Banco Cooperativo Español v SRB (Contributions ex ante 2016) (Economic and monetary union - Banking union - Single Resolution Mechanism for credit institutions and certain investment firms (SRM) - Judgment) [2025] EUECJ T-499/20 (30 April 2025)
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Banco Cooperativo Español v SRB (Contributions ex ante 2016) (Economic and monetary union - Banking union - Single Resolution Mechanism for credit institutions and certain investment firms (SRM) - Judgment) [2025] EUECJ T-499/20 (30 April 2025)
URL: https://www.bailii.org/eu/cases/EUECJ/2025/T49920.html Cite as:
ECLI:EU:T:2025:429,
EU:T:2025:429,
[2025] EUECJ T-499/20
( 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 2016 ex ante contributions - Exclusion of certain liabilities from the calculation of the ex ante contributions - Article 5(1)(a), (b) and (f) of Delegated Regulation (EU) 2015/63 - Plea of illegality - Principle of non-retroactivity - Non-contractual liability - Sufficiently serious breach of a rule of law intended to confer rights on individuals - Unjust enrichment )
In Case T‑499/20,
Banco Cooperativo Español, S.A., established in Madrid (Spain), represented by D. Sarmiento Ramírez-Escudero and J. Beltrán de Lubiano Sáez de Urabain, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by C. De Falco, acting as Agent, and by B. Meyring, F. Fernández de Trocóniz Robles, T. Klupsch and S. Ianc, lawyers,
defendant,
supported by
European Commission, represented by D. Triantafyllou, A. Steiblytė and P. Němečková, acting as Agents,
intervener,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of A. Kornezov, President, D. Petrlík, K. Kecsmár (Rapporteur), S. Kingston and L. Spangsberg Grønfeldt, Judges,
Registrar: S. Jund, Administrator,
having regard to the written part of the procedure,
further to the hearing on 27 June 2024,
gives the following
Judgment
1 By its action, the applicant, Banco Cooperativo Español, S.A., seeks (i) under Article 263 TFEU, annulment of Decision SSRB/ES/2022/79 of the Single Resolution Board (SRB) of 7 December 2022 withdrawing Decision SRB/ES/2020/16 of the SRB of 19 March 2020 on the calculation of the 2016 ex ante contributions of Banco Cooperativo Español, S.A., Hypo Vorarlberg Bank AG (formerly Vorarlberger Landes- und Hypothekenbank AG) and Portigon AG to the Single Resolution Fund and calculating their 2016 ex ante contributions to the Single Resolution Fund ('the contested decision'), in so far as concerns the applicant, and (ii) under Article 268 TFEU, compensation for the damage allegedly caused to it as a result of that decision.
Background to the dispute
2 In Spain, the rural savings banks are cooperative credit institutions that provide financial services in rural areas.
3 The applicant is a credit institution created in 1990 by a number of rural savings banks, which are its shareholders. The applicant heads the network comprising those rural savings banks and provides banking services to individuals and businesses, including the rural savings banks. One of the principal services provided to the rural savings banks is cash pooling.
4 Accordingly, on 25 January 1994, the applicant and the rural savings banks concluded a cash pooling agreement ('the cash pooling agreement') intended to regulate the investment of the cash funds of the rural savings banks performed on their behalf by the applicant. First, that agreement provides that the rural savings banks transfer funds to the applicant to be invested on the interbank market or the money market. Second, because the applicant assumes in its own name the counterparty risk of all the funds invested, Clause 4 of that agreement contains a guarantee that the rural savings banks will bear any loss or liability arising from the activity performed by the applicant on their behalf on the interbank market.
5 The applicant also acts as an intermediary so that its members can access financing from the European Central Bank (ECB), by obtaining financing directly from the latter and passing it on to the rural savings banks on terms identical to those secured from the ECB.
6 Last, in order to have access to the long-term refinancing operations offered by the ECB, the applicant and a number of rural savings banks have set up a group on behalf of which the applicant participates in the various tender procedures conducted by the ECB. The applicant heads that group and is responsible for managing and distributing among its various members the funds, rights and obligations arising from those tender procedures.
7 As a result of the various activities that the applicant undertakes on behalf of the rural savings banks, its liabilities include a number of current liabilities that also appear as liabilities on the balance sheets of those rural savings banks by virtue of the guarantee that they give the applicant for the purposes of those activities.
8 By its decision SRB/ES/SRF/2016/06 of 15 April 2016 on the calculation of the 2016 ex ante contributions to the Single Resolution Fund, pursuant to Article 70(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), the SRB set the ex ante contributions to the Single Resolution Fund (SRF) ('the ex ante contributions') for 2016 ('the 2016 contribution period') of the institutions subject to the combined provisions of Article 2 and Article 67(4) of that regulation ('the institutions'), which included the applicant.
9 By its Decision SRB/ES/SRF/2016/13 of 20 May 2016 on the adjustment of the 2016 ex ante contributions to the SRF, supplementing Decision SRB/ES/SRF/2016/06, the SRB rectified the calculation of the ex ante contributions of the institutions for the 2016 contribution period.
10 On 19 March 2020, the SRB adopted Decision SRB/ES/2020/16 on the calculation of the applicant's ex ante contribution for the 2016 contribution period (the 'decision of 19 March 2020'), by which it withdrew and replaced the decisions referred to in paragraphs 8 and 9 above ('the initial decisions'). According to recitals 7 and 8 of the decision of 19 March 2020, that decision was intended to remedy the procedural irregularities and failures to state reasons affecting the initial decisions that the Court had identified in its judgments of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822); Hypo Vorarlberg Bank v SRB (T‑377/16, T‑645/16 and T‑809/16, EU:T:2019:823); and Portigon v SRB (T‑365/16, EU:T:2019:824).
11 It is apparent from, in particular, paragraphs 95 and 111 of the judgment of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822), that the Court annulled the first of the initial decisions in so far as it concerned the applicant because the requirement for authentication of that decision was not satisfied and because the procedure for its adoption had been conducted in clear breach of procedural requirements relating to its approval by the members of the executive session of the SRB and to the securing of that approval, a plea which the Court had raised of its own motion. On the other hand, the Court did not rule on the calculation of the amount of the applicant's ex ante contribution for the 2016 contribution period.
12 In the case that gave rise to the 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), the European Commission and the SRB applied to set aside the judgment of 23 September 2020, Landesbank Baden-Württemberg v SRB (T‑411/17, EU:T:2020:435), by which the General Court had annulled the SRB's decision on the calculation of the ex ante contributions for 2017 in so far as it concerned the applicant. In its judgment, the Court of Justice upheld the appeal of the SRB and the Commission as regards the requirement to authenticate that decision, but found that the decision did not contain an adequate statement of reasons and that the first plea in law put forward by Landesbank Baden-Württemberg at first instance was well founded (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 171).
13 On 7 December 2022, the SRB adopted the contested decision, by which it withdrew and replaced the decision of 19 March 2020. According to recitals 19 to 22 of the contested decision, its purpose was to remedy the failure to state reasons that the SRB had identified as a result of the 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), and of the orders of 3 March 2022, SRB v Portigon and Commission (C‑664/20 P, not published, EU:C:2022:161), and SRB v Hypo Vorarlberg Bank (C‑663/20 P, not published, EU:C:2022:162).
14 On 2 February 2023, the Autoridad de Resolución Ejecutiva (Executive Resolution Authority, Spain, 'FROB'), as the national resolution authority within the meaning of Article 3(1)(3) of Regulation No 806/2014, notified the contested decision to the applicant.
Contested decision
15 The contested decision consists of the body of the decision accompanied, in so far as concerns the applicant, by five annexes.
16 The body of the contested decision, in Sections 3 to 10, describes the process by which the ex ante contributions for the 2016 contribution period were calculated, which is applicable to all the institutions.
17 Specifically, in Section 6 of the contested decision, the SRB set the annual target level, referred to in Article 4 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation [No] 806/2014 with regard to ex ante contributions to the [SRF] (OJ 2015 L 15, p. 1), for the 2016 contribution period ('the annual target level').
18 The SRB explained that it had set that annual target level at one eighth of 1.05% of the amount of the covered deposits, calculated at year-end, of all the institutions in 2015, calculating that amount using the data provided by the institutions in accordance with Article 14(2) 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).
19 In Section 7 of the contested decision, the SRB set out the method to be followed for calculating the ex ante contributions for the 2016 contribution period. In that regard, it stated, in recital 95 of that decision, that, for that period, 60% of the ex ante contributions had been calculated on the 'national base', that is to say, on the basis of the data communicated by institutions authorised in the territory of the participating Member State concerned ('the national base'), in accordance with Article 103 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 in accordance with Article 4 of Delegated Regulation 2015/63. The remaining ex ante contributions (40%) were calculated using the 'banking union base', that is to say, on the basis of the data communicated by all the institutions authorised in the territory of all the Member States participating in the Single Resolution Mechanism (SRM) ('the union base' and 'the participating Member States'), in accordance with Articles 69 and 70 of Regulation No 806/2014 and with Article 4 of Implementing Regulation 2015/81.
20 In addition, the SRB calculated the ex ante contributions of the institutions, such as the applicant, in accordance with the following main stages.
21 In the first stage of the calculation of the ex ante contributions, the SRB, in accordance with point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, calculated the basic annual contribution of each institution, which is pro-rata to the amount of an institution's liabilities, excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of all the participating Member States. In accordance with Article 5(1) of Delegated Regulation 2015/63, the SRB deducted certain types of liabilities from the total liabilities of the institution to be taken into account in order to determine that contribution.
22 In the second stage of the calculation of the ex ante contributions, the SRB adjusted the basic annual contribution in line with the risk profile of the institution concerned, in accordance with point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014. It assessed that risk profile on the basis of the four risk pillars set out in Article 6 of Delegated Regulation 2015/63, which are composed of risk indicators. In order to classify the institutions according to their risk level, the SRB began by establishing bins for each risk indicator applied for the 2016 contribution period, into which the institutions were grouped in accordance with point 3 of 'Step 2' in Annex I to that delegated regulation. Institutions belonging to the same bin were assigned a common value for a given risk indicator, referred to as the 'discretised value'. By combining the discretised values for each risk indicator, the SRB calculated the 'risk-adjusting multiplier' of the institution concerned ('the adjusting multiplier'). By multiplying that institution's basic annual contribution by its risk-adjusting multiplier, the SRB obtained the institution's 'risk-adjusted basic annual contribution'.
23 Next, the SRB added together all the risk-adjusted basic annual contributions to obtain a 'common denominator' which was used to calculate the share of the annual target level to be paid by each institution.
24 Last, the SRB calculated the ex ante contribution of each institution by distributing the annual target level among all the institutions on the basis of the ratio between the risk-adjusted basic annual contribution, on the one hand, and the common denominator, on the other.
25 Annex I to the contested decision contains the applicant's individual sheet, consisting in the results of the calculation of its ex ante contribution. That sheet sets out the amount of the applicant's basic annual contribution and the value of its adjusting multiplier, on both the union base and the national base, stating for each risk indicator the number of the bin to which the applicant was assigned. That sheet also sets out certain data used to calculate the ex ante contributions of all of the institutions concerned, which the SRB determined by adding together or combining the individual data of all of those institutions. Finally, the sheet includes the data reported by the applicant in the reporting form for its ex ante contribution and which were used in the calculation of that contribution.
26 Annex II to the contested decision contains statistical data relating to the calculation of the ex ante contributions for each participating Member State, in summary and collective form. That annex indicates, inter alia, the total amount of the ex ante contributions payable by the institutions concerned for each of those Member States. Furthermore, the annex lists, for each risk indicator, the number of bins, the number of institutions belonging to each bin and the minimum and maximum values for those bins. In the case of the bins relating to the national base, those values are, for reasons of confidentiality, reduced or increased by a random amount, while the original distribution of institutions is maintained.
27 Annexes IIIa, IIIb and IVa to the contested decision examine observations submitted by institutions other than the applicant during the consultation procedure conducted by the SRB before the adoption of the contested decision.
28 Annex IVb to the contested decision, headed 'Evaluation of the submissions made by [the applicant] during the consultation process on the 2016 ex ante contributions to the [SRF] that include confidential information', examines the observations submitted by the applicant during the consultation process.
Forms of order sought
29 The applicant claims, in essence, that the Court should:
– annul the contested decision in so far as it relates to the applicant;
– in the alternative, annul the contested decision in so far as it has retroactive effect from the date of adoption of the decision of 15 April 2016;
– order the SRB to compensate it in respect of:
– the amount of default interest yielded by the sum of EUR 9 933 563.47 from 23 June 2016 up to the date on which the SRB pays the amounts owed, calculated at the applicable ECB refinancing rate plus 3.5 percentage points;
– in the alternative, solely in the event that the Court annuls the contested decision only in so far as it has retroactive effect, the amount of default interest yielded by the sum of EUR 9 933 563.47 from 23 June 2016 up to the date on which the contested decision could have effect, calculated at the applicable ECB refinancing rate plus 3.5 percentage points;
– in the further alternative, the amount corresponding to the yield that the applicant would have obtained if, in the public auction of 16 June 2016, it had acquired 10-year Spanish sovereign bonds with a value equivalent to its ex ante contribution for 2016, accruing from 23 June 2016 up to the date on which the SRB pays the amounts owed (or from 23 June 2016 up to the date of the contested decision, in the event that the Court finds that the contested decision is substantively lawful but is not capable of having retroactive effect);
– in the alternative, in the event that the Court upholds one or more pleas in law, maintain the effects of the contested decision until it is replaced or, at the very least, for a period of six months from the date on which the judgment annulling that decision becomes final.
32 The applicant puts forward three pleas in law. The first is a plea of illegality in respect of Article 5(1) of Delegated Regulation 2015/63. The second, raised in the event that the Court upholds the first plea in law, alleges infringement of the second paragraph of Article 103(2) of Directive 2014/59 and infringement of Article 70 of Regulation No 806/2014. The third alleges breach of the principle of legal certainty.
33 In the statement of modification, lodged under Article 86 of the Rules of Procedure of the General Court, the applicant stated that it maintained all the arguments set out in the application, while specifying that, as a result of the withdrawal of the decision of 19 March 2020 and its replacement by the contested decision, the forms of order sought by it had to be understood as referring to the contested decision instead of the decision of 19 March 2020.
34 The SRB contends that the three pleas in law raised are not well founded and questions the admissibility of the first two pleas in law.
The admissibility of the first and second pleas in law
35 By its first plea, the applicant disputes the legality of Article 5(1) of Delegated Regulation 2015/63, in so far as that provision, inter alia, failed to exclude from the calculation of the ex ante contributions certain liabilities generated in the course of the activities that the applicant undertakes on behalf of the rural savings banks, and, by its second plea, the applicant invokes the consequences in law of such illegality.
36 The SRB submits, in essence, that the first and second pleas in law are inadmissible on account of a lack of any legal interest in bringing proceedings, on the ground that the applicant is asking the Court to declare inapplicable a provision which was not applicable to the calculation of its ex ante contribution for the 2016 contribution period. It follows, according to the SRB, that the applicant has no legal interest in obtaining a declaration that the provision at issue is unlawful.
37 The applicant disputes the arguments of the SRB.
38 It is settled case-law that a plea of illegality raised indirectly under Article 277 TFEU, when challenging in the main proceedings the legality of another measure, is admissible only if there is a link between the contested measure and the provision forming the subject matter of the plea. Since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any act of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. It follows that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (judgments of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 56, and of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 33).
39 Furthermore, a plea of illegality is admissible only if it is likely, if successful, to procure an advantage for the party raising it (see judgment of 6 July 2022, MZ v Commission, T‑631/20, EU:T:2022:426, paragraph 40 and the case-law cited).
40 However, it is also clear from the case-law that Article 277 TFEU must be interpreted sufficiently broadly to enable effective judicial review of the legality of acts of general application adopted by the institutions in favour of persons excluded from direct actions against such acts. Thus, the scope of Article 277 TFEU must extend to acts of the institutions which were relevant to the adoption of the decision forming the subject matter of the action for annulment, in the sense that that decision must essentially be based on them, even if such acts did not formally constitute the legal basis of that decision. In addition, the rules of one single regime cannot, for the purposes of examining the objection of illegality, be artificially separated (see judgment of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 34 and the case-law cited).
41 Article 5(1) of Delegated Regulation 2015/63 lists the conditions necessary for a liability to be excluded from the calculation of ex ante contributions. In that regard, in points 18 and 19 of Annex IVb to the contested decision, the SRB explained why the liabilities generated in the course of the activities that the applicant undertakes on behalf of the rural savings banks could not be excluded from the calculation of the applicant's ex ante contribution under Article 5(1) of Delegated Regulation 2015/63.
42 By its plea of illegality, the applicant submits that if Article 5(1) of Delegated Regulation 2015/63 had to be interpreted as not permitting liabilities such as those generated in the course of the activities that it undertakes on behalf of the rural savings banks to be excluded from the calculation of its ex ante contribution, that provision would infringe Article 103(2) of Directive 2014/59, Article 70(2) and (6) of Regulation No 806/2014, Article 16 of the Charter of Fundamental Rights of the European Union ('the Charter') and the principle of proportionality, since under those rules the Commission was required, at the time it adopted that delegated regulation, to ensure that the regime for excluding liabilities, established by Article 5(1) of that delegated regulation, enables such liabilities to be excluded from the calculation of ex ante contributions.
43 Accordingly, if the present plea of illegality were upheld, the SRB's task would be to re-examine its position on the applicant's request to exclude the liabilities concerned from the calculation of its ex ante contribution, and that of the Commission to take measures to ensure that the treatment of those liabilities was compliant with the higher-ranking rules referred to in paragraph 42 above, if necessary by broadening the scope of the exclusions established by Article 5(1) of Delegated Regulation 2015/63.
44 In those circumstances, it must be found that there is a direct legal connection between the contested decision and Article 5(1) of Delegated Regulation 2015/63, and that the applicant has a legal interest in obtaining a declaration that that provision is unlawful.
45 That is a fortiori the case since the line of argument put forward by the SRB, as set out in paragraph 36 above, would involve creating an artificial separation between rules belonging to the regime for calculating ex ante contributions established by Delegated Regulation 2015/63 and depriving Article 277 TFEU of its effectiveness, since the applicant would have no possibility of challenging the legality of a provision providing for the exclusion of certain liabilities from that calculation where the alleged illegality lies not in the existence of that exclusion but instead in the conditions to which that exclusion is subject (see, by analogy, judgment of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 42).
46 In the light of the foregoing, the plea of inadmissibility raised by the SRB must be rejected.
The first plea in law, alleging the illegality of Article 5(1) of Delegated Regulation 2015/63
47 The first plea, which has three parts, alleges that Article 5(1) of Delegated Regulation 2015/63 is unlawful in the light of (i) Article 103(7) of Directive 2014/59, (ii) Article 16 of the Charter and (iii) the principle of proportionality.
– The first part, relating to the illegality of Article 5(1) of Delegated Regulation 2015/63 in the light of Article 103(7) of Directive 2014/59
48 The applicant claims that the activities that it undertakes on behalf of the rural savings banks pose only a low level of risk, since the applicant has the benefit of guarantees from those banks under the cash pooling agreement. The Commission should therefore have included the liabilities associated with those activities among the liabilities referred to by Article 5(1) of Delegated Regulation 2015/63, which exempts certain liabilities from the basis of calculation of ex ante contributions, on pain of failing to comply with Article 103(7) of Directive 2014/59, which requires it to adopt a delegated act in order to specify the manner in which the ex ante contributions are to be adjusted in proportion to the risk profile of the institutions.
49 By not providing in Article 5(1) of Delegated Regulation 2015/63 for the exclusion of liabilities such as those described in paragraph 48 above, the Commission caused the liabilities associated with the activities that the applicant undertakes for the rural savings banks to be counted twice, because those banks also record a liability, in respect of the guarantee that they give to the applicant for the purposes of those activities.
50 That such double counting of liabilities may give rise to an infringement of Article 103(7) of Directive 2014/59 is borne out by the fact that the Commission established a number of exemptions in Article 5(1) of Delegated Regulation 2015/63 in order to prevent such double counting.
51 In that regard, the applicant relies on an 'obvious parallel' between, on the one hand, certain of its liabilities, generated in the context of the activities that it undertakes on behalf of the rural savings banks and, on the other, the liabilities that are excluded, first in Article 5(1)(a) of Delegated Regulation 2015/63, relating to intragroup liabilities, second, in Article 5(1)(b) of that regulation, relating to liabilities created by an institution which is a member of an institutional protection scheme ('IPS'), and, third, in Article 5(1)(f) of that regulation, relating to promotional loans.
52 When questioned at the hearing as to the scope of its arguments, the applicant stated that it was not pleading a breach of the principle of equal treatment but was instead referring only to the incompatibility of Article 5(1) of Delegated Regulation 2015/63 with Article 103(7) of Directive 2014/59.
53 The SRB, supported by the Commission, disputes the applicant's arguments.
54 It should be noted that, under Article 103(7) of Directive 2014/59, the Commission is empowered to adopt delegated acts in order to specify the notion of 'adjusting [ex ante] contributions in proportion to the risk profile of institutions'.
55 In the context of a delegated power under Article 290 TFEU, the Commission has broad discretion in the exercise of the powers conferred on it, in particular where it is called on to undertake complex assessments and evaluations (see, to that effect, judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 53 and the case-law cited).
56 That is the case in connection with the determination of the criteria for adjustment of the ex ante contributions in proportion to the risk profile pursuant to Article 103(7) of Directive 2014/59 (judgments of 20 December 2023, Landesbank Baden-Württemberg v SRB, T‑389/21, EU:T:2023:827, paragraph 106, and of 20 December 2023, Banque postale v SRB, T‑383/21, EU:T:2023:845, paragraph 153).
57 In that regard, it should be recalled that, as is apparent from recitals 105 to 107 of Directive 2014/59 and from recital 41 of Regulation No 806/2014, the specific nature of ex ante contributions consists in the fact that, according to an insurance-based logic, they ensure that the financial sector provides adequate financial resources to enable the SRM to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation (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 113).
58 In that context, and as is clear from recital 114 of Directive 2014/59, the EU legislature tasked the Commission with specifying, by delegated act, the manner in which the institutions' ex ante contributions to resolution financing arrangements are to be adjusted in proportion to their risk profile.
59 Similarly, recital 107 of Directive 2014/59 states that, in order to ensure a fair calculation of the ex ante contributions to national financing arrangements and provide incentives to operate under a less risky model, those contributions should take account of the degree of credit, liquidity and market risk incurred by the institutions.
60 It follows from the foregoing that the Commission was required to pursue two linked objectives when drawing up rules for adjustment of the ex ante contributions in proportion to the risk profile of the institutions: first, to ensure that account is taken of the different risks to which the activities of the banking or, more broadly, financial institutions give rise; and, second, to encourage those institutions to adopt less risky methods of operation.
61 As is apparent from the documents relating to the adoption of Delegated Regulation 2015/63, in particular those entitled 'JRC technical work supporting Commission second level legislation on risk based contributions to the (single) resolution fund' and 'Commission Staff Working Document: estimates of the application of the proposed methodology for the calculation of contributions to resolution financing arrangements', the drawing up of such rules for the adjustment of ex ante contributions in proportion to the risk profile of the institutions entailed complex assessments and evaluations on the part of the Commission, since it had to examine the different factors in the light of which various types of risk were perceived in the banking and financial sectors.
62 Having regard to the foregoing, the Commission enjoyed broad discretion when, under Article 103(7) of Directive 2014/59, it adopted the rules specifying the notion of 'adjusting [ex ante] contributions in proportion to the risk profile of institutions'.
63 In those circumstances, as regards the method for adjusting the basic annual contributions under Article 103(7) of Directive 2014/59, review by the Courts of the European Union must be limited to verifying whether the exercise of the discretion afforded to the Commission has been vitiated by a manifest error or a misuse of powers, or whether the Commission has manifestly exceeded the limits of that discretion (see, to that effect, judgment of 21 July 2011, Etimine, C‑15/10, EU:C:2011:504, paragraph 60).
64 Consequently, it is for the applicant to demonstrate that Article 5(1) of Delegated Regulation 2015/63 is vitiated by such defects because it does not exclude liabilities such as those generated in the context of the activities that the applicant undertakes on behalf of the rural savings banks from the calculation of its ex ante contribution.
65 In the first place, under Article 103(2) of Directive 2014/59 and Article 70(2) of Regulation No 806/2014, each institution is, in principle, subject to an obligation to pay ex ante contributions, and all its liabilities are to be taken into account, in principle, for the purposes of calculating those contributions, apart from own funds and covered deposits. Accordingly, any exception to that principle, such as one of those established in Article 5(1) of Delegated Regulation 2015/63, must be interpreted strictly (see, to that effect, and by analogy, judgment of 12 October 2017, Kamin und Grill Shop, C‑289/16, EU:C:2017:758, paragraph 20 and the case-law cited).
66 That approach corresponds to the insurance-based logic of the system of ex ante contributions, referred to in paragraph 57 above. According to that logic, all institutions, including those which supposedly have a relatively low probability of resolution in view of the liabilities they hold, benefit from their ex ante contributions through the stability of the financial system ensured by the SRF.
67 Furthermore, in accordance with Article 103(2) of Directive 2014/59 and Article 70(2) of Regulation No 806/2014, the ex ante contributions are adjusted in proportion to the institutions' risk profile. Article 103(7) of Directive 2014/59 sets out eight factors that the Commission must take into account when adopting the delegated act referred to in that article in order to specify the notion of 'adjusting [ex ante] contributions in proportion to the risk profile of institutions'. Although the 'risk exposure of the institution' is one of those factors, with the effect that the Commission had to take it into account when adopting Delegated Regulation 2015/63, that factor is only one of the eight criteria that the Commission must take into account when drawing up such an act.
68 On the other hand, there is nothing in Article 103(7) of Directive 2014/59 to suggest that the Commission is required to give precedence to one or more of the factors listed in that article, such as the institution's risk exposure. Nor does that provision specify the manner in which the Commission must take that exposure into account.
69 Moreover, although Article 103(7)(h) of Directive 2014/59 provides that, when adjusting ex ante contributions in proportion to the risk profile of the institutions concerned, the Commission must take into account the fact that the institution is part of an IPS, that provision makes no reference whatsoever to any other categories of commercial or contractual affiliation to be taken into consideration by the Commission in the delegated acts that it is empowered to adopt.
70 In the second place, the applicant cannot argue that the activities which it undertakes on behalf of the rural savings banks pose only a low risk.
71 In that regard, in respect of the analogy that the applicant draws with the exclusion under Article 5(1)(a) of Delegated Regulation 2015/63 for certain intragroup liabilities, it should be noted, first of all, that it is clear from recitals 8 and 9 of that regulation that the calculation of individual contributions would, in the case of groups, lead to the double counting of certain liabilities when determining the basic annual contribution of the different group entities, since the liabilities related to the agreements that the entities of the same group conclude with each other would form part of the total liabilities to be taken into consideration in determining the basic annual contribution of each entity in the group. The method of determining the basic annual contribution should therefore be further specified in the case of groups, in order to reflect the interconnectedness of the group entities and to avoid the double counting of intragroup exposures. In order to ensure a level playing field between entities which are part of a group and institutions which are members of the same IPS or which are permanently affiliated to the same central body, the same treatment should apply to the latter two categories. For the purpose of calculating the basic annual contribution of a group entity, the total liabilities to be taken into consideration do not include the liabilities arising from any contract concluded by that group entity with any other entity which is part of the same group. However, such exclusion is only possible where each group entity is established in the European Union, is included in the same consolidation on a full basis and is subject to an appropriate centralised risk evaluation, measurement and control procedure, and where there are no current or foreseen material practical or legal impediments to the prompt repayment of the relevant liabilities when due. The foregoing prevents liabilities from being excluded from the basis of calculation of the ex ante contributions if there are no guarantees that intragroup lending exposures would be covered in the event of a deterioration in the financial health of the group.
72 In that regard, the Court of Justice has noted that Article 5(1)(a) of Delegated Regulation 2015/63 did not seek to eliminate entirely all forms of double counting of liabilities and that it ruled out such a practice only in so far as there were sufficient guarantees that intragroup lending exposures would be covered where the financial health of the group deteriorated (judgment of 3 December 2019, Iccrea Banca, C-414/18, EU:C:2019:1036, paragraph 94).
73 The question is, therefore, whether or not there are sufficient guarantees, within the meaning of the case-law, that the lending exposures will be covered in the event of a deterioration in the financial health of the network comprising, in the present case, the applicant and the shareholder rural savings banks. In that regard, the applicant relies, inter alia, on Clause 4 of the cash pooling agreement, which provides that the rural savings banks 'jointly provide a guarantee against any loss' on its part as a result of the investments it makes on the interbank market using the funds received, and on the 'permanent and binding' nature of that agreement.
74 In that regard, it should be noted that the purportedly 'permanent and binding' nature of the cash pooling agreement cannot be established merely by reference to the fact that that agreement has not been modified since 1994. Even though any modification of the cash pooling agreement is subject to approval by the Banco de España (Bank of Spain), the fact remains that, according to Clause 5 of that agreement, any of the rural savings banks may withdraw unilaterally from that agreement, by giving written notice to the applicant's board of directors, with effect from expiry of the second month from the date on which that board receives the notice. By contrast, Article 113(7)(f) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1) lays down, inter alia, a requirement to give notice of at least 24 months before termination of an agreement creating an IPS.
75 Moreover, the applicant confirmed at the hearing that the network that it comprised together with the shareholder rural savings banks did not constitute a single consolidation on a full basis and was not subject to an appropriate centralised risk evaluation, measurement and control procedure, meaning that its situation differed both from that of groups, as is clear, in particular, from recital 9 of Delegated Regulation 2015/63, referred to in paragraph 71 above, and from that of IPSs (see, inter alia, Article 113(7) of Regulation No 575/2013 and paragraph 87 below). The applicant has not explained how, in the absence of such consolidation and centralised supervision, it is possible to verify and ensure that the funds available to the rural savings banks are sufficient to meet the liabilities covered by the guarantees arising, according to the applicant, from the cash pooling agreement.
76 In any event, the SRB is correct to state that Delegated Regulation 2015/63 provides for an exclusion of liabilities from the calculation of the ex ante contribution of each institution not on a case by case basis but only on the basis of certain categories of liabilities that are defined objectively, generally and in the abstract. As the SRB has noted, without being contradicted by the applicant, although networks of rural savings banks exist in more than one Member State, the contractual and regulatory conditions in which they operate can vary widely from one to another. Accordingly, the argument put forward by the applicant, in so far as it is based, inter alia, on the specific features of its individual situation supposedly resulting from the cash pooling agreement, cannot render Article 5(1) of Delegated Regulation 2015/63 unlawful.
77 The applicant has therefore failed to demonstrate that there were sufficient guarantees that the lending exposures relating to the activities undertaken by it on behalf of the rural savings banks would be covered in the event of a deterioration in the financial health of the network comprising, in the present case, itself and the shareholder rural savings banks.
78 In the third place, it should be noted that the applicant's arguments that there is 'an obvious parallel' between its situation and the situations referred to in Article 5(1)(a), (b) and (f) of Delegated Regulation 2015/63 cannot succeed.
79 First, it is clear from Article 5(1)(a) of Delegated Regulation 2015/63 and from recital 9 of that regulation, which are referred to in paragraph 71 above, that the intragroup liabilities arising from transactions entered into by an institution with an institution which is part of the same group can only be excluded from the calculation of ex ante contributions if the conditions listed in that article are met.
80 The concept of 'group' is defined in Article 2(1)(26) of Directive 2014/59 as meaning 'a parent undertaking and its subsidiaries'. The concepts of 'subsidiary' and 'parent undertaking' are, for their part, defined in Article 2(1)(5) and (6) of that directive, by reference to Article 4 of Regulation No 575/2013, which refers to Articles 1 and 2 of the Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1), which correspond, in essence, to Article 22(1) to (5) of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ 2013 L 182, p. 19). It follows from those definitions that the relationship of parent undertaking and subsidiary presupposes a form of control that involves the parent undertaking holding a majority of voting rights exercised by the shareholders or members within the subsidiary, a right to appoint or remove some of the directors or senior managers of that subsidiary or alternatively a dominant influence over that subsidiary (judgment of 3 December 2019, Iccrea Banca, C-414/18, EU:C:2019:1036, paragraphs 85 and 86).
81 That being the case, a relationship of parent undertaking and subsidiary cannot be demonstrated by the mere existence of economic relations which reflect a partnership between a number of institutions, where no one of those institutions controls the other members of the grouping that it comprises together with those institutions (see, to that effect, judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 87).
82 In the present case, the applicant has acknowledged (i) that none of the shareholder rural savings banks exercised effective control over it and could prescriptively determine its business conduct or management strategy and (ii) that it did not control the rural savings banks. Accordingly, as it acknowledged at the hearing, the applicant has not established that the commercial and contractual relations between it and the rural savings banks were characterised by the same degree of control as that existing in a group within the meaning of Article 5(1)(a) of Delegated Regulation 2015/63.
83 As regards the double counting of liabilities, with which the applicant takes issue, the Court of Justice has held, as recalled in paragraph 72 above, that Article 5(1) of Delegated Regulation 2015/63 did not seek to eliminate all forms of double counting of liabilities (see, to that effect, judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 94). Moreover, as noted in paragraph 74 above, the applicant has not shown that there were sufficient guarantees that the lending exposures would be covered in the event of a deterioration in the financial health of the network composed of the applicant together with the shareholder rural savings banks.
84 In addition, an analysis that takes account of the principles of equal treatment, non-discrimination and proportionality cannot justify any different outcome, since Delegated Regulation 2015/63 identified situations that have significant and specific features, directly linked to the risks inherent in the liabilities at issue (see judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 95 and the case-law cited).
85 Furthermore, in the judgment of 3 December 2019, Iccrea Banca (C‑414/18, EU:C:2019:1036), the Court of Justice held that Article 5(1) of Delegated Regulation 2015/63 did not confer any discretion on the competent authorities to exclude certain liabilities when adjusting the contributions that are the subject of Article 103(2) of Directive 2014/59 in proportion to risk, but rather listed precisely the conditions governing whether a liability could be so excluded.
86 Although, admittedly, the question referred for a preliminary ruling in the judgment of 3 December 2019, Iccrea Banca (C‑414/18, EU:C:2019:1036), did not concern the legality of Article 5(1) of Delegated Regulation 2015/63, the Court of Justice, after examining the legislative context, which comprised, inter alia, Directive 2014/59 and the principles of equal treatment, non-discrimination and proportionality, failed to identify any grounds for a broader interpretation of the exemptions set out in Article 5(1) of Delegated Regulation 2015/63. It therefore follows from that judgment that the manner in which the Commission exercised its delegated powers in that respect is, according to the Court of Justice, compliant with Article 103(7) of Directive 2014/59.
87 Second, Article 5(1)(b) of Delegated Regulation 2015/63 relates to institutions which are members of an IPS as referred to in Article 2(1)(8) of Directive 2014/59 and which have been allowed by the competent authority to apply Article 113(7) of Regulation No 575/2013, through an agreement entered into with another institution which is a member of the same IPS.
88 According to Article 2(1)(8) of Directive 2014/59, an IPS is an arrangement that meets the requirements laid down in Article 113(7) of Regulation No 575/2013. Article 113(7) of Regulation No 575/2013 defines an IPS as a 'contractual or statutory liability arrangement which protects those institutions and in particular ensures their liquidity and solvency to avoid bankruptcy where necessary'. That liability arrangement must satisfy the cumulative conditions set out in that provision which relate, in particular, to appropriate prudential supervision; the availability of systems for risk monitoring, classification and control and of the corresponding ability to exert influence; the accessibility of funds and the possibility for counterparties freely to transfer or reimburse own funds; the publication of certain consolidated or aggregated reports; the requirement that members must give advance notice of at least 24 months if they wish to end the IPS; a prohibition on any inappropriate creation of own funds; and a sufficiently broad and essentially homogeneous membership.
89 In the present case, the applicant has not demonstrated that requirements equivalent to the cumulative requirements laid down by Article 113(7) of Regulation No 575/2013 exist in the context of the relations between it and the rural savings banks.
90 Third, the same is true of the purported parallel between the applicant's situation and the situation referred to in Article 5(1)(f) of Delegated Regulation 2015/63, relating to promotional loans granted by promotional banks.
91 Article 5(1)(f) of Delegated Regulation 2015/63 provides that the calculation of ex ante contributions excludes 'in case of institutions operating promotional loans, the liabilities of the intermediary institution towards the originating or another promotional bank or another intermediary institution and the liabilities of the original promotional bank towards its funding parties in so far as the amount of these liabilities is matched by the promotional loans of that institution'.
92 According to Article 3(28) of Delegated Regulation 2015/63, 'Promotional loan' means a 'loan granted by a promotional bank or through an intermediate bank on a non-competitive, [not-for-profit] basis, in order to promote the public policy objectives of central or regional governments in a Member State'.
93 In the present case, the applicant has not established that, in the context of the banking services that it offers to the rural savings banks in particular (see paragraphs 5 and 6 above), any loans to which those services relate corresponded to or resembled loans granted by a promotional bank or through an intermediate bank on a non-competitive, not-for-profit basis, in order to promote the public policy objectives of central or regional governments in a Member State.
94 In the fourth place, since the applicant criticises the Commission for not affording the SRB a margin of discretion to exclude situations resembling those set out in Article 5(1) of Delegated Regulation 2015/63, it should be recalled that, as is clear from paragraph 65 above, the exclusions in that article are exceptions from the principle that all liabilities are to be taken into account, apart from own funds and covered deposits, and that Article 5(1) of that delegated regulation must therefore be interpreted strictly. In those circumstances, the Commission cannot be criticised for not affording the SRB a margin of discretion enabling it to broaden the scope of those exclusions.
95 In the fifth place, it is necessary to reject the applicant's argument based on the fact that networks of cooperatives, such as that of which it forms part, are a recognised category in the context of the prudential banking legislation, in particular, Commission Delegated Regulation (EU) 2015/61 of 10 October 2014 to supplement Regulation (EU) No 575/2013 of the European Parliament and the Council with regard to liquidity coverage requirement for Credit Institutions (OJ 2015 L 11, p. 1). Although the specific features of such networks are taken into account in the context of the prudential supervision of institutions, that does not mean that they are taken into account to the same extent in the context of the financing of the SRM, since this is a matter of different rules that govern different aspects of the banking sector. The prudential legislation is intended to ensure, in particular, that financial institutions operate with sufficient resources to enable them to assume the risks inherent in their financial activities, whereas the purpose of the contributions to the SRF, under Regulation No 806/2014 and Delegated Regulation 2015/63, is to build up a fund which can, in certain circumstances, provide assistance in the event of resolution. In that regard, the Commission explained at the hearing, without being contradicted by the applicant on that point, that liabilities generated in the context of the operation of networks of cooperatives had not been excluded from the calculation of ex ante contributions under Article 5(1) of Delegated Regulation 2015/63 because, in the absence of a requirement for centralised supervision and of a sufficient level of transparency and control, the supervisors of such networks cannot satisfy themselves as to the financial health or long-term solvency of the entities in question, in contrast to the situation of IPSs and groups, as is apparent, in essence, from recital 9 of Delegated Regulation 2015/63, referred to in paragraph 71 above.
96 In the light of all the foregoing, the first part of the first plea in law should be rejected as unfounded.
– The second part, relating to the illegality of Article 5(1) of Delegated Regulation 2015/63 in the light of Article 16 of the Charter
97 The applicant submits that Article 5(1) of Delegated Regulation 2015/63 infringes Article 16 of the Charter in so far as it disproportionately restricts the applicant's right to freedom to conduct a business by preventing a significant amount of liabilities on its balance sheet from being excluded from the basis of calculation of its ex ante contribution, in a manner completely uncorrelated with its risk profile.
98 The SRB, supported by the Commission, disputes the applicant's arguments.
99 The protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition (see judgment of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 79 and the case-law cited).
100 However, the freedom to conduct a business is not an absolute prerogative. It may be subject to a broad range of interventions on the part of public authorities which may, in the public interest, limit the exercise of economic activity (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 45 and 46 and the case-law cited, and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraphs 80 and 81 and the case-law cited).
101 That circumstance is reflected, in particular, in the way in which EU acts should be assessed in the light of Article 52(1) of the Charter (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 47, and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 82).
102 In accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 48, and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 83).
103 In the present case, even assuming that the obligation imposed on the applicant to pay ex ante contributions without being able to benefit from the exclusion of certain of its liabilities from the basis of calculation of the basic annual contribution under Article 5(1) of Delegated Regulation 2015/63 amounts to an interference with its freedom to conduct a business, it is necessary first of all to point out that that provision was adopted on the basis of Articles 69 and 70 of Regulation No 806/2014 and of Articles 102 and 103 of Directive 2014/59, meaning that the inability to exclude the liabilities in question is provided for by law.
104 Moreover, as regards the applicant's argument that the condition relating to respect for the essence of freedom to conduct a business is not satisfied because the ex ante contribution that it has to pay equates to approximately 20% of the surplus for the year in respect of which that contribution is calculated, it should be noted that the obligation to pay ex ante contributions imposed on the applicant does not in any way prevent it – or undertakings engaged in commercial activities, in general – from carrying on such an activity. Furthermore, the measures at issue are temporary, since they apply only during the initial period established in Article 69(1) of Regulation No 806/2014. They therefore respect the essence of the freedom to conduct a business (see, by analogy, judgment of 12 July 2018, Spika and Others, C‑540/16, EU:C:2018:565, paragraph 38).
105 In addition, the obligation on the institutions concerned to contribute to the SRF pursues an objective of general interest, as is apparent from paragraph 57 above, that is to say, that of ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation.
106 In the light of the objective referred to in paragraph 105 above, the SRB has a duty to raise contributions from the institutions concerned in order to finance implementation of the SRM, which seeks to increase the stability of those institutions in the participating Member States and to prevent any crises from spilling over into non-participating Member States, in accordance with recital 12 of Regulation No 806/2014, thereby facilitating the functioning of the internal market as a whole.
107 In addition, as regards whether the exclusion of the applicant's situation from the scenarios laid down in Article 5(1) of Delegated Regulation 2015/63 is proportionate in the light of the objectives of general interest recognised by the European Union, the applicant submits that Article 5(1) fails to take into account the actual and specific objective set by the EU legislature, that the calculation method should reflect the risk profile of each institution.
108 In that regard, it should be noted that, as is clear from paragraph 105 above, the obligation on the institutions concerned to contribute to the SRF seeks to achieve a broader objective than that invoked by the applicant. It is in the context of that broader objective that Article 5(1) of Delegated Regulation 2015/63 seeks to prevent liabilities from being excluded from the basis of calculation of the ex ante contributions if there are no guarantees that the lending exposures in question will be covered in the event of a deterioration in the financial health of the institution concerned or of the group to which it belongs.
109 In addition, the line of argument put forward by the applicant fails to take into account the fact that an institution's risk profile is ascertained not only by means of Article 5(1) of Delegated Regulation 2015/63 but also by means of the risk indicators established in Articles 6 and 7 of that delegated regulation, which allow account to be taken of any aspects of its operation that reveal a low risk profile.
110 Last, the applicant has not established that less restrictive means existed which would have been as effective in achieving the objective pursued. In the light of the analysis set out, in particular, in paragraphs 70 to 93 above, the applicant's assertion that the Commission could equally well have chosen to exclude liabilities such as those associated with the activities that it undertakes on behalf of the rural savings banks, inasmuch as there are sufficient guarantees under the cash pooling agreement referred to in paragraph 4 above, cannot succeed, for the reasons set out in paragraphs 74 to 96 above, and is not, in any event, sufficient to demonstrate, in particular, that the institutions concerned are, as a result of that agreement, encouraged to adopt less risky methods of operation.
111 In those circumstances, the applicant has failed to demonstrate that Article 5(1) of Delegated Regulation 2015/63 infringed Article 16 of the Charter.
112 Consequently, the second part of the first plea in law must be rejected as unfounded.
– The third part, relating to the illegality of Article 5(1) of Delegated Regulation 2015/63 in the light of the principle of proportionality
113 The applicant considers that, by adopting Article 5(1) of Delegated Regulation 2015/63, the Commission infringed the principle of proportionality.
114 The SRB, supported by the Commission, disputes the applicant's arguments.
115 In that regard, it should be recalled that the principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate in the light of the aims pursued (judgments of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 165, and of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 142; see also, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 51).
116 It is clear from paragraph 62 above that the Commission enjoyed broad discretion when, under Article 103(7) of Directive 2014/59, it adopted the rules specifying the notion of 'adjusting [ex ante] contributions in proportion to the risk profile of institutions'.
117 In those circumstances, and in accordance with the case-law (see, to that effect, judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs 80, 81 and 91, and of 21 December 2022, Firearms United Network and Others v Commission, T‑187/21, not published, EU:T:2022:848, paragraphs 122 and 123 and the case-law cited), the Court's review of compliance with the principle of proportionality must be confined to examining whether Article 5(1) of Delegated Regulation 2015/63 is manifestly inappropriate in the light of the objective that the Commission is seeking to pursue, whether it manifestly exceeds the limits of what is necessary to achieve that objective and whether it causes disadvantages that are manifestly disproportionate to the objective pursued.
118 In the first place, as is apparent from paragraph 149 of the application, the applicant does not dispute that Article 5(1) of Delegated Regulation 2015/63 is capable of contributing to the achievement of the objective referred to in paragraph 57 above.
119 In the second place, as regards whether the measure laid down by Article 5(1) of Delegated Regulation 2015/63 is necessary, it should be recalled that that provision excludes amounts shown in the liabilities of institutions from the basis of calculation of the ex ante contributions where, for various reasons, those institutions pose a lower risk.
120 In that regard, it is clear from paragraphs 54 to 96 above that the applicant's complaint to the effect that the Commission incorrectly excluded liabilities associated with the activities that it undertakes for the rural savings banks from Article 5(1) of Delegated Regulation 2015/63 must be rejected.
121 In those circumstances, having regard to the broad discretion enjoyed by the Commission, the latter was entitled to consider that, for the purposes of achieving the objective referred to in paragraph 57 above, it was undesirable that the liabilities associated with the activities which the applicant undertakes for the rural savings banks should be excluded from the basic calculation of the ex ante contributions, under Article 5(1) of Delegated Regulation 2015/63, on the ground, in essence, that there were insufficient guarantees that the applicant's lending exposures, in connection with the activities which it undertakes on behalf of the rural savings banks, would be covered in the event of a deterioration in its financial health. Accordingly, that provision does not manifestly exceed the limits of what is necessary to achieve that objective.
122 In the third place, as is also apparent from paragraph 110 above, the applicant has not demonstrated that the objective referred to in paragraph 57 above could be achieved as effectively by means of a less onerous measure, that is to say, in the present case, the inclusion, in Article 5(1) of Delegated Regulation 2015/63, of the liabilities associated with the activities that it undertakes for the rural savings banks.
123 Furthermore, as regards the existence of any disadvantages manifestly disproportionate to the objective referred to in paragraph 57 above, it should be found that the assertion that Article 5(1) of Delegated Regulation 2015/63 jeopardises the function assumed by the applicant vis-à-vis the rural savings banks and deprives it of its economic raison d'être is not on its own sufficient to establish the existence of such disadvantages. There is nothing in the case file to suggest that the applicant's function was jeopardised by the fact that the liabilities in question were not excluded from the calculation of its ex ante contribution for the 2016 contribution period, in accordance with, in particular, Article 5(1) of Delegated Regulation 2015/63.
124 Accordingly, the applicant's arguments therefore fail to make clear why it was necessary, as the applicant claims, to seek greater coherence between the fields of prudential supervision and of resolution. In particular, the applicant did not draw any comparison between the objective pursued by the system of ex ante contributions and the provisions of the prudential supervision legislation.
125 Consequently, the third part of the first plea in law must be rejected as unfounded and, accordingly, that plea must be rejected in its entirety.
The second plea in law, alleging infringement of the second subparagraph of Article 103(2) of Directive 2014/59 and of Article 70 of Regulation No 806/2014
126 By the second plea, the applicant requests the Court, in the event that it upholds the first plea in law, to rule on the contested decision without taking account of the provisions of Article 5(1) of Delegated Regulation 2015/63. In particular, according to the applicant, it is necessary to rule on that decision by reference only to the criteria set out in the corresponding provisions of Directive 2014/59 and of Regulation No 806/2014.
127 Since the first plea in law has been rejected, the second plea in law must therefore also be rejected.
The third plea in law, alleging breach of the principle of legal certainty
128 The applicant claims that the contested decision infringes the principle of legal certainty inasmuch as the enacting terms of that decision provide that it is to take effect as of 15 April 2016, that is to say, as of the date on which the first of the initial decisions took effect. According to the principle of legal certainty, the starting point set for the period of validity of an act cannot be a date prior to its publication. Exceptionally, an EU act may have retroactive effect where the purpose to be achieved so demands, where the legitimate expectations of those concerned are duly respected and where the retroactive effect of the act is clearly apparent from the rule in question. In the present case, according to the applicant, those conditions are not satisfied.
130 The contested decision was adopted on 7 December 2022 and, in accordance with Article 4 of its enacting terms, it took effect as of 15 April 2016, that is to say, as of the date on which the first of the initial decisions came into effect, the latter decisions having themselves been replaced, likewise with effect from 15 April 2016, by the decision of 19 March 2020, as is apparent from paragraphs 10 and 13 above. The decision of 19 March 2020 also took effect as of 15 April 2016, in accordance with Article 3 of its enacting terms.
131 It is apparent from recitals 19 to 22 of the contested decision that its purpose was to remedy the failure to state reasons for the decision of 19 March 2020, identified by the SRB as a result of the 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), and the orders of 3 March 2022, SRB v Portigon and Commission (C‑664/20 P, not published, EU:C:2022:161), and SRB v Hypo Vorarlberg Bank (C‑663/20 P, not published, EU:C:2022:162), which relate to the calculation of the amount of the ex ante contributions for the 2017 contribution period.
132 Furthermore, as is apparent from recitals 6 to 8 of the decision of 19 March 2020, that decision was adopted in order to remedy the procedural defects and the failure to state reasons affecting the initial decisions, which the General Court had identified in its judgments of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822); Hypo Vorarlberg Bank v SRB (T‑377/16, T‑645/16 and T‑809/16, EU:T:2019:823); and Portigon v SRB (T‑365/16, EU:T:2019:824).
133 Accordingly, the contested decision and the judgments and orders referred to above did not change the scope of the applicant's obligation to pay an ex ante contribution for the 2016 contribution period, as it had been determined by the second of the initial decisions and as it had existed for that contribution period.
134 The calculation of the applicant's ex ante contribution for the 2016 contribution period and the amount of that contribution were the same in the second of the initial decisions, in the decision of 19 March 2020 and in the contested decision. In that regard, the only new elements introduced by the contested decision were to be found in a more extensive statement of reasons for the calculation of the applicant's ex ante contribution for the 2016 contribution period.
135 In recitals 188 to 194 of the contested decision, the SRB set out the reasons why it had set the temporal effects of the contested decision as described in paragraph 130 above. It stated, in particular, that it had done so in order to maintain the legal title under which the ex ante contributions of the institutions concerned had been collected in the 2016 contribution period and in order to preserve the validity of the payment of those contributions.
136 According to the case-law, the principle of legal certainty precludes an EU measure from taking effect from a point in time before its adoption, unless, exceptionally, the purpose to be achieved so demands and the legitimate expectations of those concerned are duly respected (see, to that effect, judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 45 and the case-law cited, and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 102 and the case-law cited).
137 In the first place, as regards whether the purpose to be achieved by the contested decision required it to take effect as of a date prior to the date of its adoption, it is necessary to have regard to the context in which that decision was taken.
138 In that regard, it is clear from paragraphs 10 to 13 above, and is not disputed by the applicant, that the judgment annulling the first of the initial decisions, in common with the judgments that led to withdrawal of the decision of 19 March 2020, neither released the applicant from the obligation to pay its ex ante contribution for the 2016 contribution period, in accordance with the applicable legal framework, nor revised downwards the amount of that contribution.
139 In those specific circumstances, if the SRB, when adopting the contested decision, had not given effect to it from the date on which the first of the initial decisions took effect, the contested decision could not have been effective over the period from 15 April 2016 to 7 December 2022, during which the applicant would have been relieved of its obligation to pay an ex ante contribution for the 2016 contribution period, even though it was subject to that obligation under Article 2, Article 67(4) and Articles 69 and 70 of Regulation No 806/2014. Similarly, over that period, the SRF would have been deprived of the funds from the applicant's ex ante contribution, in breach of those same provisions, which would have undermined the implementation of Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63 (see, by analogy, 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, paragraphs 176 and 177).
140 Consequently, the purpose of adopting the contested decision with effect from 15 April 2016 was to ensure that the applicability of the contested decision coincided with the time at which the applicant's obligation to pay an ex ante contribution for the 2016 contribution period had come into being, thereby avoiding an outcome contrary to the applicable legislation. In order to achieve that legitimate objective in the public interest, that decision had to take effect as of a date prior to the date of its adoption, that is to say, as of the same date as the decision of 19 March 2020 which it replaced.
141 In the second place, there is nothing to suggest that the applicant's legitimate expectations or those of third parties were not duly respected in the circumstances of the present case. The applicant cannot claim, first, that the judgment of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822), created a legitimate expectation that the contested decision would not take effect as of a date prior to the date of its adoption or, second, that the judgments which annulled the first of the initial decisions and led to withdrawal of the decision of 19 March 2020 were capable of creating a legitimate expectation that the applicant would be subject to payment of its ex ante contribution for the 2016 contribution period only from a later date, when a new decision had been adopted. Contrary to what is required by the case-law (see, to that effect, judgment of 16 September 2021, FVE Holýšov I and Others v Commission, C‑850/19 P, not published, EU:C:2021:740, paragraph 34 and the case-law cited), no institution has given the applicant precise, unconditional and consistent information to that effect (see paragraphs 133 and 134 above).
142 In addition, Article 266 TFEU requires the institution whose act has been annulled only to take the necessary measures to comply with the judgment annulling that act. Accordingly, that article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (see judgment of 11 December 2017, Léon Van Parys v Commission, T‑125/16, EU:T:2017:884, paragraph 49 and the case-law cited). In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and which constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is held in the operative part (see, to that effect, judgment of 29 November 2007, Italy v Commission, C‑417/06 P, not published, EU:C:2007:733, paragraph 50 and the case-law cited).
143 It follows that, in order to adopt a new decision compliant with the grounds constituting the essential basis of the operative part of the judgment of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822), the SRB had to respect the formal requirements that had been infringed during the procedure to adopt the contested decision. That fact was not capable of creating any expectation on the part of the applicant that the contested decision would not be effective as of a date prior to the date of the decision that it was intended to replace, or that the applicant would be subject to payment of the ex ante contribution for the 2016 contribution period only from a later date, when a new decision had been adopted (see, by analogy, judgment of 11 January 2024, Eurobolt and Others v Commission and Stafa Group, C‑517/22 P, EU:C:2024:9, paragraphs 55 and 56 and the case-law cited).
144 It should therefore be noted that, contrary to the applicant's claim, the contested decision did not infringe the principle of legal certainty, since the conditions referred to in paragraph 136 above are satisfied and since, in the present case, the SRB was entitled to set as the starting point of the contested decision a date prior to the date of its adoption, namely 15 April 2016, which corresponds to the date of the first of the initial decisions. Moreover, the same is true of the decision of 19 March 2020.
145 In the light of the foregoing, the third plea in law must be rejected as unfounded and, therefore, the claim for annulment submitted by the applicant must be rejected.
Claims for compensation
146 The applicant relies on the non-contractual liability of the European Union to claim the default interest allegedly payable to it by the latter since 23 June 2016, the date on which the applicant paid its ex ante contribution for the 2016 contribution period on the basis of the first of the initial decisions, which was annulled by the General Court, in so far as concerned the applicant, in its judgment of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822). In particular, the SRB is allegedly liable to the applicant for that interest because since that annulment occurred, it has not repaid the applicant its ex ante contribution. In other words, the SRB has been unjustly enriched. In those circumstances, the applicant bases its claims both on unjust enrichment and on Articles 268 and 340 TFEU.
148 As regards, first of all, the applicant's right to bring an action for unjust enrichment, suffice it to recall that actions for unjust enrichment do not fall under the rules governing non-contractual liability in the strict sense, which, to be invoked, require a number of conditions to be satisfied relating to the unlawfulness of the conduct imputed to the European Union, the fact of the damage alleged and the existence of a causal link between that conduct and the damage complained of. They differ from actions brought under those rules in that they do not require proof of unlawful conduct – indeed, of any form of conduct at all – on the part of the defendant, but merely proof of enrichment on the part of the defendant for which there is no valid legal basis and of impoverishment on the part of the applicant which is linked to that enrichment (see judgment of 23 November 2022, Westfälische Drahtindustrie and Others v Commission, T‑275/20, EU:T:2022:723, paragraph 48 and the case-law cited).
149 No such action for unjust enrichment can succeed in the present case because, as indicated in paragraphs 139 to 144 above, the applicant was liable, from 15 April 2016, to pay its ex ante contribution for the 2016 contribution period pursuant to Article 2, Article 67(4) and Articles 69 and 70 of Regulation No 806/2014, and remained so liable following delivery of the judgment of 28 November 2019, Banco Cooperativo Español v SRB (T‑323/16, EU:T:2019:822), given that that judgment did not result in the extinguishment of its obligation, in accordance with the provisions referred to above, to contribute to the SRF for the 2016 contribution period. In the present case, having regard to the date as of which the decision of 19 March 2020 and the contested decision took effect, that is to say, 15 April 2016, there was no duty on the SRB, in order to prevent unjust enrichment, to repay to the applicant all or part of its ex ante contribution for the 2016 contribution period.
150 It should also be borne in mind that the second paragraph of Article 340 TFEU provides that in the case of non-contractual liability, the European Union is to make good, in accordance with the general principles common to the laws of the Member States, any damage caused by its institutions or by its servants in the performance of their duties.
151 According to the case-law, the European Union may incur non-contractual liability under the second paragraph of Article 340 TFEU only if a number of conditions are fulfilled, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 5 March 2024, Kočner v Europol, C‑755/21 P, EU:C:2024:202, paragraph 117 and the case-law cited).
152 If any one of the conditions referred to in paragraph 151 above is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union (see judgments of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 165 and the case-law cited, and of 21 December 2023, United Parcel Service v Commission, C‑297/22 P, EU:C:2023:1027, paragraph 61 and the case-law cited).
153 In the present case, as is apparent from analysis of the pleas in law submitted in support of the claim for annulment, the applicant has failed to establish the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. Consequently, the present claims for compensation must also be rejected in so far as they have their basis in Articles 268 and 340 TFEU.
154 That conclusion is not called into question by the judgments of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), on which the applicant relied in its written pleadings and at the hearing respectively.
155 In paragraph 56 of the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), the Court of Justice recalled that it was clear from the case-law that, where sums of money had been received in breach of EU law, whether by a national authority or an institution, body, office or agency of the European Union, those sums of money had to be repaid and that refund had to bear interest covering the entire period from the date on which those sums were paid to the date of their repayment, which constituted the expression of a general principle of recovery of sums paid but not due.
156 Furthermore, as the Court of Justice held in paragraph 62 of the judgment of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), and as is clear, in essence, from paragraphs 103 and 104 of the judgment of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), where an institution, body, office or agency of the European Union is obliged, under the first paragraph of Article 266 TFEU, to pay interest when repaying a given sum of money, it has no discretion as to whether it is appropriate to pay that interest, so that the mere infringement of EU law consisting in the refusal to pay that interest is sufficient to establish the existence of a sufficiently serious breach of EU law capable of giving rise to non-contractual liability on the part of the European Union.
157 Unlike the applicants in the cases that gave rise to the judgments of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), by which the Court of Justice found definitively that the fines in question had been unduly paid, the applicant remained liable, from 15 April 2016, for the ex ante contribution levied on it for the 2016 contribution period, pursuant to Article 2, Article 67(4) and Articles 69 and 70 of Regulation No 806/2014, and the amount of that contribution had not been revised downwards (see paragraphs 138 and 149 above).
158 In addition, by contrast to the decisions at issue in the cases that gave rise to the judgments of 20 January 2021, Commission v Printeos (C‑301/19 P, EU:C:2021:39), and of 11 June 2024, Commission v Deutsche Telekom (C‑221/22 P, EU:C:2024:488), both the contested decision and the decision of 19 March 2020 came into effect, without any breach of the principle of legal certainty (see paragraph 144 above), as of a date, namely 15 April 2016, prior to the date on which they were adopted, with the result that no default interest would be payable for the period from 23 June 2016, the date on which the applicant paid its ex ante contribution for the 2016 contribution period, to the date on which one of those decisions was adopted.
159 The SRB was therefore not obliged to reimburse any of the ex ante contributions, together with interest on them.
160 In the light of the foregoing, the applicant's claims for compensation must be rejected.
Costs
161 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the SRB, in accordance with the form of order sought by the SRB.
162 In accordance with Article 138(1) of the Rules of Procedure, the Commission is to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders Banco Cooperativo Español, S.A. to bear its own costs and to pay those incurred by the Single Resolution Board (SRB);
3. Orders the European Commission to bear its own costs.
Kornezov
Petrlík
Kecsmár
Kingston
Spangsberg Grønfeldt
Delivered in open court in Luxembourg on 30 April 2025.
