Judgment;Abstract — ECLI:EU:T:2022:311
Date: 2022-06-01
Language of the case: Spanish
Court formation: Third Chamber, Extended Composition
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded
Origin: Spain

summary of the pleas in law on which the application is based. According to consistent case-law, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (see judgments of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94 and the case-law cited, and of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 92 (not published) and the case-law cited). Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgments of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 41 and the case-law cited; 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94 and the case-law cited; and of 24 September 2019, Netherlands and Others v Commission, T‑760/15 and T‑636/16, EU:T:2019:669, paragraph 114 and the case-law cited). 510 It must be noted that, as regards the existence of alternative solutions to resolution, the applicants confine themselves to a general reference to the expert report annexed to the application, which does not permit the Court to identify precisely the elements which might be regarded as forming the basis of that argument. 511 Accordingly, it must be held that that argument is merely asserted without being supported by any line of argument, contrary to the rule laid down in Article 76(d) of the Rules of Procedure, and that it must be declared inadmissible. 512 In the third place, the applicants submit that the resolution scheme disproportionately infringes their right to property in so far as they were not entitled to compensation. They take the view that the write-down of Banco Popular’s entire share capital without any recompense for the shareholders constitutes expropriation. The resolution scheme constitutes a disproportionate confiscatory measure. 513 It is necessary to conclude, as did the Commission, that that argument is premature. 514 In that regard, it must be noted that Article 15(1)(g) of Regulation No 806/2014 establishes the principle that no creditor will incur greater losses than would have been incurred if the entity under resolution had been wound up under normal insolvency proceedings. 515 In order to determine whether the shareholders and creditors would have benefited from better treatment if the entity concerned had been subject to normal insolvency proceedings, Article 20(16) of Regulation No 806/2014 provides that a valuation is to be carried out after resolution. According to Article 20(17) of Regulation No 806/2014, that valuation establishes whether there is a difference between the treatment that shareholders and creditors would have received if the institution had entered normal insolvency proceedings at the time when the decision on resolution action was taken and the actual treatment which they received under the resolution. 516 If, following that valuation, it is established that the shareholders or the creditors have incurred greater losses under the resolution than those they would have incurred in a winding-up under normal insolvency proceedings, Article 76(1) of Regulation No 806/2014 provides that the SRB may use the SRF to pay them compensation. 517 It follows that Regulation No 806/2014 establishes a mechanism to ensure fair compensation for the shareholders or creditors of the entity under resolution, in accordance with the requirements of Article 17(1) of the Charter. 518 In so far as any payment of such compensation is the outcome of the valuation referred to in paragraph 515 above, carried out after the adoption of the resolution scheme, the fact that the applicants did not obtain compensation on the date of the resolution scheme is irrelevant. 519 In the reply, the applicants argue that it is not possible to maintain that observance of the right to fair compensation, which may justify depriving the shareholders of their property rights, must be understood as being ensured if the no creditor worse off principle set out in Article 15(1)(g) of Regulation No 806/2014 has been satisfied. The difference in outcome between hypothetical insolvency proceedings in Spain and the resolution scheme is not relevant. The shareholders should be compensated having regard to the value of their shares when they were deprived of their right to property. Banco Popular had a liquidity problem but, according to valuation 1, was solvent at the date of resolution, with the result that the no creditor worse off principle is not relevant. 520 In that regard, it must be observed, as Banco Santander has done, that the application of the no creditor worse off principle does not derive from the resolution scheme, but from a future decision of the SRB following valuation 3. 521 Consequently, the applicants’ argument challenging the application of that principle in determining the parameters for calculating compensation must be regarded as ineffective. 522 In any event, contrary to what the applicants submit, the value of their investment must not be calculated having regard to the nominal value of their shares before the adoption of the resolution scheme, but rather corresponds to the value of that investment in a situation in which the resolution scheme was not adopted. It must be noted that, if the resolution scheme had not been adopted, Banco Popular, because it was failing or was likely to fail, would have been wound up under normal insolvency proceedings. 523 In that regard, in the field of State aid, the Court of Justice has held that the scale of losses suffered by shareholders of distressed banks will, in any event, be the same, regardless of whether those losses are caused by a court insolvency order because no State aid is granted or by a procedure for the granting of State aid which is subject to the prerequisite of burden-sharing (judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 75). 524 Furthermore, as regards securities, the amount of the compensation payable is calculated in relation to the true market value of those securities at the time of the adoption of the contested regulation, and not in relation to its nominal value or the amount the owner thereof hoped to receive at the time of its acquisition (see judgment of 13 July 2018, K. Chrysostomides & Co. and Others v Council and Others, T‑680/13, EU:T:2018:486, paragraph 314 and the case-law cited). 525 As already stated, Banco Popular’s balance sheet solvency noted in valuation 1 was not relevant at the date of resolution. On that date, Banco Popular’s value corresponded to its disposal value following the finding that it was failing or was likely to fail. 526 It follows that the applicants cannot argue that, on the date on which the resolution scheme was adopted, the write-down and conversion of Banco Popular’s capital instruments constituted an ‘expropriation’ without compensation, in so far as any compensation could be decided upon subsequently. 527 In the fourth place, the applicants argue that the resolution scheme is disproportionate in so far as it deprived the shareholders of their right to property without the shareholders first being heard. 528 In that regard, it must be noted that it follows from the analysis of the second plea in law, and in particular from paragraphs 234 and 235 above, that the Court has already held that the protection of the right to property enshrined in Article 1 of Protocol No 1 to the ECHR cannot be interpreted as meaning that the person concerned must, in all circumstances, have been able to make his or her point of view known to the competent authorities prior to the adoption of measures adversely affecting his or her right to property. 529 In addition, it must be noted that the applicants have not put forward any argument to explain how the SRB’s failure to hear the applicants prior to the adoption of the resolution scheme affected their right to property. 530 It follows from all of the foregoing, first, that Banco Popular was failing or likely to fail and that there were no alternative measures capable of preventing that situation, second, that, in the absence of resolution, Banco Popular would have been the subject of normal insolvency proceedings and, third, that Banco Popular’s shareholders had to bear the risk of their investments and that Regulation No 806/2014 provides for the possible payment of compensation in accordance with the no creditor worse off principle. Accordingly, it must be concluded that the decision to write down and convert Banco Popular’s capital instruments in the resolution scheme does not constitute an excessive and intolerable interference impairing the very substance of the applicants’ right to property, but must be regarded as a justified and proportionate restriction of their right to property, in accordance with the provisions of Article 17 and Article 52 of the Charter. 531 Furthermore, it must be noted that, in the application, the applicants do not claim an infringement of the freedom to conduct a business in the context of the eighth plea in law and do not raise any arguments in that regard. The only reference to the freedom to conduct a business is set out in the third plea in law, a plea of illegality. 532 Since the SRB chose to respond to the third and eighth pleas in law at the same time, the applicants put forward in the reply new arguments relating to the SRB’s infringement of the freedom to conduct a business, in that Banco Popular was sold without its shareholders, in the context of a general meeting, being heard or being able to adopt the commercial decisions which they considered appropriate in order to guarantee the viability of Banco Popular. 533 First, as the SRB points out, the applicants do not specify the rights guaranteed by the freedom to conduct a business, as referred to in paragraph 266 above, which were infringed. Second, as the Commission argues, the applicants, as minority shareholders in Banco Popular, do not carry on an economic activity in the banking sector and cannot therefore rely on the freedom to conduct a business in that regard. 534 In any event, like the right to property enshrined in Article 17 of the Charter, the freedom to conduct a business is not absolute and its exercise may be subject to restrictions under Article 52(1) of the Charter. In so far as it has been found that the resolution scheme does not constitute an excessive and intolerable interference impairing the very substance of the applicants’ right to property, it must be held that, for the same reasons, it does not infringe the very substance of the freedom to conduct a business. 535 It follows from all of the foregoing that the eighth plea must be dismissed as partly inadmissible and partly unfounded. The ninth plea in law, alleging infringement of Article 20(1) of Regulation No 806/2014 536 The applicants submit that valuation 2 could not be regarded as ‘fair, prudent and realistic’ within the meaning of Article 20(1) of Regulation No 806/2014. The applicants’ arguments are divided into four complaints aimed at challenging, first, the independence of the expert who carried out valuation 2, second, the coexistence of two ex ante valuations, third, the methodology used in valuation 2 and, fourth, the credibility of that valuation. 537 In the present case, it should be noted that the valuation of Banco Popular, carried out before the adoption of the resolution scheme, comprises two reports which are annexed to the resolution scheme. 538 Valuation 1, dated 5 June 2017, was prepared by the SRB under Article 20(5)(a) of Regulation No 806/2014 and had the objective of informing the determination whether the conditions for initiating a resolution procedure, as defined in Article 18(1) of Regulation No 806/2014, were met. 539 Valuation 2, dated 6 June 2017, was drawn up by Deloitte as an independent expert, in accordance with Article 20(10) of Regulation No 806/2014. 540 The resolution scheme states that, given the urgency, valuation 2 was carried out, in accordance with Article 20(10) of Regulation No 806/2014, with the purpose of assessing the value of the assets and liabilities of Banco Popular, providing an evaluation of the treatment that the shareholders and creditors would have received if Banco Popular had entered into normal insolvency proceedings and informing the decision to be taken on the shares or instruments of ownership to be transferred and the SRB’s understanding of what constitutes commercial terms for the purposes of the sale of business tool. 541 It must be recalled that, in valuation 2, Deloitte stated that it had relied on the requirements of Article 36 of Directive 2014/59 (corresponding to Article 20 of Regulation No 806/2014) and on Chapter 3 of the final draft of the Regulatory Technical Standards of the EBA No 2017/05 and No 2017/06 of 23 May 2017 on valuation for the purposes of resolution and on valuation to determine difference in treatment following resolution under Directive 2014/59 (‘the technical standards of the EBA’). 542 Article 36(15) of Directive 2014/59 authorises the EBA to develop draft regulatory technical standards to specify the criteria on the basis of which valuations carried out during a resolution procedure must be conducted. 543 Chapter 3 of the technical standards of the EBA relates to draft Regulatory Technical Standards No 2017/05 on valuation for the purposes of resolution (‘the regulatory technical standards’) and contains, inter alia, in accordance with Article 36(15) of Directive 2014/59, a draft Commission Delegated Regulation supplementing Directive 2014/59 with regard to regulatory technical standards specifying the criteria relating to the methodology for assessing the value of assets and liabilities of institutions or entities. 544 It must, in addition, be noted that, at the date of the adoption of the resolution scheme, the regulatory technical standards were not binding, since the second subparagraph of Article 5(2) of Regulation No 806/2014 provides that the SRB, the Council and the Commission are to be subject to the binding regulatory technical and implementing standards drawn up by the EBA when they have been adopted by the Commission. Those regulatory technical standards were incorporated into Commission Delegated Regulation (EU) 2018/345 of 14 November 2017 supplementing Directive 2014/59 with regard to regulatory technical standards specifying the criteria relating to the methodology for assessing the value of assets and liabilities of institutions or entities (OJ 2018 L 67, p. 8). 545 In Article 6.3 of the resolution scheme, the SRB stated that, in order to decide on the write-down and conversion of Banco Popular’s capital instruments, it had relied on valuation 2, as supplemented and corroborated by the results of the marketing process conducted by the FROB. 546 Since valuation 2 contains complex technical and economic assessments, it was necessary for the SRB to be allowed a broad discretion when it considered that valuation 2 constituted a valid basis for deciding on resolution actions. 547 Consequently, in accordance with the case-law cited in paragraphs 166 to 171 above, the review carried out by the Court is a limited review which is confined to verifying that there was no manifest error of assessment by the SRB when it considered that valuation 2 complied with the requirements of Article 20 of Regulation No 806/2014. It is for the applicants to adduce sufficient evidence to render valuation 2 implausible. – The first complaint, relating to the independence of the expert who carried out valuation 2 548 First, the applicants argue that Deloitte could not be regarded as an independent company on account of the existence of a conflict of interests, since the FROB had accused Deloitte of forgery in the file relating to the initial public offering of Bankia. 549 According to Article 20(1) of Regulation No 806/2014, the valuation must be carried out by a person independent from any public authority, including the SRB and the national resolution authority, and from the entity concerned. 550 The requirements regarding the independence of valuers are set out in Articles 37 to 41 of Delegated Regulation 2016/1075. Article 38 of Delegated Regulation 2016/1075 lays down three cumulative conditions which must be satisfied for the valuer to be deemed to be independent from any relevant public authority and the relevant entity. First, the valuer possesses the qualifications, experience, ability, knowledge and resources required and can carry out the valuation effectively without undue reliance on any relevant public authority or the relevant entity. Second, the valuer is legally separated from the relevant public authorities and the relevant entity. Third, the valuer has no material common or conflicting interest within the meaning of Article 41 of that delegated regulation. 551 It should be noted that the applicants do not claim that Deloitte did not possess the qualifications, experience, ability, knowledge and resources required to carry out the valuation effectively, within the meaning of the first condition laid down in Article 38 of Delegated Regulation 2016/1075. Nor do they argue that Deloitte was not legally separated from the relevant public authorities, namely the SRB and the FROB, and from Banco Popular, for the purposes of the second condition laid down in Article 38 of Delegated Regulation 2016/1075. 552 The applicants argue that there is a conflict of interest between the FROB and Deloitte, resulting from the existence of criminal proceedings in Spain implicating Deloitte, which relate to the alleged forgery of Bankia’s accounts and in which the FROB joined the proceedings as a civil party. The applicants state, however, that the FROB did not bring any charges against Deloitte or any of its associates in those proceedings. 553 If that argument is to be interpreted as meaning that the applicants dispute that Deloitte fulfilled the third condition laid down in Article 38 of Delegated Regulation 2016/1075, relying on the existence of a material common or conflicting interest within the meaning of Article 41 of that delegated regulation, it is sufficient to note that it is based on a misunderstanding of that provision. 554 According to Article 41(2) of Delegated Regulation 2016/1075, for the purposes of paragraph 1, an actual or potential interest is to be deemed material whenever, in the assessment of the appointing authority or such other authority as may be empowered to perform this task in the Member State concerned, it could influence, or be reasonably perceived to influence, the independent valuer’s judgement in carrying out the valuation. Paragraph 3 of that article states that interests in common or in conflict with the members of the entity or its creditors are to be relevant. 555 The applicants do not argue that Deloitte and Banco Popular have interests in common or in conflict and fail to explain how the fact that the FROB had joined criminal proceedings in which Deloitte was implicated in Spain as a civil party was capable of influencing Deloitte’s assessment of the value of Banco Popular. 556 Second, the applicants argue that Deloitte was not independent, since the SRB required it to draw up valuation 2 by applying the sale of business tool, without allowing it to assess which resolution tool was most appropriate to resolve Banco Popular’s liquidity crisis. 557 In that regard, it must be noted that Article 20(5) of Regulation No 806/2014 defines the objectives of the valuation depending on the resolution tool applied. In particular, Article 20(5)(f) of Regulation No 806/2014 defines the objectives of the valuation where the sale of business tool is applied; those objectives differ from the objectives referred to in Article 20(5)(d) and (e) of that regulation, relating to cases where either the bail-in tool, the bridge institution tool or the asset separation tool is applied. 558 Article 20(5)(b) of Regulation No 806/2014, which provides that, if the conditions for resolution are met, the purpose of the valuation is to inform the decision on the appropriate resolution action to be taken in respect of an entity, must be interpreted as meaning that the valuation must provide the SRB with the technical and economic information necessary to implement the resolution tool chosen by the SRB. 559 It does not follow from that provision that it is for the valuer to determine himself or herself which resolution tool is most appropriate. The decision on the choice of the resolution tool to be applied is taken by the resolution authority and not by the independent valuer. 560 Accordingly, the fact that the SRB took the view that the sale of business tool was best able to fulfil the objectives of the resolution and that the SRB appointed Deloitte to carry out a valuation meeting the objectives of that tool cannot be regarded as undermining Deloitte’s independence. 561 Therefore, the first complaint must be dismissed. – The second complaint, relating to the coexistence of two ex ante valuations 562 The applicants submit that Regulation No 806/2014 does not provide for the valuation report to be split into two documents drawn up by different authors. They add that the conclusions of valuation 2 conflict with those of valuation 1, which stated that Banco Popular was solvent and valued its assets at EUR 8.4 billion. 563 It should be noted that, on 5 June 2017, the SRB adopted valuation 1 pursuant to Article 20(5)(a) of Regulation No 806/2014, which had the objective of informing the determination whether the conditions for resolution or the conditions applicable to the write-down or conversion of capital instruments were met. In particular, the SRB stated that the purpose of valuation 1 was to help determine whether Banco Popular was failing or was likely to fail within the meaning of Article 18(1)(a) of Regulation No 806/2014. 564 Although the technical standards of the EBA, adopted on 23 May 2017, were not binding, they were available at the date of valuation 2. In valuation 2, Deloitte expressly states that it complied with the requirements of the technical standards of the EBA. 565 The introductory summary of the technical standards of the EBA states that it is necessary to draw a distinction between two types of pre-resolution valuations, valuation 1 carried out under Article 36(4)(a) of Directive 2014/59, which is the equivalent of Article 20(5)(a) of Regulation No 806/2014, and valuation 2 carried out under Article 36(4)(b) to (g) of Directive 2014/59, which corresponds to Article 20(5)(b) to (g) of Regulation No 806/2014. 566 Recital 1 of the regulatory technical standards, reproduced in recital 1 of Delegated Regulation 2018/345, recalls that distinction between, on the one hand, an initial valuation assessing whether the conditions for the write-down and conversion of capital instruments or the condition for resolution have been met, and, on the other hand, a subsequent valuation forming the basis for the decision to apply one or more resolution tools. The regulatory technical standards establish different criteria for the conduct of valuation 1 and valuation 2. 567 With regard to valuation 1, the regulatory technical standards state that the relevant criterion is whether the entity is failing or is likely to fail, which corresponds to the condition laid down in Article 18(1)(a) of Regulation No 806/2014. 568 However, it must be observed that, according to the second subparagraph of Article 18(1) of Regulation No 806/2014, the assessment of that condition is to be made by the ECB or the SRB. 569 Accordingly, in view of the distinct objectives of valuation 1 and valuation 2, there was justification for the first to be carried out by the SRB and the second to be conducted by the independent valuer, Deloitte. 570 Furthermore, it should be noted that the applicants confine themselves to relying on the fact that Regulation No 806/2014 does not expressly provide for a distinction between those two valuations, but they do not state which provision was infringed. 571 As regards the applicants’ argument that the conclusions of valuations 1 and 2 were contradictory, it is sufficient to note that it is ineffective. 572 Valuation 1, adopted on 5 June 2017, which was aimed at determining whether Banco Popular was failing or likely to fail, in order to establish whether the conditions for initiating a resolution procedure or for the write-down or conversion of capital instruments had been met, became obsolete following the assessment carried out by the ECB on 6 June 2017 that Banco Popular was failing or likely to fail. 573 It is true that, in valuation 1, the SRB stated that, at the reference date for its assessment, that is to say 31 March 2017, Banco Popular was solvent. However, it should be noted, first, that the ECB relied on the significant withdrawals of deposits from Banco Popular from April and May 2017 and on its inability to generate further liquidity, in order to conclude that, on 6 June 2017, Banco Popular was failing or likely to fail. Second, the ECB’s conclusion was based on the fact that Banco Popular was unable to pay its debts or other liabilities as they fell due, for the purposes of Article 18(4)(c) of Regulation No 806/2014, and not on the fact that Banco Popular was balance sheet insolvent. Thus, as the SRB rightly points out, the conclusions in valuation 1 were no longer relevant on the date of the resolution. 574 Furthermore, it should be noted that differences in the conclusions of valuation 1 and valuation 2 are explained by the fact that, since they have different objectives, they are based on different assessment criteria set out in the technical standards of the EBA. Thus, according to the technical standards of the EBA, valuation 1 seeks primarily to determine whether the total value of the entity’s assets exceeds the value of its liabilities, in other words whether the entity is balance sheet solvent, whereas valuation 2 must be based on the economic value and not the book value of the entity. 575 Accordingly, the second complaint must be dismissed. – The third complaint, relating to the method used in valuation 2 576 The applicants argue that the valuation of the institution should be carried out not as if it were an undertaking being wound up, but as if it were a going concern, and that its market value should be determined as an institution which will continue to perform its financial activities. They argue that valuation 2 is based on an incorrect methodology, which disregards any capacity of Banco Popular to generate future profits. 577 It must be observed that that argument is based on a misunderstanding of the methodology used in valuation 2. Valuation 2 comprises two parts, the first containing a provisional valuation of Banco Popular and the second consisting of a simulated winding up scenario. The first part aims to determine the economic value of Banco Popular in the context of the application of the sale of business tool. The second part seeks to determine whether the shareholders and creditors would have received better treatment if Banco Popular had been wound up under normal insolvency proceedings under Spanish law. 578 The SRB adopted the resolution scheme taking into account the first part of valuation 2, containing the valuation of Banco Popular’s assets and liabilities in the strict sense. By contrast, since Deloitte stated that it did not have all the necessary information or sufficient time to make more than a merely indicative estimate at that stage, the second part of valuation 2 is equivalent to an initial simulation, pursuant to Article 20(9) of Regulation No 806/2014. Valuation 3, which is the final valuation seeking to determine whether the shareholders and creditors would have received better treatment if Banco Popular had been wound up under normal insolvency proceedings, under Article 20(16) of Regulation No 806/2014, was carried out after the resolution. 579 It is Deloitte’s use of the liquidation value contained in the second part of valuation 2 which is contested by the applicants. In the first part, Deloitte took into account Banco Popular’s disposal value. 580 As regards the methodology used, Deloitte stated in valuation 2 that the scenario used to determine the economic value was the sale of the bank under the sale of business tool. In accordance with Article 20(5)(f) of Regulation No 806/2014, the purpose of the valuation was to inform the decision to be taken in respect of the assets, rights, liabilities or instruments of ownership to be transferred, and the SRB’s understanding of what constitutes commercial terms for the purposes of Article 24(2) (b) of that regulation. 581 Deloitte explained that ‘[its] economic valuation [sought] to provide an estimate of the value which may be offered for the whole bank by a potential purchaser, following an open, fair, and competitive auction process (a “disposal value”, as required by Article 11 of the … Regulatory Technical Standards …)’. 582 It is apparent from recital 6 of the regulatory technical standards that the choice of the most appropriate measurement basis (the hold value or the disposal value) should be made for the particular resolution actions being considered by the resolution authority. 583 As regards the choice of the measurement basis, Article 11(4) of the regulatory technical standards, reproduced in Article 11(4) of Delegated Regulation 2018/345, states: ‘Where the resolution actions referred to in Article 10(1) require that assets and liabilities are to be retained by an entity that continues to be a going concern institution, the valuer shall use the hold value as the appropriate measurement basis. The hold value may, if considered fair, prudent and realistic, anticipate a normalisation of market conditions. The hold value shall not be used as the measurement basis where assets are transferred to an asset management vehicle pursuant to Article 42 of Directive [2014/59] or to a bridge institution pursuant to Article 40 of that Directive, or where a sale of business tool pursuant to Article 38 of Directive [2014/59] is used.’ 584 According to Article 12(4) of the regulatory technical standards, reproduced in Article 12(4) of Delegated Regulation 2018/345, ‘where an entity’s situation prevents it from holding an asset or continuing a business, or where the sale is otherwise considered necessary by the resolution authority to achieve the resolution objectives, the expected cash flows shall be referenced to disposal values expected within a given disposal period’. 585 The factors to be taken into account in determining the disposal value for the purposes of the sale of business tool are defined in Article 12(5) to (7) of the regulatory technical standards, reproduced in Article 12(5) to (7) of Delegated Regulation 2018/345. 586 It follows that the applicants cannot maintain that the disposal value was not the correct methodology for assessing Banco Popular’s value in the context of valuation 2. 587 Furthermore, the applicants also argue, first, that valuation 2 is inconsistent with the audited annual accounts for 2016, the 2014 and 2016 stress tests, the results of the solvency assessment carried out by the EBA in 2016 and the book value of Banco Popular’s own funds in its financial report for the first quarter of 2017. According to the applicants, it is inconceivable that Banco Popular’s value deteriorated in such a short period of time. 588 It is sufficient to note that none of the points of comparison relied on by the applicants is relevant, on the one hand, because they reflect only Banco Popular’s book value and not the disposal value at the date of resolution and, on the other hand, because they relate to Banco Popular’s value at a date well before the resolution. 589 Second, the applicants submit that valuation 2 conflicts with valuations made by analysts around the same date and with BBVA’s purchase offer. 590 In that regard, it is sufficient to note that the applicants do not specify the analyses to which they are referring or what BBVA’s purchase offer was, BBVA having made a purchase offer neither in the context of the private sale process nor in the context of the resolution procedure. 591 Third, the applicants take the view that valuation 2 is inconsistent with the increase in Banco Santander’s share price and the prospect of immediate gains, according to the analysis in the expert report annexed to the application. 592 It is sufficient to note that that argument is ineffective, since developments in the purchaser’s situation after the resolution are not relevant for assessing the validity of the assessment made in valuation 2 of Banco Popular’s value. 593 Fourth, in the reply the applicants refer to the expert report, annexed to the reply, which states that valuation 2 is vitiated by technical errors which invalidate its conclusions concerning the valuation of certain assets. 594 In that regard, the SRB argues that, as regards the alleged technical errors in valuation 2, the applicants merely referred in general terms to the expert report annexed to the reply. Since that reference does not enable the SRB to identify the arguments raised, that annex should be disregarded and the applicants’ arguments are not sufficiently substantiated. 595 In the context of the present plea, the applicants supplement the text of the reply on a specific argument, that is to say the alleged errors contained in valuation 2, by references to their expert report annexed to the reply. However, those references to the expert report are made only in general terms and therefore do not permit the Court to identify precisely the arguments that might be regarded as supplementing that plea. 596 The case-law referred to in paragraph 509 above also applies to the conditions for admissibility of a reply, which according to Article 83(1) of the Rules of Procedure is intended to supplement the application (see judgments of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 95 and the case-law cited, and of 11 July 2018, Europa Terra Nostra v Parliament, T‑13/17, not published, EU:T:2018:428, paragraph 86 and the case-law cited). 597 Accordingly, it must be held that the argument concerning alleged technical errors in valuation 2 is merely asserted without being supported by any line of argument, contrary to the rule laid down in Article 76(d) of the Rules of Procedure. It follows that that argument of the applicants must be declared inadmissible. 598 Accordingly, the third complaint must be dismissed. – The fourth complaint, relating to the credibility of valuation 2 599 First, the applicants submit that Deloitte acknowledged, in valuation 2, that that valuation was carried out in a few days with limited access to information and that there were limitations in it affecting its reliability. Accordingly, valuation 2 could not serve as a basis for decision-making and it was therefore necessary to carry out an ex post definitive valuation. 600 In that regard, it must be noted that, in the letter accompanying the communication of valuation 2 to the SRB, Deloitte stated that, given Banco Popular’s difficult liquidity position, it had been asked to carry out its valuation within an extremely short period. The main work was limited to 12 days from the day on which it had access to the documentation, whereas normally such a project would take six weeks. Deloitte stated that there were a number of gaps and inconsistencies in the available information. It mentioned that the valuation had to be regarded as highly uncertain and provisional under Article 36 of Directive 2014/59 and that a buffer for additional losses had been included in the valuation in accordance with Article 36(9) of Directive 2014/59, which corresponds to Article 20(10) of Regulation No 806/2014. 601 Article 20(10) of Regulation No 806/2014 expressly provides for the situation in which, in view of the urgency of the situation, it is not possible to comply with the requirements laid down in paragraphs 7 and 9 of that article, namely, in particular, where it is not possible to supplement the valuation with certain information contained in the accounting books and records. In addition, that provision recognises the existence of uncertainties inherent in any provisional valuation by providing, in its second subparagraph, that it should incorporate a buffer for additional losses. 602 Thus, in accordance with that provision, Deloitte merely stated that, given the limited time available to carry out the valuation, it had to rely on incomplete information. It stated that the valuation which it had carried out had to be regarded as a provisional valuation under Article 36(9) of Directive 2014/59. 603 In addition, it is apparent from Article 20(13) of Regulation No 806/2014 that, in view of the urgency of the situation, the SRB could rely on valuation 2, carried out under Article 20(10) of Regulation No 806/2014, in order to adopt the resolution scheme, which the applicants also acknowledge in the reply. 604 As regards the applicants’ argument that the SRB should have carried out an ex post definitive valuation, that argument will be examined in the context of the eleventh plea. 605 Second, the applicants submit that valuation 2 is not fair in that the range of values for Banco Popular set out in valuation 2 is excessive in breadth and lacks credibility. 606 In that regard, Deloitte stated, in valuation 2, that the outcome of its assessment was in a range of between EUR 1.3 billion and minus EUR 8.2 billion, with the best estimate within that range being minus EUR 2 billion. 607 On the one hand, it must be noted that the applicants merely challenge the credibility of that range without raising any specific argument. On the other hand, it should be noted that the breadth of the range is justified by the method used in valuation 2. 608 In that respect, with regard to the methodology used in valuation 2, Deloitte stated that it had adopted a category-by-category approach, adjusting the book values of each class of assets and liabilities in order to estimate profits or losses, and other adjustments that any purchaser would apply to the value. It produced a valuation range for each class of assets and liabilities. 609 That method complies with Article 2(3) of the regulatory technical standards, reproduced in Article 2(3) of Delegated Regulation 2018/345, according to which: ‘The valuer shall provide the best point estimate of the value of a given asset, liability, or combinations thereof. Where appropriate, the results of the valuation shall also be provided in the form of value range.’ 610 Thus, the addition of the lowest values for each class of assets and liabilities provided the low estimate of the range and the addition of the highest values provided the high estimate of the range. That method therefore explains the breadth of the range used in valuation 2. 611 Moreover, as the SRB submits, given the size of Banco Popular’s total balance sheet, with a total figure exceeding EUR 130 billion, the difference between the two values in the range represented only approximately 7% of the balance sheet. That difference thus reflects the degree of uncertainty inherent in the valuation process. 612 In addition, it must be noted that Article 20(10) of Regulation No 806/2014 states that the provisional valuation is to comply with the requirements laid down in paragraphs 1, 7 and 9 of that article ‘in so far as reasonably practicable in the circumstances’. 613 Moreover, the uncertainties inherent in valuation 2 are highlighted in the regulatory technical standards from which it is apparent that, when assessing and updating the cash flows which the entity can expect from existing assets and liabilities, the valuer must rely on fair, prudent and realistic assumptions and take various factors and circumstances into account. 614 In particular, as regards estimates concerning the disposal value, Article 12(5) of the regulatory technical standards, reproduced in Article 12(5) of Delegated Regulation 2018/345, provides: ‘The disposal value shall be determined by the valuer on the basis of the cash flows, net of disposal costs and net of the expected value of any guarantees given, that the entity can reasonably expect in the currently prevailing market conditions through an orderly sale or transfer of assets or liabilities. Where appropriate, having regard to the actions to be taken under the resolution scheme, the valuer may determine the disposal value by applying a reduction for a potential accelerated sale discount to the observable market price of that sale or transfer. To determine the disposal value of assets which do not have a liquid market, the valuer shall consider observable prices on markets where similar assets are traded or model calculations using observable market parameters, with discounts for illiquidity reflected as appropriate.’ 615 Article 12(6) of the regulatory technical standards, reproduced in Article 12(6) of Delegated Regulation 2018/345, sets out various factors which the valuer is to take into account and which may affect the disposal values and disposal periods. 616 It follows that valuation 2 is based on assumptions and depends on multiple factors. Thus, in accordance with the regulatory technical standards, in order to determine Banco Popular’s disposal value at the date of resolution, Deloitte, in valuation 2, relied on prospective estimates and assessments and presented its result in the form of a range of values. 617 Accordingly, it must be concluded that, given the time constraints and the information available, some uncertainties and approximations are inherent in any provisional valuation carried out under Article 20(10) of Regulation No 806/2014 and that the reservations expressed by Deloitte cannot mean that valuation 2 was not ‘fair, prudent and realistic’ within the meaning of Article 20(1) of Regulation No 806/2014. 618 Accordingly, the fourth complaint must be dismissed. 619 It follows from the foregoing that the SRB did not make a manifest error of assessment in finding that valuation 2 was fair, prudent and realistic, within the meaning of Article 20(1) of Regulation No 806/2014. 620 Accordingly, the ninth plea must be dismissed as partly inadmissible and partly unfounded. The tenth plea in law, alleging that the procedure for the sale of Banco Popular infringes Article 24 of Regulation No 806/2014 and Article 39(2)(a), (b), (d) and (f) of Directive 2014/59 621 The applicants argue that the procedure for the sale of Banco Popular, set out in the marketing decision, infringes Article 24 of Regulation No 806/2014, concerning the sale of business tool, and Article 39(2)(a), (b), (d) and (f) of Directive 2014/59, in so far as it was not a competitive sale process. 622 Article 39(1) of Directive 2014/59 provides that when applying the sale of business tool to an institution or entity, a resolution authority is to market, or make arrangements for the marketing of the assets, rights, liabilities, shares or other instruments of ownership of that institution that the authority intends to transfer. Article 39(2) of that Directive lays down the criteria in accordance with which the marketing referred to in paragraph 1 is to be carried out. 623 This plea is divided into four complaints corresponding to four of the criteria laid down in Article 39(2) of Directive 2014/59. The applicants submit that the procedure for the sale of Banco Popular, first, was not transparent, second, favoured Banco Santander, third, conferred on Banco Santander an unfair advantage and, fourth, did not allow the highest possible sale price to be obtained. 624 As a preliminary point, it must be observed, first of all, that, in the marketing decision, adopted on 3 June 2017, the SRB, in view of the rapid deterioration of Banco Popular’s liquidity situation and the significant fall in the value of its shares, as well as the adverse effects which the bank’s failure could have on financial stability, considered that it should take all necessary measures to adopt a resolution action if necessary and that the effectiveness of the sale of business tool should be ensured with the aim of securing the resolution objectives. Accordingly, the SRB approved the immediate launching of the marketing of Banco Popular by the FROB and informed the latter of the requirements concerning the sale, in accordance with Article 39 of Directive 2014/59. 625 Next, the procedure for the sale of Banco Popular was conducted by the FROB pursuant to the provisions of Directive 2014/59 and Law 11/2015. In that regard, in the procedural letter issued on 6 June 2017, the FROB invited potential purchasers, in the context of a possible resolution of Banco Popular, to participate in the marketing process and to submit an offer to the FROB for the acquisition of 100% of Banco Popular’s share capital according to the terms and conditions described in that letter. 626 Finally, in Article 6.6 of the resolution scheme, the SRB considered that the marketing effort carried out in relation to Banco Popular by the FROB prior to the adoption of that scheme had met the requirements set out in Article 24 of Regulation No 806/2014, read together with Article 39 of Directive 2014/59. 627 The SRB noted that, in the period immediately preceding the resolution, Banco Popular had conducted a private sale process and that, in the week of 29 May 2017, it had become apparent that that process would be unsuccessful. The SRB stated that the decision to limit the marketing effort to banks which had already expressed a general interest in acquiring Banco Popular in the private sale process was consistent with the requirements of Article 39 of Directive 2014/59. 628 The SRB also noted that, following implementation of the marketing process by the FROB, two banks were ultimately invited to participate in the sale. It stated that all the potential purchasers were approached on the same date, had access to the same virtual data room and had submitted their offers under the same conditions and by the same deadline. 629 The SRB finally noted that, out of the two potential bidders, one valid offer was received and it considered that, as the buyer was the only one to have submitted an offer, it was prudent to accept the buyer’s conditions and thereby prevent Banco Popular’s uncontrolled insolvency, which could, inter alia, have affected its critical functions. – The first complaint, relating to the transparency of the marketing process 630 The applicants argue that the rules of Banco Popular’s competitive sale process, laid down in the marketing decision, are not transparent, in breach of Article 24(2)(d) of Regulation No 806/2014 and Article 39(2)(a) of Directive 2014/59. Participation in the marketing process was arbitrarily restricted solely to those institutions which had participated in the private sale process initiated by Banco Popular before the resolution. 631 According to Article 24(2)(d) of Regulation No 806/2014, concerning the sale of business tool, the resolution scheme is to establish the arrangements for the marketing by the national resolution authority of the entity or the instruments, assets, rights and liabilities in accordance with Article 39(1) and (2) of Directive 2014/59. 632 In accordance with the criterion laid down in Article 39(2)(a) of Directive 2014/59, the marketing is to be as transparent as possible and is not materially to misrepresent the assets, rights, liabilities, shares or other instruments of ownership of that institution that the authority intends to transfer, having regard to the circumstances and in particular the need to maintain financial stability. 633 As a preliminary point, it should be noted that the requirements regarding marketing and, in particular, the decision to limit the number of participants in the marketing process are contained not in the resolution scheme, but in the marketing decision adopted previously by the SRB on 3 June 2017. 634 In that regard, according to the settled case-law of the Court of Justice, intermediate measures whose aim is to prepare the final decision do not, in principle, constitute acts which may form the subject matter of an action for annulment (see judgments of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 39 and the case-law cited, and of 3 June 2021, Hungary v Parliament, C‑650/18, EU:C:2021:426, paragraph 43 and the case-law cited). 635 It is also clear from the case-law that an intermediate measure is also not capable of forming the subject matter of an action if it is established that the illegality attaching to that measure can be relied on in support of an action against the final decision for which it represents a preparatory step. In such circumstances, the action brought against the decision terminating the procedure will provide sufficient judicial protection (see judgment of 15 March 2017, Stichting Woonpunt and Others v Commission, C‑415/15 P, EU:C:2017:216, paragraph 46 and the case-law cited). 636 In the present case, in the resolution scheme, the SRB considered that the marketing process established by the FROB complied with the requirements of Article 39 of Directive 2014/59. However, it must be noted that the FROB took into account the requirements which had been laid down by the SRB in the marketing decision. It follows that the SRB, in the resolution scheme, implicitly confirmed the requirements relating to the sale which it had itself laid down in the marketing decision. 637 In addition, it must be noted that Article 13 of Regulation No 806/2014, on early intervention, provides in paragraph 3 thereof that: ‘The [SRB] shall have the power to require the institution, or the parent undertaking, to contact potential purchasers in order to prepare for the resolution of the institution, subject to the criteria specified in Article 39(2) of Directive 2014/59/EU and the requirements of professional secrecy laid down in Article 88 of this Regulation.’ 638 Accordingly, it must be held that the marketing decision constitutes an intermediate measure adopted by the SRB with a view to the potential resolution of Banco Popular and that the applicants cannot be prevented from relying, in support of their action against the resolution scheme, on the illegality vitiating the assessment contained in the marketing decision. 639 As regards the transparency of the procedure for the sale of Banco Popular, it must be noted that, in recital 4 of the marketing decision, the SRB stated that any public disclosure of the marketing of the bank was to be delayed in order to avoid adverse effects on financial stability. 640 That possibility is expressly provided for by the last subparagraph of Article 39(2) of Directive 2014/59, which provides that any public disclosure of the marketing of the institution that would otherwise be required in accordance with Article 17(1) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ 2014 L 173, p. 1) may be delayed in accordance with Article 17(4) or (5) of that regulation. 641 Recital 64 of Directive 2014/59 states in that regard: ‘Information concerning the marketing of a failing institution and the negotiations with potential acquirers prior to the application of the sale-of-business tool is likely to be of systemic importance. In order to ensure financial stability, it is important that the disclosure to the public of such information required by Regulation … No 596/2014 … may be delayed for the time necessary to plan and structure the resolution of the institution in accordance with delays permitted under the market abuse regime.’ 642 It follows that the transparency requirement in Article 39(2)(a) of Directive 2014/59 must be interpreted as relating to the conduct of the marketing process and not to any publicity measures announcing that process. 643 As regards the restriction of the marketing process solely to the institutions which had participated in the private sale process initiated by Banco Popular, referred to in paragraph 33 above, the SRB sets out, in Article 2(a)(i) of the marketing decision, a number of reasons for its decision to invite the FROB to contact only those five participants. 644 In that regard, the SRB stated: ‘With regard to the selection of the particular purchasers to be solicited, the FROB shall contact in all cases a sufficient number of purchasers, following a research of the market interest to invest in the activities of the Bank. Having due regard to the need to finalise the relevant marketing procedure within an extremely short timeframe, the analysis of the market interest can be informed by the interest shown during the private sales process. During the private sales process, various potential bidders operating on the Spanish and international markets have been contacted. Only five parties have expressed their initial interest and therefore, have been invited to present non-binding offers in the context of the private sales process. FROB will contact the five parties which have been invited to present non-binding offers in the context of the private sales process. Contacting these five parties is justified on the basis of financial stability grounds and the substantial risk that marketing to a wider circle of potential purchasers and the disclosure of risks and valuations or the identification of critical and non-critical functions in respect of the Bank may result in additional uncertainty and in a loss of market confidence. Moreover, contacting a wider number of purchasers might increase the probability of leakage and thus, the risk that the Bank may enter resolution within an extremely short time frame. Further, due to the urgency and the very limited time that is expected to be available for the marketing procedure, inviting a larger number of participants would increase the complexity of the process. Moreover, based on the information received from the Bank, it is doubtful whether bidders that have not shown interest so far in the private sales process would submit offers. Pursuant to Article 24(3) [of Regulation No 806/2014], the SRB will strive to balance the marketing requirements with the need to achieve the resolution objectives. In particular, the SRB will partially deviate from the marketing requirements, due to the urgency of the circumstances and, in particular due to the material threat to financial stability which would arise from the failure of the Bank and the fact that complying with the need to contact a broader range of purchasers would undermine the effectiveness of the sale of business tool.’ 645 It must be noted that the second subparagraph of Article 39(2) of Directive 2014/59 states that, subject to not unduly favouring or discriminating between potential purchasers, the principles referred to in that paragraph are not to prevent the resolution authority from soliciting particular potential purchasers. 646 Consequently, the SRB’s decision to ask the FROB to contact only the five institutions which had participated in the private sale process is consistent with that provision. 647 In addition, that decision was based on an objective criterion, namely the interest already shown by those undertakings in purchasing Banco Popular, and was justified by the very short period in which the marketing process had to be completed. As the SRB pointed out, extending the process to a larger number of participants was liable to slow down the process, but also increased the risk of leaks concerning Banco Popular’s situation and thus the risk to financial stability. 648 It follows that, contrary to what the applicants maintain, the SRB’s decision to invite the FROB to contact only the five parties who participated in the private sale process was not arbitrary. 649 Furthermore, the applicants are wrong to argue that it was arbitrary and discriminatory to approach only the five Spanish institutions which had stated that they were not interested in purchasing Banco Popular in the context of the private sale process. 650 Through their participation in the private sale process, those five institutions were the only banks to have shown an interest in acquiring Banco Popular. The applicants are confusing the expression of interest in the acquisition of Banco Popular, which took the form of participation in the private sale process, with the fact that that process ultimately failed. 651 Finally, it must be noted that the private sale process was open to any Spanish or international operator. The applicants fail to explain why other Spanish or foreign institutions which had expressed no interest in acquiring Banco Popular at the time of the private sale process would be interested a few weeks later, when the FROB launched its process. Furthermore, since it was not possible to provide information to the public on the implementation of the marketing process, the applicants do not explain which non-discriminatory criteria could have served as a basis for contacting other operators. 652 It follows that the SRB, by restricting, in the marketing decision, the marketing process to the five establishments which participated in the private sale process, did not infringe Article 24 of Regulation No 806/2014, read in conjunction with Article 39(2)(a) of Directive 2014/59. 653 Accordingly, the first complaint must be dismissed. – The second complaint, relating to the existence of discrimination in favour of Banco Santander 654 The applicants argue that Banco Santander was favoured over the other participants in the earlier private sale process, in breach of Article 39(2)(b) of Directive 2014/59. Banco Santander was favoured because of the exclusion of potential purchasers which had not participated in the private sale process and because of the reduced deadlines. The applicants take the view that Banco Santander, which had spent several months studying the possibility of acquiring Banco Popular, was able to take advantage of that privileged situation to submit a low offer. Banco Santander was the only bank which continued to have access to updated information on Banco Popular’s situation. Bringing forward to 6 June 2017 the deadline for responding to the call for tenders favoured Banco Santander. 655 In accordance with the criterion laid down in Article 39(2)(b) of Directive 2014/59, the marketing is not unduly to favour or discriminate between potential purchasers. 656 In Article 2(a)(ii) of the marketing decision, the SRB stated that the marketing procedure had to be transparent to allow the participating potential purchasers to be equally and duly informed at each stage of the procedure. It considered that any information required by and provided to one of the potential purchasers had to be provided at the same time to all the others. 657 It must be observed that this complaint of the applicants is directed not against the marketing decision or the resolution scheme, but against the marketing process as implemented by the FROB. Accordingly, the applicants cannot claim an infringement of Article 39(2)(b) of Directive 2014/59 by the SRB. It must therefore be held that, by this complaint, the applicants are arguing, in essence, that the SRB made a manifest error of assessment in that it approved, in the resolution scheme, the marketing process conducted by the FROB, even though that process favoured Banco Santander in breach of Article 39(2)(b) of Directive 2014/59. 658 In that regard, it must be recalled that, in Article 6.6 of the resolution scheme, the SRB considered that the marketing process conducted with respect to Banco Popular by the FROB had complied with the requirements set out in Article 24 of Regulation No 806/2014 read together with Article 39 of Directive 2014/59 and, in particular, that all the potential purchasers were approached on the same date, had access to the same virtual data room and had submitted their offers under the same conditions and by the same deadline. 659 First of all, it is clear from the analysis of the first complaint that the restriction of the process to the potential purchasers that participated in the private sale process was justified. The applicants do not explain how that restriction was such as to favour Banco Santander over the other four institutions contacted by the FROB in order to participate in the marketing process. 660 Next, with regard to the conduct of the process, it should also be noted that, of the five potential purchasers contacted by the FROB, two decided not to participate in the marketing process and one was excluded by the ECB for prudential reasons. On 4 June 2017, the two potential purchasers which had decided to participate in the marketing process, Banco Santander and BBVA, signed a non-disclosure agreement and on 5 June 2017 were given access to the virtual data room. On 6 June, the FROB sent them the process letter and the Sale and Purchase Agreement. 661 By letter dated 6 June 2017, BBVA informed the FROB that it had decided not to submit a bid. BBVA stated in that letter that: ‘… in view of the price constraints and other conditions imposed in the process letter, as well as the lack of available information, BBVA is not in a position to submit an offer in accordance with that process letter and the Sale and Purchase Agreement (SPA) presented today. Notwithstanding the foregoing, we also confirm that if sufficient information were available to allow its management bodies properly to analyse the transaction and if the terms of the process could be amended, BBVA would be interested in participating in it.’ 662 The fact that BBVA informed the FROB that the information available to BBVA did not allow it to submit a bid cannot be interpreted as meaning that it had less information than Banco Santander. 663 As regards the argument that the reduction in the duration of the process favoured Banco Santander, it must be noted that the deadline set out in the process letter was the same for all participants. Moreover, all the potential purchasers had already participated in the private sale process and were therefore able to acquaint themselves with information on Banco Popular and to analyse it during the same period. 664 Furthermore, as the SRB points out, setting a deadline of midnight on 6 June was justified in view of the fact that the ECB had on that day declared Banco Popular to be failing or likely to fail, that Banco Popular would therefore not have been in a position to operate on the market the following day and that it was therefore necessary to adopt a resolution action as a matter of urgency. 665 In addition, as can be seen from paragraph 661 above and contrary to the applicants’ claim, BBVA, in its letter to the FROB, did not justify its decision not to submit an offer on grounds of lack of time. 666 It follows that, contrary to what the applicants claim, the marketing process conducted by the FROB did not favour Banco Santander and that the SRB did not make a manifest error of assessment in finding that that process had met the requirements set out in Article 39(2)(b) of Directive 2014/59. 667 Accordingly, the second complaint must be dismissed. – The third complaint, relating to the existence of an unfair advantage granted to Banco Santander 668 The applicants claim that Banco Santander was given an unfair advantage, in breach of Article 39(2)(d) of Directive 2014/59, because it submitted its bid on 7 June 2017 at 03:12, that is to say, beyond the deadline set by the SRB and the FROB, and that BBVA was not informed that it could submit an offer after the expiry of the prescribed deadline. According to the applicants, if BBVA had been informed that the deadline was flexible, it would have no doubt submitted an offer. The applicants take the view that the content of the process letter contradicts Banco Santander’s argument that the deadline of midnight on 6 June 2017 was purely indicative. 669 In accordance with the criterion laid down in Article 39(2)(d) of Directive 2014/59, the marketing is not to confer any unfair advantage on a potential purchaser. 670 It must be recalled that, by letter of 7 June 2017, the FROB informed the SRB of the outcome of the marketing process and stated that Banco Santander had submitted a bid at 03:12 on 7 June and that the price offered by Banco Santander for the sale of Banco Popular shares was EUR 1. The FROB proposed that Banco Santander, as awardee of the competitive sale process of Banco Popular, should be designated as the buyer of Banco Popular in the resolution scheme. 671 In the resolution scheme, the SRB found that the marketing process conducted in respect of Banco Popular by the FROB had met the requirements set out in Article 24 of Regulation No 806/2014, read together with Article 39 of Directive 2014/59, and accepted the FROB’s proposal to designate Banco Santander as the buyer of Banco Popular. 672 Accordingly, this complaint must be interpreted as seeking a declaration that the SRB made a manifest error of assessment in that it approved, in the resolution scheme, the FROB’s proposal to designate Banco Santander as the buyer, even though the latter had obtained an unfair advantage during the marketing process, in breach of Article 39(2)(d) of Directive 2014/59. 673 It must be observed that, in the marketing decision, the SRB did not set any deadline for the procedure for selecting the buyer of Banco Popular. The applicants are therefore wrong to claim that the deadline for the submission of offers was set by the SRB. 674 In the process letter, the FROB set out a timetable for the procedure for the sale of Banco Popular. That timetable provided that binding offers had to be submitted by midnight on 6 June 2017 at the latest. That timetable also provided that at 01:00 on 7 June 2017 contacts would take place with the bidders to finalise the process and to select the offer; this was to be followed, at 05:30, by the adoption of the SRB’s resolution scheme (where appropriate) and the execution of the Sale and Purchase Agreement, at 06:30, by the FROB’s implementing measure and, at 07:00, by the closing and announcement of the transaction. 675 As stated by Banco Santander, the timetable for the marketing process set out in the process letter was intended to allow all formalities to be concluded by 7 June 2017 at 07:00, so that Banco Popular could operate normally after the markets opened, in particular to avoid an interruption of its critical functions. 676 Since BBVA had announced on 6 June, prior to the expiry of the deadline, that it would not submit an offer and did not justify that decision on the ground that it had insufficient time, it cannot be held that the fact that Banco Santander made its offer after the expiry of the deadline conferred on the latter an unfair advantage over BBVA. 677 The applicants’ assertion that BBVA would have no doubt submitted an offer if it had been informed that the deadline set by the FROB was ‘flexible’ is purely speculative. Moreover, that assertion conflicts with the applicants’ argument, raised in the reply, that the SRB should have ensured that Banco Popular would be kept afloat until the weekend of 10 and 11 June 2017 in order to enable BBVA to complete its analysis of Banco Popular’s financial situation and submit an offer. The applicants cannot therefore argue that an extension of the deadline for making offers of a few hours would have enabled BBVA to submit an offer. 678 Since Banco Santander was the only participant in the process to make a concrete offer and since it was certain, following BBVA’s announcement, that none of the other institutions invited to take part in the marketing process would submit an offer, the fact that the FROB accepted that offer, even though it was submitted after the deadline set in the process letter, could not confer an unfair advantage on Banco Santander. 679 Furthermore, it is apparent from Article 24(3) of Regulation No 806/2014 that: ‘The [SRB] shall apply the sale of business tool without complying with the marketing requirements laid down in point (e) of paragraph 2 when it determines that compliance with those requirements would be likely to undermine one or more of the resolution objectives and in particular where the following conditions are met: (a) it considers that there is a material threat to financial stability arising from or aggravated by the failure or likely failure of the institution under resolution; and (b) it considers that compliance with those requirements would be likely to undermine the effectiveness of the sale of business tool in addressing that threat or achieving the resolution objective specified in point (b) of Article 14(2).’ 680 In that regard, it must be noted, as stated in paragraph 629 above, that in Article 6.6 of the resolution scheme, the SRB noted that, as the buyer was the only one to have submitted an offer, it was prudent to accept the buyer’s conditions and thereby prevent Banco Popular’s uncontrolled insolvency, which could, inter alia, have affected its critical functions. 681 If the SRB had not accepted the FROB’s proposal to designate Banco Santander as the buyer of Banco Popular, the latter would have been wound up. However, as was found in the analysis of the fifth plea, in accordance with Article 18(5) of Regulation No 806/2014, the winding up of Banco Popular under normal insolvency proceedings would not have achieved the objectives set out in Article 14 of that regulation to the same extent as the resolution. In particular, it was found that the resolution was necessary to achieve the objectives of ensuring the continuity of Banco Popular’s critical functions and of avoiding significant adverse effects on financial stability. 682 The FROB sent to the SRB the results of the procedure for the sale of Banco Popular in sufficient time for the SRB to adopt the resolution scheme and to send it to the Commission at 05:13 on 7 June 2017. The Commission thus adopted its decision enabling the resolution scheme to enter into force at 06:30 on the same day. The conduct of the process therefore allowed the FROB to conclude all formalities and close the sale before the expiry of the deadline set out in the process letter, that is to say before 07:00 on 7 June 2017. 683 It follows that the FROB’s proposal to designate Banco Santander as the buyer of Banco Popular did not confer an unfair advantage on Banco Santander and that the SRB did not make a manifest error of assessment in finding that the marketing process had met the requirements set out in Article 39(2)(d) of Directive 2014/59. 684 Accordingly, the third complaint must be dismissed. – The fourth complaint, relating to the fact that the marketing process did not aim at maximising the sale price 685 The applicants submit that no attempt was made to obtain the highest possible sale price, in breach of Article 39(2)(f) of Directive 2014/59. In their view, minimising the number of potential purchasers removed any possibility of competition between the various players in the banking sector, which would have made it possible to obtain the highest possible sale price. 686 It must be held that, by that complaint, the applicants claim, in essence, that the SRB infringed Article 24 of Regulation No 806/2014, concerning the sale of business tool, read together with Article 39(2)(f) of Directive 2014/59, by restricting, in the marketing decision, the marketing process to the five establishments which participated in the private sale process. 687 In accordance with the criterion laid down in Article 39(2)(f) of Directive 2014/59, the marketing is to aim at maximising, as far as possible, the sale price for the shares or other instruments of ownership, assets, rights or liabilities involved. 688 It must be recalled that it is clear from the analysis of the first complaint that the SRB’s decision to limit the marketing process to the five institutions which had participated in the private sale process was justified by the need to finalise the process within a very short period and to avoid the risk of leaks concerning Banco Popular’s situation and thus the risk to financial stability. 689 Furthermore, in Article 2(b) of the marketing decision, the SRB stated that the marketing procedure should aim to maximise the sale price, while taking into account the need to effect a rapid resolution action. It also stated that the main criterion for the evaluation of the offers was the price offered. 690 In the process letter, the FROB stated that the offer price had to be equal to or higher than EUR 1. 691 The applicants do not raise any argument seeking to establish that the restriction of the number of potential purchasers to the five participants in the private sale process prevented genuine price competition between them. 692 The SRB cannot be criticised on the basis of facts arising in the course of the process, that is to say because four of the five participants did not make a concrete bid and because the only concrete bid submitted proposed a purchase price of EUR 1. 693 The applicants are therefore wrong in arguing that the marketing decision did not aim at maximising the sale price in breach of Article 24 of Regulation No 806/2014, read together with Article 39(2)(f) of Directive 2014/59. 694 In the reply, the applicants add that the three options set out in the process letter suggested to bidders that the FROB was implicitly informing them that losses would lead to the destruction of all or part of the capital of Banco Popular. The applicants argue that, in order to obtain a price which maximises the value of the shares, it was necessary for the SRB to require potential purchasers to determine the losses themselves. 695 By that argument, the applicants challenge the content of the process letter issued by the FROB. In that letter, the FROB stated that offers had to indicate the proposed payment price for the transfer of Banco Popular shares on the basis of three options. 696 First, it is sufficient to note that that argument of the applicants is purely speculative and is based not on facts, but on the alleged impression that bidders had when reading the process letter. Second, it is not possible from that argument to determine what criticisms of the SRB the applicants are making. 697 Furthermore, it is necessary to reject the applicants’ purely speculative claims, first, that Banco Santander was aware that it was the only potential purchaser to submit an offer and, second, that the decision to sell Banco Popular at the price of EUR 1 was taken in advance. 698 Accordingly, the fourth complaint must be dismissed. 699 It follows from all of the foregoing that the applicants have not shown that the procedure for the sale of Banco Popular infringed Article 24 of Regulation No 806/2014 and Article 39(2)(a), (b), (d) and (f) of Directive 2014/59. 700 The tenth plea must therefore be dismissed as unfounded. The eleventh plea in law, alleging that the SRB will not carry out an ex post definitive valuation 701 By their three new pleas in law raised in the reply, grouped together under the eleventh plea, the applicants argue that the fact that the SRB did not carry out an ex post definitive valuation constitutes, first, an infringement of Article 20(3) and (11) of Regulation No 806/2014, second, a breach of the duty to state reasons, of the rights of the defence and of the right to an effective remedy and, third, an infringement of essential procedural requirements. 702 The applicants state that it was when the SRB replied to a question put by the Court in the present proceedings that the applicants were informed that no ex post definitive valuation would be carried out. 703 On 30 July 2018, in response to the questions put by the Court in the context of a measure of organisation of procedure, the SRB stated that valuation 2 would not be followed by an ex post definitive valuation. The SRB took the view that, because of the particular features of the present case, it had come to the conclusion that an ex post definitive valuation would serve no practical purpose in the context of Article 20(11) of Regulation No 806/2014, nor would it lead to a compensatory decision provided for in Article 20(12) of that regulation. 704 It must be observed that the ex post definitive valuation provided for in Article 20(11) of Regulation No 806/2014 is, by definition, subsequent to the adoption of the resolution scheme. 705 Furthermore, as stated in paragraph 603 above, under Article 20(13) of Regulation No 806/2014, a provisional valuation such as valuation 2 is a valid basis for adopting the resolution scheme. 706 It is sufficient to note that, according to settled case-law, the legality of an EU measure is assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgment of 3 September 2015, Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 22 and the case-law cited). It follows that elements post-dating the adoption of the EU measure cannot be taken into account in assessing the legality of that measure (see judgment of 17 December 2014, Si.mobil v Commission, T‑201/11, EU:T:2014:1096, paragraph 64 and the case-law cited). 707 It follows that the issue whether or not an ex post definitive valuation was carried out – manifestly after the adoption of the resolution scheme – cannot affect the validity of that scheme. 708 Furthermore, it must be noted that the applicants cannot argue that, in so far as an ex post definitive valuation will not be carried out, the resolution scheme is insufficiently reasoned. The adoption of an ex post definitive valuation cannot in any event allow the SRB to supplement the statement of reasons for the resolution scheme ex post facto. 709 Accordingly, the arguments raised by the applicants in the eleventh plea are ineffective and that plea must be dismissed. The applications for measures of organisation of procedure and measures of inquiry 710 The applicants requested the Court to order various measures of organisation of procedure and measures of inquiry. 711 First, in the application and the reply and by letters of 15 November 2018, 20 April 2021 and 28 May 2021 the applicants asked the Court to order the production of various documents. 712 It must be recalled that, by its order for a measure of inquiry of 12 May 2021, pursuant to Article 91(b), Article 92(3) and Article 103 of the Rules of Procedure, the Court ordered the SRB to produce certain documents referred to in paragraph 95 above. By order of 9 June 2021, the Court held that the documents produced by the SRB in their confidential version were not relevant to the resolution of the dispute. By contrast, the letter from Banco Popular to the ECB of 6 June 2017, without its annex, was communicated to the other parties. 713 Second, the applicants proposed in the application that a number of witnesses be heard. 714 As regards applications made by a party for measures of organisation of procedure or measures of inquiry, it must be recalled that the Court is the sole judge of any need to supplement the information available to it in respect of the cases before it (see judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 117 and the case-law cited, and judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, not published, EU:C:2020:918, paragraph 53). 715 It is clear from the case-law of the Court of Justice that, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject matter of the dispute and the need to examine the witnesses named (see judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 118 and the case-law cited, and judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 29). 716 In the present case, it must be noted that the information contained in the file and the explanations provided during the hearing are sufficient to enable the Court to give judgment, since it has been able to give a proper ruling on the basis of the forms of order sought, the pleas in law and the arguments put forward during the proceedings and in the light of the documents lodged by the parties. 717 It follows that the applicants’ application for measures of organisation of procedure and measures of inquiry must be dismissed, and that the action must be dismissed in its entirety. Costs 718 Under Article 134(1) of the Rules of Procedure of the General Court, 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 applicants have been unsuccessful, they must be ordered to bear their own costs and to pay the costs incurred by the SRB and Banco Santander, in accordance with the forms of order sought by the latter parties. 719 Under Article 138(1) of the Rules of Procedure, the Member States and the institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of Spain, the Parliament, the Council and the Commission must therefore bear their own costs. On those grounds, THE GENERAL COURT (Third Chamber, Extended Composition) hereby: 1. Dismisses the action; 2. Orders Fundación Tatiana Pérez de Guzmán el Bueno and Stiftung für Forschung und Lehre (SFL) to bear their own costs and to pay the costs incurred by the Single Resolution Board (SRB) and Banco Santander, SA; 3. Orders the Kingdom of Spain, the European Parliament, the Council of the European Union and the European Commission to bear their own costs. Van der Woude Jaeger Kreuschitz De Baere Steinfatt Delivered in open court in Luxembourg on 1 June 2022. [Signatures] Table of contents Legal framework Background to the dispute and events subsequent to the action being brought The situation of Banco Popular before the resolution scheme was adopted Other facts prior to the adoption of the resolution scheme The resolution scheme for Banco Popular of 7 June 2017 Facts subsequent to the adoption of the resolution decision Procedure and forms of order sought Law Admissibility Substance Preliminary observations – The scope of the action – The scope of the Court’s review The second plea in law, alleging that Article 18, Article 24(2)(a) and Article 27 of Regulation No 806/2014 and Articles 32, 38 and 43 of Directive 2014/59 are unlawful in that they infringe the right to be heard enshrined in Article 41(2)(a) of the Charter – The scope of the plea of illegality – The plea of illegality in respect of Article 18 of Regulation No 806/2014 The third plea in law, alleging that Articles 21, 22, 24 and 27 of Regulation No 806/2014 and Articles 38 and 63 of Directive 2014/59 are unlawful in that they infringe the right to property, enshrined in Article 17(1) of the Charter, and breach the principle of the freedom to conduct a business, enshrined in Article 16 of the Charter The first and fourth pleas in law, alleging a failure to state reasons for the resolution scheme, an infringement of the right to good administration enshrined in Article 41(2)(b) and (c) of the Charter and an infringement of the right to an effective remedy enshrined in Article 47 of the Charter The first complaint, relating to the infringement of the obligation to state reasons – The second complaint, relating to the infringement of the right of access to the file – The third complaint, relating to the infringement of the right to an effective remedy The fifth plea in law, alleging infringement of Article 18(1) of Regulation No 806/2014 and Article 32 of Directive 2014/59 – The first part, relating to the first condition laid down in Article 18(1)(a) of Regulation No 806/2014 – The second part, relating to the second condition laid down in Article 18(1)(b) of Regulation No 806/2014 – The third part, relating to the third condition laid down in Article 18(1)(c) of Regulation No 806/2014 The sixth plea in law, alleging breach of the principle of prudential banking The seventh plea in law, alleging breach of the principle of the protection of legitimate expectations The eighth plea in law, alleging infringement of the right to property and breach of the principle of proportionality, enshrined in Articles 17 and 52 of the Charter The ninth plea in law, alleging infringement of Article 20(1) of Regulation No 806/2014 – The first complaint, relating to the independence of the expert who carried out valuation 2 – The second complaint, relating to the coexistence of two ex ante valuations – The third complaint, relating to the method used in valuation 2 – The fourth complaint, relating to the credibility of valuation 2 The tenth plea in law, alleging that the procedure for the sale of Banco Popular infringes Article 24 of Regulation No 806/2014 and Article 39(2)(a), (b), (d) and (f) of Directive 2014/59 – The first complaint, relating to the transparency of the marketing process – The second complaint, relating to the existence of discrimination in favour of Banco Santander – The third complaint, relating to the existence of an unfair advantage granted to Banco Santander – The fourth complaint, relating to the fact that the marketing process did not aim at maximising the sale price The eleventh plea in law, alleging that the SRB will not carry out an ex post definitive valuation The applications for measures of organisation of procedure and measures of inquiry Costs * Language of the case: Spanish.