Judgment;Abstract — ECLI:EU:T:2022:315
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: Luxembourg

summary, the technical standards of the EBA specify the need to distinguish between two types of valuation prior to the resolution: 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. 634 Recital 1 of the regulatory technical standards, reproduced in recital 1 of Delegated Regulation 2018/345, points to 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 conditions 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 lay down different criteria for conducting valuation 1 and valuation 2. 635 Moreover, it must be recalled that, under the second subparagraph of Article 18(1) of Regulation No 806/2014, the assessment of that condition is carried out by the ECB or by the SRB. 636 As regards the applicant’s argument that the conclusions of valuations 1 and 2 were contradictory, it is sufficient to note that it is ineffective. 637 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. 638 It is true that, in valuation 1, the SRB stated that, on the reference date for its assessment, namely 31 March 2017, Banco Popular was solvent. However, first, it should be noted 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. Secondly, 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, within the meaning of Article 18(4)(c) of Regulation No 806/2014, and not on the fact that Banco Popular was insolvent on the balance sheet. Thus, the conclusions in valuation 1 were no longer relevant on the date of the resolution. 639 Moreover, it must be observed that differences in the conclusions in valuation 1 and valuation 2 are due to the fact that, since they had different objectives, they rely on different assessment criteria defined in the technical standards of the EBA. Thus, according to the technical standards of the EBA, the main purpose of valuation 1 is to determine whether the total value of the entity’s assets exceeds that of its liabilities, in other words whether the entity is solvent on the balance sheet, whereas valuation 2 must rely on the economic value and not the book value of the entity. 640 Finally, in so far as valuation 2 must take account of the economic value and not the book value of Banco Popular, the applicant cannot claim that there is a contradiction between the finding that Banco Popular was solvent, made in valuation 1, in the assessment by the ECB or the Bank of Spain, and the conclusion of valuation 2. 641 Accordingly, the fourth part must be dismissed. (5) The fifth part, concerning the existence of manifest errors of assessment 642 The applicant claims that, according to the expert’s report, valuation 2 contains manifest errors of assessment. 643 First of all, it must be observed that the applicant submits that, according to the expert’s report, valuation 2 contains a downward assessment in so far as it does not take account of the market data and the data of the auditors who had had time to assess Banco Popular. 644 In that respect, with regard to market value, reference is made to the analysis in paragraphs 614 to 621 above. As regards the auditors’ data, it should be noted that the value given to Banco Popular’s assets by those auditors corresponds to their book value. Those data cannot therefore be compared with data relating to the economic value of the assets, which Deloitte had to take into account in order to determine the disposal value of Banco Popular. 645 First, with regard to loans and receivables, the applicant, relying on the expert’s report, claims that their valuation is unrealistic in that it contradicts the provision ratios approved by the supervisor and valuation 1, in which the book value of the loan portfolio was not reduced. 646 It is sufficient to recall that it follows from paragraph 644 above and the analysis of the fourth part that the supervisor’s data and valuation 1, in so far as they take into account only the book value of Banco Popular’s assets, are irrelevant for the purposes of comparison with valuation 2. 647 In addition, it should be noted that the loans and receivables are among the areas where there is significant uncertainty and on which the valuer places specific focus, in accordance with Article 8(a) of the regulatory technical standards, which provides: ‘Loans or loan portfolios, the expected cash flows of which depend on a counterparty’s ability, willingness or incentive to perform on its obligation, where those expectations are driven by assumptions relating to delinquency rates, probabilities of default, loss given default, or instrument characteristics, especially where evidenced by loss patterns for a portfolio of loans’. 648 In addition, in pages 4 to 11 of the annex to valuation 2, Deloitte explained the adjustments it had made with regard to the valuation of loans and receivables, in particular in the light of risks of non-payment. The applicant does not put forward any argument to dispute those adjustments. 649 Secondly, with regard to immovable assets, the applicant, relying on the expert’s report, claims that valuation 2 unjustifiably reduced their value by not taking account of the assessments of those assets carried out by the experts authorised by the Bank of Spain. It states that valuation 2 ignores the value given to those assets by Banco Popular’s auditors and the Bank of Spain’s recommendations for valuing them. 650 That argument must be rejected in so far as it is based on a comparison with the assessments carried out by the auditors, which are not relevant. 651 Moreover, it must be observed that that argument is not sufficiently clear to understand its scope. In particular, the applicant does not specify which experts authorised by the Bank of Spain or which recommendations by the Bank of Spain were said to have been ignored by Deloitte. 652 In any event, it is evident from reading the expert’s report that the ‘Bank of Spain’s recommendations’ refer to its Circular 4/2016. The expert points out that, in respect of the valuation of repossessed immovable assets, Deloitte used Orden ECO/805/2003, sobre normas de valoración de bienes inmuebles y de determinados derechos para ciertas finalidades financieras (Order ECO/805/2003 on the rules for the valuation of immovable property and certain rights for financial purposes), of 27 March 2003 (BOE No 85 of 9 April 2003, p. 13678), in order to make adjustments, which resulted in a lower value than if it had followed Circular 4/2016. In that regard, it is sufficient to note that the expert does not dispute the applicability of order ECO/805/2003. 653 Moreover, in the report on valuation 2, Deloitte took the view that a fair valuation of repossessed immovable assets required an adjustment of between 42% and 47% compared with the valuations provided by Banco Popular. In the annex to valuation 2, Deloitte stated that most of the inconsistencies found were due to insufficient consideration of order ECO/805/2003, which lays down the mandatory rules for the valuation of immovable property in the Spanish banking sector. In particular, Deloitte states that those inconsistencies concern inter alia the assessment of planning expectations and the state of progress of works. 654 In the expert’s report, the expert does not raise any argument to question that assessment by Deloitte in valuation 2. It merely states that the experts authorised by the Bank of Spain were also qualified to carry out the assessment of Banco Popular’s immovable assets. 655 It follows that Deloitte explained the method used, in valuation 2, to value Banco Popular’s immovable assets and provided justification as to why its valuation of the repossessed immovable assets was different from that provided by Banco Popular. 656 Thirdly, with regard to deferred tax assets, the applicant submits that Deloitte valued those assets without having the necessary documents and that that valuation contradicts valuation 1. 657 It is sufficient to recall that it follows from the analysis of the fourth part that the applicant’s argument concerning the contradiction with valuation 1 is ineffective. 658 With regard to the valuation of deferred tax assets, Deloitte set out in the annex to valuation 2 the uncertainties in its assessment which relate to the time and information available and which are inherent in the very nature of those assets. In that regard, Deloitte provided explanations with regard to the method used to assess the deferred tax assets and the assumptions it had taken into account. 659 For example, in the report on valuation 2, Deloitte stated that the assessment of unprotected deferred tax assets would depend on the purchaser’s anticipated taxable profits (business plan) and the levels of existing tax credits. It explained, inter alia, in the annex to valuation 2 that the valuation of unprotected deferred tax assets would depend on the purchaser, in particular on whether it was a Spanish or a foreign entity and that, if the purchaser was a Spanish bank, whether those assets were recoverable and their inclusion in the balance sheet would depend on Banco Popular’s and the purchaser’s business plan. The report on the valuation states that Deloitte’s assessment takes account of those various scenarios. 660 Finally, it should be borne in mind that the existence of uncertainties is inherent in any provisional valuation carried out on the basis of Article 20(10) of Regulation No 806/2014. 661 The applicant does not put forward any argument to call into question the method of valuing the deferred tax assets used by Deloitte and explained in pages 27 to 33 of the annex to valuation 2. 662 Fourthly, with regard to provisions for legal risks, the applicant refers to the expert’s report according to which valuation 2 unjustifiably increased those provisions. 663 It is sufficient to note that the expert’s report merely compares the outcome of the valuation of the legal risks carried out by Deloitte with that used in the Banco Popular audit report. 664 Those findings are not such as to call into question the adjustments made by Deloitte on the basis of its own experience and trends in the sector which led to the various scenarios explained in pages 34 to 38 of the annex to valuation 2. 665 Moreover, the applicant considers that valuation 2 did not take account of the significant synergies that Banco Popular presented for Banco Santander, demonstrated by the significant increase in Banco Santander’s stock exchange listing on 7 June 2017 and the following two days. 666 In that regard, it is sufficient to note that the purpose of valuation 2 was to determine the disposal value of Banco Popular for any potential purchaser. Deloitte could not therefore take into account, in valuation 2, synergies relating to a purchaser whose identity it did not know. The specific value attributed to Banco Popular’s assets and liabilities in Banco Santander’s accounts following its inclusion is therefore irrelevant. 667 Accordingly, the applicant has failed to establish the existence of manifest errors of assessment in valuation 2 and the fifth part must be dismissed. 668 It follows from all of the foregoing that the second part must be dismissed as must the ninth plea in law in its entirety. 10. The 10th plea in law, alleging infringement of Article 14 of Regulation No 806/2014, of the duty of care and of Article 296 TFEU 669 The applicant claims that the SRB, in the resolution scheme, infringed Article 14 of Regulation No 806/2014, its duty of care and Article 296 TFEU in so far as it proceeded with the write-down of shares and sale of business without examining whether there were other measures which would reduce the destruction in value for shareholders. 670 In the first place, the applicant submits that there is nothing in the statement of reasons for the resolution scheme which shows that the SRB examined other less onerous solutions for the shareholders before proceeding with the write-down of Banco Popular’s capital instruments and the sale of the business. The applicant states that the SRB did not justify whether other solutions would have avoided the destruction of value for shareholders in accordance with Article 14 of Regulation No 806/2014. 671 It must be observed that the applicant’s arguments are based on a misinterpretation of the second subparagraph of Article 14(2) of Regulation No 806/2014, cited in paragraph 521 above. 672 It follows from that provision that the resolution objectives referred to in the first subparagraph of Article 14(2) of Regulation No 806/2014 must be achieved, as far as possible, with a resolution tool which results in the lowest destruction of value. However, as that provision makes clear, where the destruction in value caused by the resolution tool chosen is necessary for the attainment of those objectives and therefore for the public interest, the resolution cannot be regarded as disproportionate. 673 Moreover, as the Commission points out, the destruction of value within the meaning of the second subparagraph of Article 14(2) of Regulation No 806/2014 concerns not only the financial interests of the entity’s shareholders and holders of capital instruments, but also those of its depositors, its employees and its other creditors. 674 Contrary to the applicant’s submissions, that provision does not mean that the proportionality of the resolution action must be assessed in the light of the interference in the right to property of the shareholders. 675 It must be recalled that, in Article 5.2 of the resolution scheme, the SRB stated that the sale of business tool was an appropriate, necessary and proportionate means of meeting the resolution objectives in Article 14(2) of Regulation No 806/2014, namely mainly to ensure the continuity of critical functions and to preserve financial stability. In Article 5.3 of the resolution scheme, referred to in paragraph 339 above, the SRB explained why the other resolution tools provided for in Regulation No 806/2014 were not appropriate and would not meet the resolution objectives to the same extent. 676 Thus, the SRB set out the reasons why the other resolution tools, such as the separation of assets, which, in the applicant’s view, would have avoided the destruction of value for shareholders, would not have met the objectives set out in the first subparagraph of Article 14(2) of Regulation No 806/2014. 677 Contrary to the applicant’s submissions, since the SRB justified that the sale of business tool was necessary for the attainment of those objectives, it did not have to indicate whether other solutions would have avoided the destruction of value within the meaning of the second subparagraph of Article 14(2) of Regulation No 806/2014. 678 Moreover, it must be observed that, in Article 4.5 of the resolution scheme, the SRB concluded that the resolution also contributed to minimising the destruction of value, taking into account the fact that the winding up of Banco Popular would have resulted in creditors bearing higher losses than in resolution. The SRB also considered, in Article 4.6 of the resolution scheme, that the disadvantages and costs associated with the adoption of the resolution action, mainly the losses suffered by the shareholders, would be outweighed by the benefits derived from it, namely the maintenance of critical functions, the minimisation of adverse effects for the economy and financial stability and the avoidance of losses that could be suffered by other creditors. 679 It follows that, contrary to the applicant’s submissions, in the resolution scheme the SRB took into account the destruction of value that the sale of the business was likely to entail for the shareholders of Banco Popular. 680 In the second place, the applicant submits that the SRB did not examine whether the asset separation tool, combined with a loan from the SRF, would have been appropriate to resolve the liquidity problems and restore market confidence and thus exceeded the limits of its discretion. The applicant submits that, according to the expert’s report annexed to the application, referred to in paragraph 482 above, a separation of assets combined with other measures intended to provide liquidity was, in principle, feasible and would have avoided a destruction of value for shareholders contrary to Article 14 of Regulation No 806/2014. 681 First of all, it should be borne in mind that, in Article 5.3 of the resolution scheme, referred to in paragraph 339 above, the SRB considered that the asset separation tool, whether combined with the bail-in tool or the bridge institution tool, would not meet the resolution objectives to the same extent as the sale of business tool. 682 Moreover, the applicant does not raise any argument capable of establishing that the solution it relies on, namely a separation of assets combined with liquidity assistance, was in fact conceivable in view of Banco Popular’s liquidity situation and the urgency with which the resolution scheme had to be adopted or that that solution could have restored Banco Popular’s long-term viability. 683 Thus, in the application, the applicant merely refers to the part of the expert’s report annexed thereto entitled ‘The decision does not take sufficient account of alternative resolution tools’. It is sufficient to note that, in that report, drawn up on 16 September 2017 on the basis of the version of the resolution scheme published in July 2017, the experts acknowledge numerous shortcomings in their analysis due to the fact that the version of the resolution scheme available to them was redacted and that they were unaware of the extent of Banco Popular’s liquidity problems. They point out that Banco Popular was solvent and rely on a number of purely theoretical assumptions relating to the sale of certain assets. However, that report does not contain any analysis aimed at establishing that an alternative solution to the sale of business tool was feasible in practice in the light of the deterioration in Banco Popular’s liquidity situation and the urgency. That report does not establish whether those asset sales were actually feasible in the circumstances that prevailed on the date of the resolution. 684 As the SRB points out, the applicant does not explain sufficiently how the alternative solution would have been as effective, legally possible and less costly than the sale of assets through the sale of business tool. In that regard, it must be observed that the experts who drafted the expert’s report of 16 September 2017 also produced the expert’s report annexed to the reply, referred to in paragraph 483 above, in which they acknowledged that, due to a lack of available information, they had not been able in their first report to explain in greater detail how that alternative solution could function. 685 Moreover, the expert’s report annexed to the application does not take account of the resolution objectives laid down in Article 14 of Regulation No 806/2014 and therefore does not demonstrate that the application of another resolution tool, such as asset separation, would have achieved those objectives as effectively as the sale of business tool. 686 Finally, as the Commission and the SRB point out, the implementation of the asset separation tool requires a period of time which was not available on the date of the resolution. 687 In that regard, in the reply, the applicant submits that the SRB could have carried out a separation of assets as a matter of urgency. It refers, in that regard, to Section 8 of the expert’s report annexed to the reply. It is sufficient to note that that expert’s report annexed to the reply merely states that the essential parts of such an exercise could be carried out in a significantly shorter time frame than the six to nine months mentioned by the Commission. Those factors are not capable of establishing that the asset separation tool was actually feasible due to the urgency of the situation in which Banco Popular found itself. 688 The applicant also claims that the separation of assets could have been applied as a matter of urgency if the 2016 resolution plan had been properly prepared. 689 It must be held, as the Commission considered, that that argument is irrelevant since the 2016 resolution plan could not have envisaged the liquidity crisis that Banco Popular would face from April 2017 onwards. 690 In that regard, under the third paragraph of Article 23 of Regulation No 806/2014, ‘when adopting a resolution scheme, the [SRB], the Council and the Commission shall take into account and follow the resolution plan as referred to in Article 8 unless the [SRB] assesses, taking into account the circumstances of the case, that the resolution objectives will be achieved more effectively by taking actions which are not provided for in the resolution plan’. 691 In the present case, the SRB explained, in recitals 44 to 46 of the resolution scheme, the reasons why the resolution tool envisaged in the 2016 resolution plan was not appropriate to the circumstances that prevailed on the date of the resolution. Thus, it noted that the 2016 resolution plan was based on the assumption that the failure of Banco Popular would be linked to a deterioration of its capital situation. However, in so far as the failure of Banco Popular stemmed from the deterioration of its liquidity position, the SRB stated that it was not guaranteed that the bail-in tool, envisaged in that plan, would have provided an immediate and effective remedy to Banco Popular’s liquidity crisis. 692 It follows that any weaknesses in the 2016 resolution plan cannot lead to the annulment of the contested decisions and the arguments raised by the applicant in that regard are ineffective. In particular, Special Report 23/2017 by the Court of Auditors entitled ‘[SRB]: Work on a challenging Banking Union task started, but still a long way to go’, referred to by the applicant, is irrelevant. 693 In the third place, the applicant submits that the SRB breached its duty of care and of sound administration by not examining the possible solutions offered by Article 76 of Regulation No 806/2014, namely a loan from the SRF, in order to resolve Banco Popular’s liquidity problems. 694 In that regard, it is sufficient to note that, under Article 76(1)(b) of Regulation No 806/2014, within the resolution scheme, when applying the resolution tools, the SRB may use the SRF only to the extent necessary to ensure the effective application of the resolution tools for the purposes, inter alia, of making loans to the institution under resolution. It is clear from that provision that that possibility can be envisaged only in the context of a resolution action and is in no way an alternative to it. As the SRB points out, recourse to the SRF cannot be used in isolation in order to resolve the liquidity problems of an entity. 695 In the fourth place, in the alternative, the applicant submits that the SRB could have had recourse to other measures provided for by Directive 2014/59. It states that the SRB breached its duty of care and exceeded the limits of its discretion by not examining the possibility of designing an ad hoc resolution tool, in the light of the fact that Regulation No 806/2014 was not designed to resolve liquidity problems. 696 It is sufficient to note, as the SRB has done, that it can use only the resolution tools referred to in Article 22(2) of Regulation No 806/2014. 697 Accordingly, the 10th plea in law must be dismissed. 11. The 11th plea in law, alleging infringement of Article 20(14) of Regulation No 806/2014, read in conjunction with Article 20(11) and (15) of that regulation, and infringement of essential procedural requirements 698 By this new plea in law raised in the reply, the applicant states that, in its response of 30 July 2018 to a measure of organisation of procedure, the SRB stated that it would not carry out an ex post definitive valuation and submits that the resolution scheme infringes Article 20(11), (14) and (15) of Regulation No 806/2014. It claims that resolution scheme was adopted without the provisions and mechanisms necessary for the valuation referred to in Article 20 of Regulation No 806/2014 to be based on information relating to Banco Popular’s assets and liabilities that is as complete and up-to-date as possible. 699 The applicant submits that the new plea in law is admissible under Article 84 of the Rules of Procedure since it is based on a new factor which arose in the course of the proceedings, namely the information communicated by the SRB in its response of 30 July 2018 to a measure of organisation of procedure, according to which it would not carry out an ex post definitive valuation. 700 The Commission submits that this new plea is inadmissible and, in any event, unfounded, since the applicant relies on a factor subsequent to the adoption of the resolution scheme which cannot affect its legality. The SRB and Banco Santander also submit that the plea refers to a decision by the SRB which is subsequent to the adoption of the resolution scheme and that that cannot affect the legality of the resolution scheme. 701 It is sufficient to point out that, for the same reasons as those set out in paragraphs 596 to 599 above, 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 the contested decisions. 702 Moreover, in its observations on Banco Santander’s statement in intervention, the applicant explains that that new plea is not based on the absence of an ex post definitive valuation, but seeks to argue that the resolution scheme was flawed from the moment it was adopted since the guarantees provided for in Article 20(14) of Regulation No 806/2014 did not exist. 703 It is sufficient to note that, by that explanation, the applicant calls into question the reasons which it had put forward to justify the introduction of that new plea in law at the reply stage. 704 Accordingly, the 11th plea in law must be dismissed. 12. The 12th plea in law, alleging infringement of Article 20(1) of Regulation No 806/2014, read in conjunction with Article 20(3) and (5) of that regulation 705 By this new plea in law raised in the reply, the applicant, following access to the versions of valuation 2 published in February and October 2018, submits that the resolution scheme, of which valuation 2 forms an integral part, infringes Article 20(1) and (5) of Regulation No 806/2014. 706 First, the applicant submits that valuation 2 considered only one resolution tool, namely the sale of business tool, which is contrary to Article 20(1) of Regulation No 806/2014, under which the provisional valuation must be carried out before deciding on resolution action. It states that it is contrary to that provision to draw up a provisional valuation after having chosen the resolution action to be used. Secondly, the applicant states that the resolution scheme infringes Article 20(1) of Regulation No 806/2014 in so far as valuation 2 was not carried out by an independent person. The applicant submits that Deloitte worked in accordance with the instructions of the SRB, that it was unable to form its own opinion because the SRB had ordered it to concentrate on the sale of business tool and that part of the provisional valuation, namely valuation 1, was carried out by the SRB itself. Thirdly, since the resolution tool had been chosen in advance, valuation 2 could not fulfil the objective referred to in Article 20(5) of Regulation No 806/2014 of providing the SRB with information on the type of resolution tool to be used. 707 The Commission submits that this new plea is inadmissible. 708 Under Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. 709 It must be held that all of the arguments raised by the applicant in this new plea in law rely, in essence, on the fact that valuation 2 was carried out by considering only one resolution tool, namely the sale of business tool. 710 In that regard, recital 42 of the resolution scheme, in the version annexed to the application, stated that: ‘Given the urgency of the circumstances of the case, Deloitte carried out a provisional valuation, in accordance with Article 20(10) [of Regulation No 806/2014]. Such provisional valuation was carried out with the purpose of: … (c) informing the decision 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.’ 711 It follows that the fact that Deloitte carried out a provisional valuation for the purpose of assessing the conditions for implementing the sale of business tool is information which was already included in the resolution scheme available to the applicant at the time when the action was brought. 712 The applicant does not refer to any new information that would have come to its knowledge as a result of its access to a less confidential version of valuation 2, as published on the SRB’s website in February and October 2018, and which would be capable of justifying the fact that that plea was raised only in the reply. The applicant cannot therefore rely on the fact that it gained access to valuation 2 only in the course of the proceedings to justify the admissibility of this new plea in law under Article 84 of the Rules of Procedure. 713 Accordingly, the 12th plea in law must be dismissed as inadmissible. 714 In any event, it must be held that the applicant’s arguments are unfounded. 715 First, contrary to what is claimed by the applicant, it does not follow from Article 20(1) of Regulation No 806/2014, cited in paragraph 15 above, that a valuation may not be carried out by taking into account a particular resolution tool. The applicant is therefore wrong to claim that the fact that valuation 2 considered only the sale of business tool is contrary to Article 20(1) of Regulation No 806/2014. 716 Secondly, it must be observed 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) thereof, relating to cases where either the bail-in tool, the bridge institution tool or the asset separation tool is applied. 717 Moreover, 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. 718 Article 20(5) of Regulation No 806/2014 cannot be interpreted as requiring the valuer to carry out a valuation taking into account all potentially conceivable resolution tools. Accordingly, the applicant is wrong to claim that that provision precludes valuation 2 from being carried out taking into account the sale of business tool, which the SRB had considered to be the tool best able to fulfil the objectives of the resolution. 719 Thirdly, with regard to the applicant’s arguments intended to call into question the independence of the valuer, it should be noted that it is not for valuers themselves to define what would be the most appropriate resolution tool. As the SRB points out, it is for the resolution authority to choose the most appropriate tool for the situation of the entity concerned. 720 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 commissioned Deloitte to carry out a valuation meeting the objectives of that tool cannot be regarded as undermining Deloitte’s independence. Finally, it should be noted that the applicant does not explain how the fact that the SRB itself carried out valuation 1 is capable of calling into question Deloitte’s independence when it carried out valuation 2 as those two valuations had different objectives. 13. The requests for measures of organisation of procedure and measures of inquiry 721 The applicant has requested that the Court order various measures of organisation of procedure and of inquiry. 722 First, in the application and the reply and by letter of 19 April 2021, the applicant asked the Court to order the production of various documents. In addition, by letter of 17 May 2021, the applicant asked the Court to put written questions to the Kingdom of Spain. 723 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. 724 Secondly, in the application, the applicant proposed that a number of witnesses be heard. 725 As regards applications made by a party for measures of organisation of procedure or measures of inquiry, it must be recalled that the General 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; judgment of 12 November 2020, Fleig v EEAS, C‑446/19 P, not published, EU:C:2020:918, paragraph 53). 726 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; judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C‑702/19 P, EU:C:2020:857, paragraph 29). 727 In the present case, it must be observed that the elements in the case file and the explanations provided during the hearing are sufficient to allow the Court to give a ruling, 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. 728 It follows that the applicant’s requests for measures of organisation of procedure and measures of inquiry must be rejected and the action must be dismissed in its entirety. V. Costs 729 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs as well as those incurred by the Commission, the SRB and Banco Santander, in accordance with the form of order sought by those parties. 730 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of Spain, the Parliament and the Council must therefore bear their own costs. On those grounds, THE GENERAL COURT (Third Chamber, Extended Composition), hereby: 1. Dismisses the action; 2. Orders Aeris Invest Sàrl to bear its own costs and pay the costs incurred by the European Commission, the Single Resolution Board (SRB) and Banco Santander, SA; 3. Orders the Kingdom of Spain, the European Parliament and the Council of the European Union 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 * Language of the case: Spanish.