# C_2021206EN.01000601.xml

| 31.5.2021 | EN | Official Journal of the European Union | C 206/6 |
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31.5.2021

EN

Official Journal of the European Union

C 206/6

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Judgment of the Court (Fourth Chamber) of 25 March 2021 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — BT v Balgarska Narodna Banka

(Case C-501/18) (1)

(Reference for a preliminary ruling - Deposit-guarantee schemes - Directive 94/19/EC - Article 1(3)(i) - Article 7(6) - Article 10(1) - Concept of ‘unavailable deposit’ - Determination of unavailability of deposits - Competent authority - Depositor’s rights to compensation - Contractual clause contrary to Directive 94/19 - Principle of primacy of Union law - European System of Financial Supervision - European Banking Authority (EBA) - Regulation (EU) No 1093/2010 - Article 1(2) - Article 4(2)(iii) - Article 17(3) - EBA recommendation to a national banking authority on measures to comply with Directive 94/19 - Legal effects - Validity - Reorganisation and winding up of credit institutions - Directive 2001/24/EC - Article 2, seventh indent - Concept of ‘reorganisation measures’ - Compatibility with Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union - Liability of Member States for breach of Union law - Conditions - Sufficiently serious breach of EU law - Procedural autonomy of Member States - Principle of sincere cooperation - Article 4(3) TEU - Principles of equivalence and effectiveness)

(2021/C 206/08)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: BT

Defendant: Balgarska Narodna Banka

Operative part of the judgment

| 1. | Article 7(6) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, must be interpreted as meaning that the depositor’s right to compensation which it provides for covers only the repayment, by the deposit-guarantee scheme, of deposits which are unavailable to that depositor, up to the amount laid down in Article 7(1a) of that directive, as amended by Directive 2009/14, following a finding of unavailability, by the competent national authority, of deposits held by the credit institution concerned, in accordance with Article 1(3)(i) of that directive, as amended by Directive 2009/14, so that Article 7(6) of that directive, as amended by Directive 2009/14, cannot establish, to the benefit of that depositor, a right to compensation for damage caused by the late repayment of the guaranteed amount of all his or her deposits or by inadequate supervision by the competent national authorities of the credit institution whose deposits have become unavailable; |
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1.

Article 7(6) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, must be interpreted as meaning that the depositor’s right to compensation which it provides for covers only the repayment, by the deposit-guarantee scheme, of deposits which are unavailable to that depositor, up to the amount laid down in Article 7(1a) of that directive, as amended by Directive 2009/14, following a finding of unavailability, by the competent national authority, of deposits held by the credit institution concerned, in accordance with Article 1(3)(i) of that directive, as amended by Directive 2009/14, so that Article 7(6) of that directive, as amended by Directive 2009/14, cannot establish, to the benefit of that depositor, a right to compensation for damage caused by the late repayment of the guaranteed amount of all his or her deposits or by inadequate supervision by the competent national authorities of the credit institution whose deposits have become unavailable;

| 2. | The combined provisions of Article 1(3)(i), Article 7(6) and Article 10(1) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as precluding national legislation or a contractual clause according to which a deposit made with a credit institution whose payments have been suspended are to become due only following the withdrawal, by the competent authority, of the banking licence issued to that institution and on condition that the depositor has expressly requested the repayment of that deposit. In accordance with the principle of primacy of Union law, any national court hearing an action for damages allegedly caused by the repayment of the guaranteed amount of such a deposit outside the period laid down in Article 10(1) of that directive, as amended by Directive 2009/14, is required to set aside such national legislation or such a contractual clause for the purposes of deciding that action; |
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2.

The combined provisions of Article 1(3)(i), Article 7(6) and Article 10(1) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as precluding national legislation or a contractual clause according to which a deposit made with a credit institution whose payments have been suspended are to become due only following the withdrawal, by the competent authority, of the banking licence issued to that institution and on condition that the depositor has expressly requested the repayment of that deposit. In accordance with the principle of primacy of Union law, any national court hearing an action for damages allegedly caused by the repayment of the guaranteed amount of such a deposit outside the period laid down in Article 10(1) of that directive, as amended by Directive 2009/14, is required to set aside such national legislation or such a contractual clause for the purposes of deciding that action;

| 3. | Article 17(3) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC, read in the light of recital 27 thereof, must be interpreted as meaning that a national court must take into consideration a recommendation of the European Banking Authority adopted on the basis of that provision, with a view to resolving the dispute before it, in particular in the context of an action seeking to establish the liability of a Member State for damage caused to an individual as a result of the non-application or incorrect or insufficient application of Union law giving rise to the investigation procedure which led to the adoption of that recommendation. Individuals harmed by the breach of Union law established by such a recommendation, even if they are not the addressees of the recommendation, must be able to rely on it as a basis for establishing, before the competent national courts, the liability of the Member State concerned for the breach of Union law in question;
  Recommendation EBA/REC/2014/02 of the European Banking Authority of 17 October 2014 addressed to the Balgarska Narodna Banka (Bulgarian National Bank) and the Fund za garantirane na vlogovete v bankite (Bank Deposit Guarantee Fund) on the measures necessary to comply with Directive 94/19/EC is invalid, in so far as it equated the decision of the Balgarska Narodna Banka (Bulgarian National Bank) to place Korporativna targovska banka AD under special supervision and to suspend its obligations to a finding of unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14; |
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3.

Article 17(3) of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC, read in the light of recital 27 thereof, must be interpreted as meaning that a national court must take into consideration a recommendation of the European Banking Authority adopted on the basis of that provision, with a view to resolving the dispute before it, in particular in the context of an action seeking to establish the liability of a Member State for damage caused to an individual as a result of the non-application or incorrect or insufficient application of Union law giving rise to the investigation procedure which led to the adoption of that recommendation. Individuals harmed by the breach of Union law established by such a recommendation, even if they are not the addressees of the recommendation, must be able to rely on it as a basis for establishing, before the competent national courts, the liability of the Member State concerned for the breach of Union law in question;

Recommendation EBA/REC/2014/02 of the European Banking Authority of 17 October 2014 addressed to the Balgarska Narodna Banka (Bulgarian National Bank) and the Fund za garantirane na vlogovete v bankite (Bank Deposit Guarantee Fund) on the measures necessary to comply with Directive 94/19/EC is invalid, in so far as it equated the decision of the Balgarska Narodna Banka (Bulgarian National Bank) to place Korporativna targovska banka AD under special supervision and to suspend its obligations to a finding of unavailability of deposits, within the meaning of Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14;

| 4. | Article 2, seventh indent, 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, read in the light of Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a measure suspending payments applied by a national central bank to a credit institution as a reorganisation measure intended to preserve or restore the financial situation of that institution constitutes an unjustified and disproportionate interference with the exercise of the right of ownership of depositors with that institution if it does not respect the essential content of that right and if, having regard to the imminent risk of financial loss to which the depositors would have been exposed in the event of its bankruptcy, other less restrictive measures would have made it possible to achieve the same results, which is for the national court to verify; |
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4.

Article 2, seventh indent, 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, read in the light of Article 17(1) and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a measure suspending payments applied by a national central bank to a credit institution as a reorganisation measure intended to preserve or restore the financial situation of that institution constitutes an unjustified and disproportionate interference with the exercise of the right of ownership of depositors with that institution if it does not respect the essential content of that right and if, having regard to the imminent risk of financial loss to which the depositors would have been exposed in the event of its bankruptcy, other less restrictive measures would have made it possible to achieve the same results, which is for the national court to verify;

| 5. | Union law, in particular the principle of liability of the Member States for damage caused to individuals as a result of a breach of Union law, and the principles of equivalence and effectiveness, must be interpreted as meaning that:






  — | it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the prior annulment of the administrative act or omission which caused the damage, provided that such annulment, even if required in respect of similar claims based on a breach of national law, is not in practice precluded or very limited; |
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5.

Union law, in particular the principle of liability of the Member States for damage caused to individuals as a result of a breach of Union law, and the principles of equivalence and effectiveness, must be interpreted as meaning that:

—

it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the prior annulment of the administrative act or omission which caused the damage, provided that such annulment, even if required in respect of similar claims based on a breach of national law, is not in practice precluded or very limited;

| — | it precludes national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition that the damage caused by the national authority in question be intentional; |
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it precludes national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition that the damage caused by the national authority in question be intentional;

| — | it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition of proving actual and certain damage at the time when the action is brought, provided that that condition is not less favourable than those applicable to similar claims based on a breach of national law and is not so designed as to make it impossible or excessively difficult, having regard to the particular features of specific cases, to exercise such a right. |
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—

it does not preclude national legislation which makes the right of individuals to obtain compensation for damage suffered as a result of a breach of Union law subject to the condition of proving actual and certain damage at the time when the action is brought, provided that that condition is not less favourable than those applicable to similar claims based on a breach of national law and is not so designed as to make it impossible or excessively difficult, having regard to the particular features of specific cases, to exercise such a right.

| 6. | The principles of equivalence and effectiveness must be interpreted as meaning that they do not oblige a court ruling on a claim for damages formally based on a provision of national law relating to State liability for damage resulting from an administrative activity, but in support of which pleas in law alleging infringement of Union law as a result of such activity are raised, to regard that action of its own motion as being based on Article 4(3) TEU, in so far as that court is not prevented, by the applicable provisions of national law, to examine the pleas in law alleging infringement of Union law relied on in support of that action. |
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6.

The principles of equivalence and effectiveness must be interpreted as meaning that they do not oblige a court ruling on a claim for damages formally based on a provision of national law relating to State liability for damage resulting from an administrative activity, but in support of which pleas in law alleging infringement of Union law as a result of such activity are raised, to regard that action of its own motion as being based on Article 4(3) TEU, in so far as that court is not prevented, by the applicable provisions of national law, to examine the pleas in law alleging infringement of Union law relied on in support of that action.

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(1)  OJ C 364, 8.10.2018.

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