Judgment;Abstract;Judgment (extracts) — ECLI:EU:T:2024:31
Date: 2024-01-24
Language of the case: German
Court formation: Eighth Chamber, Extended Composition
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible
Origin: Austria

summary and collective form; – guidance on how to calculate ex ante contributions for the 2021 contribution period using the calculation tool. 295 In that context, first, it follows from the case-law cited in paragraphs 150 to 159 above that, contrary to what the applicant claims, the SRB was not required to communicate to it all of the documents and data relating to each institution so as to enable it to verify fully the accuracy of the calculation of its ex ante contribution. In particular, the SRB was not required to communicate to it the documents containing the individual data of the other institutions which constituted business secrets. 296 Second, the applicant has not, inter alia, disputed that it was informed of the methodology used to calculate the ex ante contribution for the 2021 contribution period or of the provisional amount of the ex ante contribution payable by it, and therefore it was able to complete the form provided by the SRB and effectively submit its observations in relation to each of the steps of that calculation. 297 In those circumstances, there is nothing to show that the applicant did not have access to the elements which formed the basis of the calculation of its ex ante communication and which the SRB was required to communicate to it. 298 Furthermore, the applicant was able to set out its view on those elements using the online form mentioned in paragraph 293 above. It could thus submit its observations on the discretionary choices made by the SRB in the calculation of its ex ante contribution, such as the determination of the annual target level or the clarification of certain risk indicators in risk pillar IV, and was able to calculate its provisional ex ante contribution using the calculation tool provided by the SRB. 299 In that regard, it follows from the case-law of the Court of Justice that a form provided for the persons concerned to be able to set out their point view to the competent authority is, in principle, such as to allow them to comment in detail on the elements that must be taken into account by the competent authority and to set out, if they think it appropriate, information or assessments different from those already submitted to the competent authority (see, by analogy, judgment of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraphs 39 and 40). 300 That is the case here. 301 As part of the consultation procedure, the SRB invited the institutions to submit, first, observations on thirteen predefined subjects, which gave them the opportunity to comment on several aspects of the calculation of the ex ante contributions, including the method and the results of that calculation. Second, in the context of subject 14, the institutions could raise any other issue which they deemed relevant to the calculation of the ex ante contribution for the 2021 contribution period which was not already covered by the predefined subjects. The applicant was therefore able to submit observations on each element of that calculation or of the procedure by which that calculation was designed. 302 With regard, moreover, to the period prescribed for the submission of observations under the consultation procedure (here: two weeks), first, it must be observed that the applicant has not explained to what extent that period constituted a breach of its right to be heard. In that regard, it has simply asserted that it was ‘utopian’ to assume that the draft decision and the aggregated statistics could be reviewed and analysed within such a brief period of time, without pointing to specific aspects of those documents or to practical difficulties which prevented it from submitting observations, within the prescribed period, on the elements which formed the basis of the calculation of its ex ante contribution, such as those set out in paragraphs 296 and 298 above. The only specific element mentioned by the applicant in that context is the fact that the data communicated by the SRB were inadequate to verify the calculation process and the amount of its ex ante contribution. However, as has been found in paragraphs 295 to 297 above, it has not been demonstrated that the SRB was obliged to communicate to the applicant documents other than those mentioned in paragraph 294 above, and therefore it cannot be established on the basis of that fact that the two-week period was insufficient vis-à-vis the right to be heard. 303 Second, the applicant has been subject to the obligation to pay ex ante contributions since 2016, and therefore the 2021 contribution period was the sixth in which it participated. It follows from that fact that, in the course of the consultation procedure conducted by the SRB, it was already well informed about the process of calculating those contributions. In view of that fact, and in the absence of any particular circumstances relied on by the applicant, there is nothing to show that the period prescribed for the submission of observations was insufficient. 304 As regards, lastly, the SRB’s response to the observations submitted by the institutions, the applicant has not identified any specific observation to which the SRB did not reply. 305 Furthermore, the mere fact that the SRB ultimately decided not to amend the contested decision as compared with the draft decision which it had communicated to the institutions, with a view to acting upon their observations, cannot demonstrate that the consultation procedure infringed the applicant’s right to be heard. As the Court has already held (see, to that effect, judgment of 25 March 2015, Slovenská pošta v Commission, T‑556/08, not published, EU:T:2015:189, paragraph 89), such a fact is a disagreement as to the merits of the SRB’s assessment, but cannot constitute an infringement of those institutions’ right to be heard. 306 Accordingly, the applicant’s arguments cannot establish that the applicant was unable to make known its views effectively on all of the points of fact or of law which formed the basis of the contested decision. 307 In the light of the foregoing, the third plea must be dismissed. … On those grounds, THE GENERAL COURT (Eighth Chamber, Extended Composition) hereby: 1. Annuls Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund, in so far as it concerns Hypo Vorarlberg Bank AG; 2. Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Hypo Vorarlberg Bank, until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of the present judgment, of a new decision of the SRB fixing the applicant’s ex ante contribution to the Single Resolution Fund for 2021; 3. Orders the SRB to bear its own costs and to pay those incurred by Hypo Vorarlberg Bank; 4. Orders the European Parliament and the Council of the European Union to bear their own costs. Kornezov De Baere Petrlík Kecsmár Kingston Delivered in open court in Luxembourg on 24 January 2024. [Signatures] * Language of the case: German. 1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here. 2 Confidential data removed.