the SRB.
23 By the judgment under appeal, the General Court dismissed the action brought by ABLV Bank.
24 After declaring that action admissible, the General Court examined the first five pleas together in paragraphs 52 to 129 of the judgment under appeal.
25 After examining those first five pleas, it held, in paragraph 130 of that judgment, that the SRB had not erred in law by considering that the withdrawal of an institution’s licence by the ECB, during the contribution period, was not a circumstance that gave that institution a right to a prorated recalculation of its ex ante contribution for that period and by deciding, therefore, not to reimburse to ABLV Bank part of the sum it had paid as its 2018 ex ante contribution. The General Court also held that the SRB had not erred in law by concluding that the withdrawal of an institution’s licence by the ECB, during the initial period provided for under Regulation No 806/2014, was not a circumstance that gave that institution a right to reimbursement of the remaining balance of the 2015 ex ante contribution it had paid.
26 Consequently, it rejected, in paragraph 131 of the judgment under appeal, the first five pleas submitted by ABLV Bank.
27 In paragraphs 132 to 180 of the judgment under appeal, the General Court examined and rejected the sixth to tenth pleas raised by ABLV Bank.
Forms of order sought
28 By its appeal, ABLV Bank claims that the Court of Justice should:
– set aside the judgment under appeal;
– annul the decision at issue;
– order the SRB to bear the costs at first instance and on appeal; and
– to the extent that the Court of Justice is not in a position to rule on the action at first instance, refer the case back to the General Court.
29 The SRB and the Commission contend that the Court should:
– dismiss the appeal; and
– order ABLV Bank to pay the costs.
The appeal
30 ABLV Bank puts forward 13 grounds of appeal, alleging, first, misinterpretation of Article 70(4) of Regulation No 806/2014, second, misinterpretation of Article 12 of Delegated Regulation 2015/63, third, misinterpretation of Article 7 of Delegated Regulation 2017/2361, fourth, misinterpretation and misapplication of the concept of ‘unjust enrichment’, fifth, failure to rule on a plea of illegality, sixth, errors as regards the taking into account of Decision SRB/ES/SRF/2018/03 of the SRB, seventh, misinterpretation of Article 17 of Delegated Regulation 2015/63, eighth, errors as regards the irrevocable payment commitments regime, ninth, errors of law and a failure to issue a decision on the 2015 ex ante contributions, tenth, errors of law made when rejecting the sixth plea in law at first instance, eleventh, errors of law made when rejecting the seventh plea in law at first instance, twelfth, errors of law made when rejecting the eighth and ninth pleas in law at first instance, and, thirteenth, errors regarding whether the statement of reasons in the decision at issue is sufficient.
31 The SRB and the Commission contend that a number of the grounds are inadmissible.
Admissibility
Arguments of the parties
32 The SRB submits that the first, fourth, fifth and eighth grounds are inadmissible in so far as they do not identify the paragraphs of the judgment under appeal to which they relate.
33 The Commission observes that a number of the grounds, in particular the first, third, seventh and eighth grounds, do not relate to any specific paragraph of the judgment under appeal.
Findings of the Court
34 It should be borne in mind, at the outset, that it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned will be inadmissible (judgment of 13 January 2022, Dragnea v Commission, C‑351/20 P, EU:C:2022:8, paragraph 53 and the case-law cited).
35 Accordingly, an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the paragraphs of the judgment under appeal which may be vitiated by an error of law does not satisfy those requirements and must be dismissed as inadmissible (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 30 and the case-law cited).
36 In the present case, it is true that the grounds of appeal that are the subject of the plea of inadmissibility raised by the SRB and the Commission do not refer systematically to the paragraphs of the judgment under appeal to which they relate.
37 However, those grounds follow the structure of the judgment under appeal, as indeed the introductory part of the appeal expressly states.
38 Accordingly, the information provided in the appeal makes it easy to identify the paragraphs of the judgment under appeal to which each of the grounds relates; indeed, the arguments put forward in defence by the SRB and the Commission confirm that they were able to identify those paragraphs.
39 Accordingly, the plea of inadmissibility alleging that the first, third, fourth, fifth, seventh and eighth grounds do not make clear to which paragraphs of the judgment under appeal they refer must be rejected.
Substance
The first ground of appeal, alleging misinterpretation of Article 70(4) of Regulation No 806/2014
– Arguments of the parties
40 By its first ground, ABLV Bank submits that the General Court misinterpreted Article 70(4) of Regulation No 806/2014 in so far as that provision merely means that ex ante contributions are not refundable deposits.
41 It claims, in the first place, that the General Court departed from the ordinary meaning of the term ‘due’ and the doctrine of unjust enrichment by considering any sum paid initially to be ‘due’, even if it subsequently transpires that it did not have to be paid for the relevant period.
42 Furthermore, the scope of the negation in Article 70(4) of Regulation No 806/2014 is not as clear as the General Court asserted. The scope of that negation depends on what it related to, namely a refundable deposit or a subsequent re-examination of the amounts due. Nor is the fact that that provision makes no reference to any possibility of adjusting ex ante contributions in the event that an institution loses its licence decisive, given the lack of detail in that provision.
43 ABLV Bank submits, in the second place, that the interpretation of Article 70(4) of Regulation No 806/2014 adopted in the judgment under appeal is inconsistent with other elements of EU law.
44 That interpretation is contradicted by Article 7(3) of Implementing Regulation 2015/81 and Article 17 of Delegated Regulation 2015/63, which provide for the possibility of reimbursing ex ante contributions.
45 That interpretation is also incompatible with Article 12(2) of Delegated Regulation 2015/63, since it would be illogical for that provision to define certain changes as irrelevant to a subsequent determination of a debt if such a determination is precluded in any event.
46 Similarly, the General Court’s interpretation is inconsistent with the reasoning adopted by the Court of Justice in the judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967). That reasoning, which relates to the lack of relevance of a change in an institution’s status during a SRF contribution period, is based not on Article 70(4) of Regulation No 806/2014, but on Article 12(2) of Delegated Regulation 2015/63.
47 ABLV Bank claims, in the third place, that the General Court incorrectly assessed the nature of ex ante contributions by holding that they were not individual contributions determined on the basis of the risks inherent to an institution which relate to specific periods, like insurance premiums. In particular, the General Court failed to take account of the fact that individual contributions are determined on the basis of risks and of the possibility of levying new contributions after the initial period provided for by Regulation No 806/2014. Furthermore, the fact that the ex ante contributions are spread over a period of time and are not automatically linked to consideration is irrelevant, since they are characteristics common to all insurance schemes.
48 ABLV Bank submits, in the fourth place, that the reimbursement sought by ABLV Bank is, in any event, also possible in a context comparable to that of tax law, without the objective of achieving a target level of reserves being sufficient to preclude a possible reimbursement.
49 The SRB and the Commission contend that the first ground is unfounded.
– Findings of the Court
50 Article 70(4) of Regulation No 806/2014 states that the ex ante contributions duly received from institutions are not to be reimbursed to them.
51 In paragraphs 66 and 67 of the judgment under appeal, the General Court, first of all, pointed out that the wording of that provision implied unequivocally that a duly paid contribution cannot be reimbursed.
52 The General Court then referred, in paragraphs 68 to 73 of that judgment, to the context surrounding that provision. It pointed out, inter alia, that it followed from EU legislation that ex ante contributions do not relate to a particular year and that they do not guarantee any consideration, which distinguishes them from insurance premiums the reimbursement of which must be envisaged where a change in situation occurs during the course of the year.
53 Lastly, the General Court observed, in paragraphs 74 and 75 of that judgment, that taking into account the evolution of the legal and financial situation of the institutions concerned during the financial year may frustrate the attainment of the objective pursued by Regulation No 806/2014 and Delegated Regulation 2015/63, namely that of ensuring that, at the end of an initial period of eight years, the available financial means of the SRF reach at least 1% of the amount of covered deposits of all authorised credit institutions in all participating Member States.
54 In that regard, it should be noted, in the first place, that the General Court correctly held, in paragraph 67 of the judgment under appeal, that it follows from the clear wording of Article 70(4) of Regulation No 806/2014 that the EU legislature intended to exclude, in a general manner, the reimbursement of ex ante contributions received in due form.
55 Furthermore, to the extent that ABLV Bank argues that the General Court adopted, in the judgment under appeal, an interpretation which departs from the ordinary meaning of the word ‘due’, it should be noted that that provision refers not to ‘due contributions’ but to ‘duly received contributions’, thus indicating that the non-reimbursement rule which it lays down applies to ex ante contributions which were properly received on the date of their payment.
56 Moreover, although ABLV Bank relies on the lack of detail in that provision in order to reject the relevance of the finding, made in paragraph 67 of the judgment under appeal, that no mention is made in that provision of the possibility of subsequently adjusting ex ante contributions, without, however, challenging the substance of that finding, it must be stated that that wording reflects the EU legislature’s decision to establish a rule with no exceptions.
57 In the second place, ABLV Bank’s line of argument that the General Court’s interpretation of Article 70(4) of Regulation No 806/2014 contradicts other provisions of secondary legislation cannot succeed.
58 First of all, Article 7(3) of Implementing Regulation 2015/81 merely sets out certain rules applicable to irrevocable payment commitments made by an institution which have particular features that led the EU legislature, as the General Court observed in paragraph 111 of the judgment under appeal, to introduce a specific regime particular to those commitments.
59 Next, although it is true that Article 17(3) and (4) of Delegated Regulation 2015/63 provides for account to be taken of any difference between an ex ante contribution paid on the basis of information which is subject to restatements or revisions and the ex ante contribution which should have been paid, it follows from those provisions not that such difference must be taken into account in the form of a reimbursement – as is requested by ABLV Bank from the SRB in the present case – but that account of that difference must be taken in the context of the calculation of the ex ante contribution for the following contribution period.
60 Finally, contrary to what the appellant claims, the interpretation of Article 70(4) of Regulation No 806/2014 adopted in paragraphs 66 to 75 of the judgment under appeal cannot be regarded as rendering Article 12(2) of Delegated Regulation 2015/63 devoid of purpose.
61 First, as the Advocate General noted in point 72 of her Opinion, the purpose of Article 12(2) of Delegated Regulation 2015/63 is, inter alia, to avoid any uncertainty as to the scope of Article 12(1) of that delegated regulation, since it provides for a derogation from the principle that ex ante contributions are to be calculated on the basis of the information available on 31 December of the year preceding the contribution period.
62 Second, Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63 have a different material scope. Whereas the first of those provisions relates only to contributions to the SRF, the second refers, in accordance with Article 3(5) of Delegated Regulation 2015/63, to contributions raised by the resolution authority for the national financing arrangement, a concept which must be understood, according to Article 5(1) of Regulation No 806/2014, as also referring to the SRB, as is stated in recital 7 of that delegated regulation.
63 In that context, the fact that, in the judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967), which concerned the calculation of a contribution to a national resolution fund, the Court of Justice confined itself to interpreting Article 12(2) of Delegated Regulation 2015/63 – the only provision in relation to which it was, moreover, requested to provide an answer – cannot mean that it implicitly rejected the interpretation of Article 70(4) of Regulation No 806/2014 adopted in the judgment under appeal.
64 In the third place, the analogy relied on by ABLV Bank between ex ante contributions and insurance premiums cannot, in any event, require the SRB to replace the clear wording of Article 70(4) of Regulation No 806/2014 with a rule to the contrary, on the ground that that rule is, according to the appellant, normal in the field of insurance.
65 Therefore, ABLV Bank’s arguments seeking to show that the General Court could not, in the light of the factors set out in paragraphs 68 to 72 of the judgment under appeal, reject, in paragraph 73 thereof, the claim that the characteristics of ex ante contributions and those of insurance premiums are similar must be rejected as ineffective.
66 In the fourth place, nor does ABLV Bank’s line of argument directed against paragraphs 74 and 75 of the judgment under appeal, alleging that it would have been possible to attain the objective of providing the SRF with sufficient financial means by the end of an initial period of eight years, while reimbursing ex ante contributions where an institution falls outside the scope of Regulation No 806/2014, call into question the interpretation of Article 70(4) of that regulation adopted in paragraph 76 of that judgment.
67 The fact that the EU legislature could also have achieved the objective referred to in paragraph 74 of that judgment by authorising such reimbursements, even if it were established, does not preclude the legislature’s decision as to the most appropriate means for pursuing that objective, a decision which is expressed in the clear wording of that provision (see, by analogy, judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others, C‑275/09, EU:C:2011:154, paragraph 29).
68 In the light of all of the findings above, the first ground must be rejected as ineffective in part and unfounded in part.
The second ground of appeal, alleging misinterpretation of Article 12 of Delegated Regulation 2015/63
– Arguments of the parties
69 By its second ground, ABLV Bank submits that the General Court erred in law in holding that the loss of a credit institution’s licence must be regarded as a ‘change of status’ within the meaning of Article 12(2) of Delegated Regulation 2015/63.
70 That interpretation is inconsistent with the interpretation of Article 70(4) of Regulation No 806/2014 adopted in the judgment under appeal. If all reimbursement were excluded under that provision, it would be pointless to exclude, in Article 12(2) of Delegated Regulation 2015/63, the possibility of making such reimbursement in the event of a change in status.
71 Furthermore, the latter provision concerns only the amount of the ex ante contribution and not the principle itself of the payment of such a contribution. That interpretation follows clearly from the German-language version of that provision and is compatible with the other language versions of the same provision. Indeed, before holding that a cross-border merger must be considered to be a ‘change of status’ within the meaning of Article 12 of Delegated Regulation 2015/63, the Court of Justice relied, in paragraph 47 of the judgment of 14 November 2019, State Street Bank International, (C‑255/18, EU:C:2019:967), on the fact that, after such a transaction, the institution concerned still fell within the scope of the Single Resolution Mechanism (SRM).
72 The SRB and the Commission contend that the second ground is unfounded.
– Findings of the Court
73 Article 12(1) of Delegated Regulation 2015/63 provides for a specific method for calculating the ex ante contribution which must be applied where an institution has been supervised for only part of a contribution period.
74 Article 12(2) of that delegated regulation states that a change of status of an institution, including a small institution, during the contribution period is not to have an effect on the ex ante contribution to be paid in that particular year.
75 After setting out, in paragraph 77 of the judgment under appeal, the wording of those provisions, the General Court cited, in paragraphs 80 to 83 of that judgment, a large part of paragraphs 35 to 48 of the judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967). On that basis, the General Court held, in paragraphs 84 and 87 of the judgment under appeal, that, for the same reasons as those adopted by the Court of Justice in the judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967), the withdrawal of a credit institution’s licence by the ECB must be regarded as such a change of status, even where the result of that withdrawal is that the institution in question no longer falls within the scope of the SRM.
76 In that regard, it should be recalled that the Court of Justice has held that the words ‘change of status’ used in Article 12(2) of Delegated Regulation 2015/63 can encompass any kind of change in the legal or factual situation of an institution which may have an effect on the application of that provision (judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraph 35).
77 In addition, the context of that provision means that a transaction which constitutes a change of status within the meaning of that provision does not, in principle, benefit from the method of calculating prorated contributions as provided for in Article 12(1) of Delegated Regulation 2015/63, since that latter provision is to be interpreted strictly (see, to that effect, judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraphs 39 and 40).
78 The Court of Justice has also stated that, if national resolution authorities were required to take into account changes occurring in the legal and financial situation of institutions throughout the financial year in question, it would hardly be possible for them reliably to calculate the ordinary contributions due in the following year and, as a result, achieve the objective of reaching, by 31 December 2024, at least 1% of the amount of covered deposits of all the institutions authorised in the territory of a Member State (see, to that effect, judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraph 43).
79 The Court of Justice has inferred from those factors that the concept of ‘change of status’ provided for in Article 12(2) of Delegated Regulation 2015/63 must be understood in a broad sense as including, inter alia, a cross-border merger by acquisition that occurred during the contribution period (judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraph 44).
80 Since the findings relating to the wording, context and objective of Article 12(2) of Delegated Regulation 2015/63, referred to in paragraphs 76 to 78 of this judgment, are relevant to the loss of a credit institution’s licence during a given year, the General Court correctly held, in paragraph 84 of the judgment under appeal, that those findings justified classifying such a loss of licence as a ‘change of status’ within the meaning of that provision.
81 Similarly, the General Court did not err in law in rejecting, in paragraph 87 of the judgment under appeal, ABLV Bank’s argument that the concept of a ‘change of status’ within the meaning of that provision does not cover changes leading an institution no longer to fall within the scope of the SRM in the future.
82 It should be noted that the wording of Article 12(2) of Delegated Regulation 2015/63 makes no distinction between changes in the status of institutions according to whether or not they cause the institution concerned to fall outside of the scope of the SRM.
83 The fact, relied on by ABLV Bank, that the German-language version of that provision refers only to the amount of the ex ante contribution is irrelevant in that regard.
84 In those circumstances, the findings set out in paragraph 47 of the judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967) – the purpose of which is only to confirm, as is stated in paragraph 45 of that judgment, the broad interpretation of the concept of ‘change of status’ within the meaning of Article 12(2) of Delegated Regulation 2015/63, the validity of which was already established in paragraph 44 of that judgment – cannot be read as implying that the Court of Justice intended to limit the scope of that broad interpretation solely to changes in the situation of an institution which did not entail that institution falling outside of the scope of the SRM.
85 Moreover, the argument put forward by ABLV Bank that the interpretations of Article 12(2) of Delegated Regulation 2015/63 and Article 70(4) of Regulation No 806/2014 adopted in the judgment under appeal are contradictory must be rejected for the reasons set out in paragraphs 61 to 63 of the present judgment.
86 In the light of the foregoing, the second ground must be rejected as unfounded.
The third ground of appeal, alleging misinterpretation of Article 7 of Delegated Regulation 2017/2361
– Arguments of the parties
87 By its third ground, ABLV Bank submits, first, that the General Court incorrectly required it to establish a link between Article 7 of Delegated Regulation 2017/2361 and Article 12(2) of Delegated Regulation 2015/63, on the basis of the erroneous idea that the same expression should, in principle, have a different meaning where it is used in two separate provisions, unless there is a specific link between them.
88 Second, the contrast noted by the General Court between the public interest served by the ex ante contributions and the more specific interests of the institution in question served by the contributions to the administrative expenses of the SRB is manifestly incorrect. It is more relevant to take into account the fact that the ex ante contributions have a closer link with the institution concerned, since they are linked to that institution’s risk profile.
89 The SRB and the Commission contend that the third ground is unfounded.
– Findings of the Court
90 Article 7(2), (4) and (5) of Delegated Regulation 2017/2361 provides for a method for calculating a prorated annual individual contribution to the SRB’s administrative expenditure where the status of an entity or group is subject to changes in the course of a year.
91 In paragraph 86 of the judgment under appeal, the General Court held that the concept of ‘change of status’ within the meaning of Article 12(2) of Delegated Regulation 2015/63 could not be understood as covering only the cases covered by Article 7 of Delegated Regulation 2017/2361, in the light of the differences in object and purpose between those two regulations.
92 In the light of the findings set out in paragraph 86 of that judgment, it appears that ABLV Bank’s argument that the General Court incorrectly required it to establish a link between Article 12(2) of Delegated Regulation 2015/63 and Article 7 of Delegated Regulation 2017/2361 is based on a misreading of the judgment under appeal, since the General Court did not rely, in that paragraph, on the fact that no link had been established between those two provisions.
93 In addition, ABLV Bank does not dispute the General Court’s finding that the ex ante contributions and contributions to the administrative expenditure of the SRB do not have the same object.
94 Since that difference in object is sufficient to justify their calculation by separate and independent methods, it must be held that ABLV Bank has not established that the General Court erred in law by refusing to take into account Article 7 of Delegated Regulation 2017/2361 for the purposes of interpreting Article 12(2) of Delegated Regulation 2015/63.
95 Therefore, the third ground must be rejected as unfounded.
The fourth ground of appeal, alleging misinterpretation and misapplication of the concept of ‘unjust enrichment’
– Arguments of the parties
96 By its fourth ground, ABLV Bank submits that paragraphs 92 to 96 of the judgment under appeal are based on the erroneous idea that the application of the concept of ‘unjust enrichment’ entails examining only the initial justification for the payment. On the contrary, account should, in principle, be taken of developments that occurred subsequently which had consequences on whether a payment was owed, which is why Article 12(2) of Delegated Regulation 2015/63 precludes certain changes being taken into account for the sake of administrative simplicity.
97 The SRB and the Commission contend that the fourth ground is unfounded.
– Findings of the Court
98 In paragraphs 94 to 96 of the judgment under appeal, the General Court found that the legal bases of the payments at issue were Article 70(4) of Regulation No 806/2014 and Article 12 of Delegated Regulation 2015/63, which preclude reimbursement in part of the 2018 ex ante contribution and the validity of which had not been challenged by ABLV Bank.
99 Thus, in order to find that there was a legal basis for the SRF’s enrichment arising from the collection and retention of ABLV Bank’s 2018 ex ante contribution, the General Court expressly relied on the fact that the relevant provisions preclude reimbursement of that contribution in the event of a change in the status of the institution concerned in 2018.
100 Accordingly, it cannot be concluded that the General Court held that unjust enrichment could be excluded merely because the initial justification for the payment had been established, without taking into account the existence of a legal basis for retaining the amounts in question.
101 It follows that the fourth ground relied on by ABLV Bank is based on a misreading of the judgment under appeal.
102 Consequently, the fourth ground must be rejected as unfounded.
Fifth ground of appeal, alleging that the General Court failed to rule on a plea of illegality
– Arguments of the parties
103 By its fifth ground, ABLV Bank submits that the General Court failed to respond to a plea of illegality raised in paragraph 40 of its response to the General Court’s questions of 12 June 2020.
104 The SRB and the Commission contend that the fifth ground is unfounded.
– Findings of the Court
105 In paragraph 95 of the judgment under appeal, the General Court stated that the appellant’s pleadings do not contain, explicitly or implicitly, any plea of illegality relating to Article 70(4) of Regulation No 806/2014 and Article 12 of Delegated Regulation 2015/63.
106 Since ABLV Bank claims that the General Court failed to rule on a plea of illegality set out in paragraph 40 of its pleading of 12 June 2020, it must be pointed out, first, that, in the context of the appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, second, that the plea alleging that the General Court failed to respond to arguments relied on at first instance amounts essentially to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and from Article 117 of the Rules of Procedure of the General Court (judgment of 9 March 2017, Ellinikos Chrysos v Commission, C‑100/16 P, EU:C:2017:194, paragraph 31 and the case-law cited).
107 The obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties to the case, the General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 9 March 2017, Ellinikos Chrysos v Commission, C‑100/16 P, EU:C:2017:194, paragraph 32 and the case-law cited).
108 It seems that the General Court, in paragraph 95 of the judgment under appeal, considered, implicitly but necessarily, that paragraph 40 of the appellant’s pleading of 12 June 2020, which states that it would be unlawful to adopt the interpretation of Article 12 of Delegated Regulation 2015/63 proposed by the SRB, related to the interpretation of that article and not to its validity, without thereby distorting that pleading.
109 Therefore, the fifth ground must be rejected as unfounded.
The sixth ground of appeal, alleging errors as regards the taking into account of Decision SRB/ES/SRF/2018/03 of the SRB
– Arguments of the parties
110 By its sixth ground, ABLV Bank claims that the application of the rule that a practice cannot alter the legal framework in force is inappropriate in the present case. While Decision SRB/ES/SRF/2018/03 of the SRB ordered the reimbursement of ex ante contributions paid, it is common ground that such reimbursement can be envisaged only as a result of a right held by the recipient of that reimbursement, and that acts of generosity by the SRB are not permissible.
111 The argument in the alternative accepted by the General Court concerning Decision SRB/ES/SRF/2018/03 of the SRB is purely semantic, since reimbursement does not change its nature because it is presented as a negative payment or involves a mathematical operation. Furthermore, it would be arbitrary to draw a distinction between a deduction applied to the amount of a contribution and a reimbursement.
112 The SRB and the Commission contend that the sixth ground is unfounded.
– Findings of the Court
113 In paragraphs 98 and 99 of the judgment under appeal, the General Court found that ABLV Bank’s arguments directed against Decision SRB/ES/SRF/2018/03 of the SRB were inoperative, since a mere practice of the SRB could not have the effect of modifying the content of the applicable provisions of EU law, before stating, in the alternative, in paragraphs 100 to 102 of that judgment, that those arguments were unfounded.
114 The General Court was correct to point out, in paragraph 98 of the judgment under appeal, that a mere practice of an institution, body, office or agency of the European Union cannot derogate from the rules imposed on them and create a precedent which they are required to follow (see, to that effect, judgments of 26 March 1996, Parliament v Council, C‑271/94, EU:C:1996:133, paragraph 24, and of 1 October 2009, Commission v Council, C‑370/07, EU:C:2009:590, paragraph 54).
115 It follows that, even if the SRB did in fact acknowledge, in Decision SRB/ES/SRF/2018/03, the possibility of making certain reimbursements of ex ante contributions, that decision did not call into question the General Court’s interpretation of Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63.
116 The fact that the SRB cannot validly perform acts of generosity vis-à-vis credit institutions is, in that context, irrelevant, since it cannot be presumed that the SRB, when it adopted Decision SRB/ES/SRF/2018/03, complied with that rule and, moreover, correctly interpreted the rules of secondary legislation to which it is subject.
117 It follows that the appellant’s line of argument directed against paragraphs 98 and 99 of the judgment under appeal must be rejected as unfounded.
118 In those circumstances, paragraphs 100 to 102 of that judgment must be regarded as have been included for the sake of completeness, which means that the line of argument challenging those paragraphs is ineffective (see, by analogy, judgment of 18 June 2020, Dovgan v EUIPO, C‑142/19 P, not published, EU:C:2020:487, paragraph 92 and the case-law cited).
119 Consequently, the sixth ground must be rejected as being ineffective in part and unfounded in part.
The seventh ground of appeal, alleging misinterpretation of Article 17 of Delegated Regulation 2015/63
– Arguments of the parties
120 By its seventh ground, ABLV Bank submits that the General Court’s reasoning in relation to Article 17(3) and (4) of Delegated Regulation 2015/63 is vitiated by an error of law, since the possibility of reviewing ex ante contributions provided for in that provision shows that the General Court’s interpretation of Article 70(4) of Regulation No 806/2014 is incorrect.
121 The SRB claims that the seventh ground must be rejected as inadmissible or, in any event, as unfounded. The Commission contends that that ground is unfounded.
– Findings of the Court
122 After recalling, in paragraph 105 of the judgment under appeal, the wording of Article 17(3) and (4) of Delegated Regulation 2015/63, the General Court held, in paragraphs 107 and 108 of that judgment, that the interpretation of those provisions proposed by the appellant, according to which any contribution is subject to subsequent adjustments, was not supported by their wording and that the change in circumstances relied on by the appellant was not comparable to the accounting restatements or revisions mentioned in those provisions.
123 It is apparent that, by its seventh ground, ABLV Bank criticises the General Court not for having incorrectly rejected the application of Article 17(3) and (4) of Delegated Regulation 2015/63, but for having adopted an interpretation of Article 70(4) of Regulation No 806/2014 that is incompatible with Article 17(3) and (4) of Delegated Regulation 2015/63.
124 For the reasons given in paragraph 59 of this judgment, such a line of argument cannot succeed.
125 Accordingly, it is necessary, without there being any need to assess the admissibility of the seventh ground, to reject that ground as unfounded.
Eighth ground of appeal, alleging errors as regards the irrevocable payment commitments regime
– Arguments of the parties
126 By its eighth ground, ABLV Bank submits that the General Court distorted its arguments, in so far as it did not argue, in its written pleadings at first instance, that its ex ante contributions constituted irrevocable payment commitments.
127 Article 7(3) of Implementing Regulation 2015/81 shows that calculations must be made when an entity leaves the SRF and, therefore, that the interpretation of Regulation No 806/2014 adopted by the General Court is incorrect.
128 The SRB and the Commission contend that the eighth ground is unfounded.
– Findings of the Court
129 Article 7(3) of Implementing Regulation 2015/81 provides that the irrevocable payment commitments of an institution that no longer falls within the scope of Regulation No 806/2014 are to be cancelled and collateral backing these commitments is to be returned.
130 The General Court stated, in paragraph 111 of the judgment under appeal, that such commitments are of a different nature from ex ante contributions and are, for that reason, subject to a specific regime which cannot be applied, by analogy, to contributions such as those paid by ABLV Bank.
131 In that regard, it should be noted, first, that it is apparent from paragraphs 110 and 111 of that judgment that the General Court did not find that the appellant had claimed that its ex ante contribution for 2018 was made up of irrevocable payment commitments.
132 It is important, in particular, to point out that the General Court expressly rejected, in paragraph 111 of that judgment, the possibility of applying Article 7(3) of Implementing Regulation 2015/81 ‘by analogy’.
133 It follows that the argument alleging distortion of ABLV Bank’s written pleadings at first instance must be rejected as unfounded.
134 Second, it is true that the appellant correctly submits that Article 7(3) of Implementing Regulation 2015/81 means that, where an institution no longer falls within the scope of the SRM, this may entail the adoption, by the SRB, of certain measures relating to the ex ante contributions paid by that institution. However, it does not in any way criticise the General Court’s assessments relating to the differences distinguishing irrevocable payment commitments from other ex ante contributions and, on the contrary, emphasises that those differences are real.
135 In those circumstances, the appellant’s line of argument cannot lead to the conclusion that paragraph 111 of the judgment under appeal is vitiated by an error of law.
136 Accordingly, that ground must be rejected as ineffective in part and unfounded in part.
The ninth ground of appeal, alleging errors of law and a failure to issue a decision on the 2015 ex ante contributions
– Arguments of the parties
137 By its ninth ground, ABLV Bank alleges that the General Court made several errors in ruling on the appellant’s line of argument relating to the 2015 ex ante contributions.
138 In the first place, the General Court incorrectly equated those contributions with subsequent contributions, whereas the 2015 ex ante contributions are held in dedicated compartments until they are reimbursed to the institutions concerned.
139 In the second place, the General Court misinterpreted Article 8(2) of Implementing Regulation 2015/81.
140 Thus, it failed to take account of the fact that that provision did not provide that the reimbursement of the contributions in question must be made gradually over a period of eight years. In that context, it is not permissible that institutions which are no longer required to pay ex ante contributions are excluded from the benefit of reimbursement, since their situation in that regard results from the unjustified deferral of the reimbursement provided for. The absence of a calculation intended to settle the situation of such institutions is surprising, since, in such a situation, a calculation is provided for in Article 7(3) of Implementing Regulation 2015/81.
141 In the third place, the General Court incorrectly referred to Article 70(4) of Regulation No 806/2014, whereas the 2015 ex ante contributions were not collected under that regulation and the rules applicable to contributions of that type do not include comparable provisions.
142 In the fourth place, the position adopted by the General Court when examining the admissibility of the action contradicts the position adopted in the substantive assessment of the 2015 ex ante contributions.
143 In the fifth place, the General Court failed to recognise that, by referring to Article 12(2) of Delegated Regulation 2015/63, it accepts that the issue of changes in the course of the year is relevant.
144 The SRB and the Commission contend that the ninth ground is unfounded.
– Findings of the Court
145 After recalling, in paragraphs 115 and 116 of the judgment under appeal, that the 2015 ex ante contributions were received by the Member States and then transferred to the SRB, the General Court first of all held, in paragraph 117 of that judgment, that those contributions had, after their transfer, been put together and mixed with the other ex ante contributions in the SRF.
146 It then stated, in paragraphs 119 to 127 of that judgment, that Article 8(2) of Implementing Regulation 2015/81 could not serve as a basis for the appellant’s request for reimbursement. It noted, in that regard, that that provision does not establish a right to obtain a reimbursement and that it specifies only the method to be followed by the SRB in order to take into account, when calculating ex ante contributions, the 2015 ex ante contributions which were transferred to it by the Member States.
147 Lastly, the General Court held, in paragraph 128 of that judgment, that the 2015 ex ante contributions were now governed by Article 70(4) of Regulation No 806/2014, in the same way as the other contributions.
148 In that regard, it should be noted, first, that ABLV Bank’s line of argument does not establish that the General Court’s interpretation of Article 8(2) of Implementing Regulation 2015/81 in paragraphs 120 to 127 of the judgment under appeal is vitiated by an error of law.
149 That provision states that, during the initial period, when calculating the ex ante contributions of each institution, the SRB is to take into account ex ante contributions raised by the Member States which have been transferred to the SRF by deducting them from the amount due from that institution.
150 As the General Court observed in paragraphs 120 to 122 of the judgment under appeal, it follows both from the wording of Article 8(2) of Implementing Regulation 2015/81 and from the purpose of that implementing regulation, namely to specify the methodology for calculating the ex ante contributions to the SRF for each institution, that that provision cannot be read as establishing a right of each institution to be reimbursed for the amount of ex ante contributions received by the Member States which have been transferred to the SRF. That provision thus merely provides that a deduction from those contributions is to be included in the method for calculating ex ante contributions to the SRF.
151 Therefore, as the General Court pointed out in paragraph 123 of the judgment under appeal, an institution that is no longer required to pay ex ante contributions to the SRF cannot benefit from that deduction, since it no longer has that calculation method applied to it.
152 That interpretation of Article 8(2) of Implementing Regulation 2015/81 cannot be regarded as incompatible with Article 7(3) of that implementing regulation, in so far as that latter provision, which relates to the specific irrevocable payment commitments regime, has neither the purpose nor the effect of specifying the rules applicable to ex ante contributions received by the Member States which have been transferred to the SRF.
153 Second, in so far as ABLV Bank’s line of argument must be understood as alleging that the SRB’s practice of making the deduction provided for by Article 8(2) of Implementing Regulation 2015/81 gradually during the initial period provided for by Regulation No 806/2014 is improper, it must be held that such impropriety, even if it were established, should have been relied on against the decisions setting the ex ante contributions each year, in order to demonstrate that those decisions were based on a calculation method that was contrary to that provision.
154 By contrast, a line of argument based on the impropriety of such a practice is not capable of demonstrating that the General Court should have found that, where an institution no longer falls within the scope of the SRM, the SRB was required, in order to comply with that provision, to reimburse the ex ante contribution of that institution received by a Member State which was transferred to the SRF, outside of any annual calculation of the ex ante contributions due from that institution.
155 It follows that the arguments alleging that the SRB’s practice consisting of making the deduction provided for in Article 8(2) of Implementing Regulation 2015/81 gradually during the initial period provided for by Regulation No 806/2014 is improper must be rejected as ineffective.
156 Third, since Article 70(4) of that regulation refers to ‘the duly received contributions’ without distinguishing between the ex ante contributions which were collected directly by the SRB and the ex ante contributions transferred to it by the Member States, it cannot be held that the General Court erred in law in holding, in paragraph 128 of the judgment under appeal, that that provision applies to all of those ex ante contributions made available to the SRB.
157 Fourth, ABLV Bank’s arguments alleging contradictions between the General Court’s reasoning relating to the 2015 ex ante contributions and other parts of the reasoning of the judgment under appeal must be regarded as inadmissible, in accordance with the principles set out in paragraph 34 above, since the appellant does not clearly specify the nature of the contradictions of the grounds on which it intends to rely.
158 Fifth, given that it follows from the findings above that the General Court validly held, first, that Article 8(2) of Implementing Regulation 2015/81 does not provide for a right to reimbursement of ex ante contributions received by the Member States which were transferred to the SRF and, second, that Article 70(4) of Regulation No 806/2014 was applicable to those contributions, it appears that the General Court’s assessment, set out in paragraphs 117 and 128 of the judgment under appeal, that no distinction is made, within the SRF, between those contributions and the ex ante contributions directly collected by the SRB cannot be regarded as being necessary to justify the conclusion arrived at by the General Court in paragraph 129 of the judgment under appeal.
159 Since the conclusions relating to that assessment must, consequently, be regarded as having been provided for the sake of completeness, ABLV Bank’s arguments criticising those conclusions must be rejected as ineffective in accordance with the case-law referred to in paragraph 118 above.
160 In the light of the foregoing, the ninth ground must be rejected as inadmissible in part, ineffective in part and unfounded in part.
The tenth ground of appeal, alleging errors of law in the rejection of the sixth plea in law at first instance
– Arguments of the parties
161 By its tenth ground, ABLV Bank submits that the General Court’s assessment, set out in paragraphs 134 et seq. of the judgment under appeal, that the decision at issue did not infringe the principles of legal certainty and the protection of legitimate expectations is vitiated by an error of law, since, even if Article 70(4) of Regulation No 806/2014 were to have the meaning attributed to it by the General Court, that provision cannot be regarded as clear, given that, inter alia, there have been instances where ex ante contributions have been reimbursed.
162 The SRB claims that the tenth ground must be rejected as inadmissible or, in any event, as unfounded. The Commission also argues that the present ground is unfounded.
– Findings of the Court
163 In paragraphs 136 to 138 of the judgment under appeal, the General Court held that the SRB had not infringed the principles of legal certainty and of the protection of legitimate expectations. It justified that assessment by finding that the decision at issue was foreseeable, in so far as it was based on Article 70(4) of Regulation No 806/2014, which constitutes a clear and precise provision which does not contain any exception or mitigation.
164 That assessment by the General Court cannot be regarded as vitiated by an error of law since, as the General Court pointed out in paragraph 136 of the judgment under appeal and as recalled in paragraphs 54 and 55 of this judgment, it is apparent from the wording itself of Article 70(4) of Regulation No 806/2014 that duly received ex ante contributions cannot be reimbursed.
165 In addition, although the appellant submits that the General Court failed to take account of provisions of EU law which provide that the SRB must, in certain situations, reimburse ex ante contributions, it should be recalled that it is apparent from the examination of the first, third, seventh, eighth and ninth grounds of the present appeal that ABLV Bank’s line of argument relating to Article 17(3) and (4) of Delegated Regulation 2015/63, Article 7(3) and Article 8(2) of Implementing Regulation 2015/81 and Article 7 of Delegated Regulation 2017/2361 is not such as to show that such a reimbursement obligation exists.
166 Consequently, the tenth ground must be rejected as unfounded.
The eleventh ground of appeal, alleging errors of law in the rejection of the seventh plea in law at first instance
– Arguments of the parties
167 By its eleventh ground, ABLV Bank submits that the General Court adopted a ‘radical and extreme’ interpretation of the relevant provisions, thus infringing the principle of proportionality. It also erred in finding that the SRB had no discretion.
168 In addition, ABLV Bank challenges the General Court’s rejection, in paragraph 152 of the judgment under appeal, of the line of argument explained in paragraph 23 of the application as inadmissible. It maintains that that line of argument was sufficiently precise to be admissible, and did not require a detailed analysis of the example relied on in support of it.
169 The SRB and the Commission submit that the eleventh ground is unfounded.
– Findings of the Court
170 In paragraphs 142 to 152 of the judgment under appeal, the General Court rejected all of the arguments based on the principle of proportionality put forward by the appellant. In particular, it noted, in paragraph 147 of that judgment, first, that the SRB had no discretion when applying Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63 and, second, that ABLV Bank did not raise any plea of illegality against those provisions.
171 It should be noted at the outset that it follows from the findings relating to the examination of the first and second grounds of the present appeal that the General Court was fully entitled to hold that the SRB was required, under Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63, to refuse the request for reimbursement submitted by the appellant. It follows, as the General Court stated in paragraph 147 of the judgment under appeal, that the SRB had no discretion in that regard.
172 In those circumstances, the General Court was justified in finding, in paragraphs 147 and 148 of the judgment under appeal, that the SRB’s lack of discretion means that it could not validly be criticised for having infringed the principle of proportionality by refusing that request, unless it argued that the provisions requiring it to give a ruling to that effect were invalid because they were incompatible with that principle.
173 It follows from the rejection of the fifth ground of the present appeal that the General Court did not distort the written pleadings at first instance in finding that the appellant had not raised such a plea of illegality.
174 Accordingly, it appears that the reasoning upheld by the General Court in paragraph 147 of the judgment under appeal was sufficient to justify the rejection of the seventh plea in law at first instance.
175 Therefore, ABLV Bank’s arguments challenging other elements of the General Court’s reasoning relating to the rejection of that seventh plea in law must be regarded as ineffective, in accordance with the case-law cited in paragraph 118 of the present judgment.
176 It follows that the eleventh ground must be rejected as ineffective in part and unfounded in part.
The twelfth ground of appeal, alleging errors of law in the rejection of the eighth and ninth pleas in law at first instance
– Arguments of the parties
177 By its twelfth ground, ABLV Bank submits that the General Court misapplied the maxim nemo auditur.
178 In order to apply that maxim, it is necessary not to determine whether Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63 were properly interpreted by the SRB, but to assess whether that body had itself unlawfully created the conditions it subsequently relied on. That was the case here, since the appellant’s loss of licence is the inevitable consequence of Decision SRB/EES/2018/09 issued by the SRB, which was outside of its competence and was unlawful. The SRB cannot rely on the fact that its decision has not been annulled, since it claims that its decisions of 23 February 2018 are not subject to judicial review.
179 In addition, the assessment in paragraph 172 of the judgment under appeal that the SRB’s unlawful conduct does not call into question the lawfulness of the decision at issue amounts to a repudiation of the maxim nemo auditur.
180 Moreover, the General Court did not address the ninth plea in law at first instance, which related to the contradictory nature of the conduct consisting of excluding an institution from a risk-covering scheme, while accepting the contribution determined on the basis of that institution’s risk profile.
181 The SRB and the Commission contend that the twelfth ground is unfounded.
– Findings of the Court
182 In paragraph 170 of the judgment under appeal, the General Court stated that no wrongful conduct could be attributed to the SRB in the present case since it had correctly applied Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63. The General Court added, in paragraph 171 of that judgment, that Decision SRB/EES/2018/09 of the SRB was not the subject of the action at first instance and therefore could not be used as a basis for establishing wrongful conduct by the SRB. Moreover, in paragraph 172 of that judgment, the General Court held that the plea alleging contradictory conduct on the part of the SRB was inoperative in so far as it did not seek to call into question the legality of the decision at issue.
183 As regards, in the first place, the General Court’s assessment of the merits of ABLV Bank’s eighth plea in law at first instance, it is true that, in so far as, by that plea, the appellant intended to rely on the alleged unlawfulness of Decision SRB/EES/2018/09 of the SRB, the findings set out in paragraph 170 of the judgment under appeal, relating to whether the decision at issue was consistent with Article 70(4) of Regulation No 806/2014 and Article 12(2) of Delegated Regulation 2015/63, were irrelevant.
184 By contrast, as the General Court observed in paragraph 171 of the judgment under appeal, it cannot be presumed, for the purposes of applying the maxim nemo auditur, that Decision SRB/EES/2018/09 of the SRB was unlawful where that decision has not been the subject of an action for annulment.
185 The fact, relied on by ABLV Bank, that the SRB considers that that decision does not constitute an act adversely affecting the appellant is irrelevant. It is apparent from paragraph 66 of the judgment of 6 May 2021, ABLV Bank and Others v ECB (C‑551/19 P and C‑552/19 P, EU:C:2021:369), that the final outcome of the resolution procedure, during which Decision SRB/EES/2018/09 of the SRB was adopted, could have been the subject of judicial review.
186 As regards, in the second place, the ninth plea in law put forward by ABLV Bank at first instance, it must be pointed out that the argument alleging that the general Court did not rule on that plea must be rejected, since the General Court expressly rejected that plea in paragraph 172 of the judgment under appeal.
187 Moreover, given that that paragraph concerns a plea alleging failure to have regard not to the maxim nemo auditur, but to the SRB’s supposed contradictory conduct, the criticism that the General Court, in that paragraph, incorrectly applied that maxim cannot succeed.
188 Consequently, the twelfth ground must be rejected as unfounded.
The thirteenth ground of appeal, alleging errors regarding whether the statement of reasons in the decision at issue is sufficient
– Arguments of the parties
189 By its thirteenth ground, ABLV Bank submits that the General Court misconstrued the scope of the obligation to state reasons by holding that the statement of reasons in the decision at issue could be inferred to be sufficient from the fact that an action was brought and that the General Court concluded that it was able to give a ruling.
190 The fact that the statement of reasons for the decision at issue is inadequate is illustrated by the fact that on several occasions the General Court referred to factors external to that decision as well as by the questions raised by it in the course of the proceedings. In particular, the claim that Article 70(4) of Regulation No 806/2014 is clear is contradicted by the reference, in one of those questions, to ‘reimbursement’ and by the fact that the General Court did not consider that it could rely on the wording of that provision.
191 The SRB and the Commission contend that the thirteenth ground is unfounded.
– Findings of the Court
192 In paragraph 178 of the judgment under appeal, the General Court held that the SRB had specified, in the statement of reasons for the decision at issue, the matters of fact and law which were of essential importance. The General Court also found that that decision had enabled ABLV Bank to ascertain the reasons for that decision and enabled the EU judicature to review the lawfulness of that decision.
193 As the General Court pointed out in paragraph 176 of the judgment under appeal, it is apparent from the settled case-law of the Court of Justice that, while the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review, that statement of reasons must, however, be adapted to the nature of the act at issue and to the context in which it was adopted. From that point of view, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the 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, in the light of the interest which the addressees of the measure may have in obtaining explanations (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 122 and the case-law cited).
194 It must be stated that, in paragraph 178 of the judgment under appeal, the General Court applied the criteria resulting from that settled case-law in order to assess whether the decision at issue contained a sufficient statement of reasons. In particular, the General Court was fully entitled to take account of the fact that the statement of reasons for that decision had enabled the appellant to defend its rights and the EU judicature to review the lawfulness of that decision.
195 Furthermore, since, in accordance with that settled case-law, there is no requirement that the statement of reasons for a decision be exhaustive, the fact that the General Court took account, in its reasoning, of the factors which explained that statement of reasons and that it led to an investigation designed to clarify that statement of reasons is not such as to call into question the General Court’s assessment set out in paragraph 178 of the judgment under appeal.
196 Accordingly, the thirteenth ground must be rejected as unfounded.
Costs
197 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
198 Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
199 Since the SRB and the Commission have applied for costs to be awarded against ABLV Bank and the latter has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the SRB and the Commission.
On those grounds, the Court (First Chamber) hereby:
1. Dismisses the appeal;
2. Orders ABLV Bank AS, in liquidation, to bear its own costs and to pay those incurred by the Single Resolution Board (SRB) and the European Commission.
Arabadjiev | Bay Larsen | Kumin |
Delivered in open court in Luxembourg on 29 September 2022.
A. Calot Escobar | | A. Arabadjiev |
Registrar | | President of the First Chamber |