# C_2022418EN.01000701.xml

| 31.10.2022 | EN | Official Journal of the European Union | C 418/7 |
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31.10.2022

EN

Official Journal of the European Union

C 418/7

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Judgment of the Court (Grand Chamber) of 13 September 2022 (request for a preliminary ruling from the Ustavno sodišče Republike Slovenije — Slovenia) — Banka Slovenije

(Case C-45/21) (1)

(Reference for a preliminary ruling - European System of Central Banks - National central bank - Directive 2001/24/EC - Reorganisation and winding up of credit institutions - Compensation for damage resulting from the adoption of reorganisation measures - Article 123 TFEU and Article 21.1 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank - Prohibition of monetary financing of Member States in the euro area - Article 130 TFEU and Article 7 of that protocol - Independence - Disclosure of confidential information)

(2022/C 418/09)

Language of the case: Slovenian

Referring court

Ustavno sodišče Republike Slovenije

Parties to the main proceedings

Applicant: Banka Slovenije

Other party: Državni zbor Republike Slovenije

Operative part of the judgment

| 1. | Article 123(1) TFEU and Article 21.1 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank must be interpreted as not precluding national legislation which provides that a national central bank belonging to the European System of Central Banks is liable, from its own funds, for damage suffered by former holders of financial instruments cancelled by it pursuant to reorganisation measures, within the meaning of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions, ordered by that central bank, where it appears, during subsequent court proceedings, that either that cancellation was not necessary in order to ensure the stability of the financial system, or that those former holders of financial instruments suffered greater losses as a result of that cancellation than they would have suffered in the event of the insolvency of the financial institution concerned, to the extent that the central bank in question is held liable only where it or the persons whom it authorised to act on its behalf acted in serious breach of their duty to exercise due care; |
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1.

Article 123(1) TFEU and Article 21.1 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank must be interpreted as not precluding national legislation which provides that a national central bank belonging to the European System of Central Banks is liable, from its own funds, for damage suffered by former holders of financial instruments cancelled by it pursuant to reorganisation measures, within the meaning of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions, ordered by that central bank, where it appears, during subsequent court proceedings, that either that cancellation was not necessary in order to ensure the stability of the financial system, or that those former holders of financial instruments suffered greater losses as a result of that cancellation than they would have suffered in the event of the insolvency of the financial institution concerned, to the extent that the central bank in question is held liable only where it or the persons whom it authorised to act on its behalf acted in serious breach of their duty to exercise due care;

| 2. | Article 123(1) TFEU and Article 21.1 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank must be interpreted as precluding national legislation which provides that a national central bank belonging to the European System of Central Banks is liable, from its own funds, within predetermined limits, for damage suffered by former holders of financial instruments cancelled by it pursuant to reorganisation measures, within the meaning of Directive 2001/24, ordered by that central bank, only on condition that:
  first, those former holders are natural persons whose annual income is below a threshold defined by that legislation and
  second, the former holders waive entitlement to compensation for that damage by means of another legal remedy. |
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2.

Article 123(1) TFEU and Article 21.1 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank must be interpreted as precluding national legislation which provides that a national central bank belonging to the European System of Central Banks is liable, from its own funds, within predetermined limits, for damage suffered by former holders of financial instruments cancelled by it pursuant to reorganisation measures, within the meaning of Directive 2001/24, ordered by that central bank, only on condition that:

first, those former holders are natural persons whose annual income is below a threshold defined by that legislation and

second, the former holders waive entitlement to compensation for that damage by means of another legal remedy.

| 3. | Article 130 TFEU and Article 7 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank must be interpreted as precluding national legislation which provides that a national central bank belonging to the European System of Central Banks is liable for damage caused by the cancellation of financial instruments, pursuant to reorganisation measures, within the meaning of Directive 2001/24, ordered by that central bank, in such sums as might impair the bank’s ability to perform its tasks effectively and financed, in order of priority, by:
  the allocation to special reserves of all the profits made by that central bank as from a specified date;
  a levy on the general reserves of that central bank not exceeding 50 % of those reserves, and
  a loan, together with interest, from the Member State concerned. |
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3.

Article 130 TFEU and Article 7 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank must be interpreted as precluding national legislation which provides that a national central bank belonging to the European System of Central Banks is liable for damage caused by the cancellation of financial instruments, pursuant to reorganisation measures, within the meaning of Directive 2001/24, ordered by that central bank, in such sums as might impair the bank’s ability to perform its tasks effectively and financed, in order of priority, by:

the allocation to special reserves of all the profits made by that central bank as from a specified date;

a levy on the general reserves of that central bank not exceeding 50 % of those reserves, and

a loan, together with interest, from the Member State concerned.

| 4. | Article 33 of Directive 2001/24, Articles 44 to 52 of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions, and Articles 53 to 62 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC,
  must be interpreted as meaning that:
  the rules set out in those articles do not apply to information obtained or generated during the implementation of reorganisation measures, within the meaning of Directive 2001/24, which was not the subject of information or consultation procedures laid down in Articles 4, 5, 8, 9, 11 and 19 of Directive 2001/24. |
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4.

Article 33 of Directive 2001/24, Articles 44 to 52 of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions, and Articles 53 to 62 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC,

must be interpreted as meaning that:

the rules set out in those articles do not apply to information obtained or generated during the implementation of reorganisation measures, within the meaning of Directive 2001/24, which was not the subject of information or consultation procedures laid down in Articles 4, 5, 8, 9, 11 and 19 of Directive 2001/24.

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(1)  OJ C 128, 12.4.2021.

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