Opinion of the Advocate General — ECLI:EU:C:2022:327
Date: 2022-04-28
Language of the case: English
Subject matter: Economic and monetary policy
Procedure: Action for annulment;Appeal - unfounded
Origin: Latvia

summary, I propose that the Court should: 1. Dismiss the appeal. 2. Order ABLV Bank AS, in liquidation, to pay its own costs and to pay the costs of the appeal and the costs of the Single Resolution Board. 3. Order the European Commission to pay its own costs. 1 Original language: German. 2 See recitals 3 and 19 of the SRM Regulation (see citation in footnote 3 below) and recitals 5, 76 and 104 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190) (‘the BRRD’). 3 Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1) (‘the SRM Regulation’). 4 That is to say, from the commercial banks that are authorised in a Member State which participates in the Single Surveillance Mechanism (SSM). Participating Member States are all the Member States of the euro area and, since 1 October 2020, Croatia and Bulgaria. 5 See Article 100 of the BRRD. As of 2016, that requirement on the part of the Member States of the Banking Union was replaced, in effect, by their participation in the establishment of the SRF. 6 See recital 107 of the SRM Regulation. 7 According to Article 6(1) of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ 2014 L 173, p. 149), Member States are to ensure that the deposits of each depositor are protected up to an amount of EUR 100 000. 8 See Article 8(2) of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1) (‘Implementing Regulation 2015/81’). 9 See, in particular, judgments of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967); of 3 December 2019, Iccrea Banca (C‑414/18, EU:C:2019:1036); and of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601). 10 See citation in footnote 3. 11 See citation in footnote 2. 12 See citation in footnote 8. 13 OJ 2015 L 11, p. 44. 14 OJ 2017 L 337, p. 6. 15 See Article 6(4) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63) (‘the SSM Regulation’). 16 Decision SRB/EES/2018/09 of 23 February 2018. 17 SRB/ES/SRF/2018/03. 18 Paragraphs 65 to 76 of the judgment under appeal. 19 Paragraphs 77 to 90, in particular paragraph 84, of the judgment under appeal. 20 Paragraphs 77 to 111 of the judgment under appeal. 21 See, in particular, paragraphs 120 to 129 of the judgment under appeal. 22 See paragraphs 92 to 96 of the judgment under appeal. 23 See paragraphs 65 to 76 of the judgment under appeal. 24 See, in particular, paragraphs 80 to 89 of the judgment under appeal. 25 See Article 70(1) of the SRM Regulation. 26 That is to say, at least until the available financial means fall below two thirds of the amount corresponding to 1% of all covered deposits at the relevant point in time, either as a result of the Fund being used or as a result of a further increase in covered deposits (see the first subparagraph of Article 69(4) of the SRM Regulation). 27 It is true that that regulation applies directly to the collection of contributions to the national financing arrangements. However, for the Member States of the Banking Union, the SRF replaced those financing arrangements upon the entry into force of the SRM Regulation for all institutions covered by it. Therefore, Delegated Regulation 2015/63 applies mutatis mutandis to the calculation of the ex ante contributions to the SRF (see Article 70(6) of the SRM Regulation). 28 In fact, a mixture of the average amount of covered deposits in the Member State concerned and the total amount of covered deposits in all participating Member States in the previous year is taken as the basis (see Article 8(1) of Implementing Regulation 2015/81). However, that is not of decisive importance in understanding the functioning of the system of levying contributions. In each of the previous years, the SRB set a total annual contribution corresponding to one eighth of between 1.05% and 1.35% of the thus calculated average amount of deposits covered in the previous year (see https://www.srb.europa.eu/en/content/2020-srf-levies-ex-ante-contributions). 29 See Article 4(1) and Article 14(1) to (4) of Delegated Regulation 2015/63, and judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967, paragraph 42). 30 See the Commission’s proposal for the SRM Regulation, of 10 July 2013 (COM(2013) 520 final), pp. 14 and 15. 31 See, in that regard, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 117). 32 Or the moment of a ‘snapshot’, in the wording of the Opinion of Advocate General Campos Sánchez-Bordona in State Street Bank International (C‑255/18, EU:C:2019:539, point 71). 33 See, in particular, points 54 and 55 of this Opinion. 34 See also the Commission’s proposal for the SRM Regulation, of 10 July 2013 (COM(2013) 520 final), p. 15. 35 See recital 107 of the SRM Regulation. 36 See also, in that regard, my Opinion in Cases Aeris Invest v SRB and Algebris (UK) and Anchorage Capital Group v SRB (C‑874/19 P and C‑934/19 P, EU:C:2021:563, point 104). See also the Commission’s proposal for the SRM Regulation, of 10 July 2013 (COM(2013) 520 final), p. 15. 37 Judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113). 38 See point 54 above. 39 See recital 11 of Implementing Regulation 2015/81. 40 See, to that effect, judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967, paragraph 43). 41 Judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967, paragraph 44). 42 See recitals 20 and 102 of the SRM Regulation. 43 See, to that effect, judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967, paragraph 43). 44 In that regard, see point 69 above. 45 See, in that regard, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 117). 46 See, in particular, paragraph 86 of the judgment under appeal. 47 Contributions may be levied again if the target level falls below two thirds of the amount corresponding to 1% of the covered deposits, for example due to funds being used (see the first subparagraph of Article 69(4) of the SRM Regulation and point 53 of this Opinion). 48 In that regard, see points 54 to 56 above. 49 See paragraphs 110 and 111 of the judgment under appeal. 50 See, for example, judgment of 9 July 2015, Cabinet Medical Veterinar Dr. Tomoiagă Andrei (C‑144/14, EU:C:2015:452, paragraphs 34 and 35). 51 See, to that effect, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 217 and 218), and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 167). 52 Indeed, a provision is to be regarded as invalid only if it cannot be interpreted in a manner which is compatible with higher-ranking principles or legal provisions; see, to that effect, judgments of 29 June 1995, Spain v Commission (C‑135/93, EU:C:1995:201, paragraph 37); of 4 October 2001, Italy v Commission (C‑403/99, EU:C:2001:507, paragraphs 28 and 37); and of 26 June 2007, Ordre des barreaux francophones and germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 28). 53 See, in particular, points 64 to 69 of this Opinion. 54 See judgments of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 78); of 28 January 2016, Éditions Odile Jacob v Commission (C‑514/14 P, not published, EU:C:2016:55, paragraph 40); and of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 100). 55 In the Member States of the Banking Union, contributions to the national financing arrangement are now levied only on undertakings not covered by the SRM Regulation. 56 See recital 12 and Article 3(3) of the IGA. 57 See, for the details in that regard, Article 8(1) of Implementing Regulation 2015/81. 58 See paragraph 100 of the judgment under appeal. 59 See point 33 of this Opinion. 60 See Article 67(4) of the SRM Regulation and Article 1(1) and Article 3(1) of the IGA. 61 See recital 9 of the IGA. 62 In that regard, see point 67 above. 63 See point 108 above. 64 Regarding the broad discretion that the legislature has in this area, see points 60 and 76 above. 65 In that regard, see points 69 and 76 above. 66 See, to that effect, judgment of 14 November 2019, State Street Bank International (C‑255/18, EU:C:2019:967, paragraph 43). 67 See judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 103 and 104). 68 See judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 181); of 15 November 2012, Council v Bamba (C‑417/11 P, EU:C:2012:718, paragraph 60); and of 22 April 2021, Council v PKK (C‑46/19 P, EU:C:2021:316, paragraphs 55 and 56). 69 Judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala (C‑413/06 P, EU:C:2008:392, paragraph 181).