Provisional text
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
29 May 2024 (*)
(Economic and monetary union – Banking union – Single resolution mechanism for credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Decision of the SRB on the calculation of the 2021 ex ante contributions – Plea of illegality – Legal basis of Regulation No 806/2014 – Article 114 TFEU – Equal treatment – Commission’s margin of discretion – SRB’s margin of discretion – Duty to state reasons)
In Case T‑360/21,
Portigon AG, established in Dusseldorf (Germany), represented by D. Bliesener, V. Jungkind and C. van Kampen, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by J. Kerlin and D. Ceran, acting as Agents, and
B. Meyring, T. Klupsch and S. Ianc, lawyers,
defendant,
supported by
European Parliament, represented by U. Rösslein, M. Menegatti and G. Bartram, acting as Agents,
by
Council of the European Union, represented by J. Bauerschmidt, J. Haunold and A. Westerhof Löfflerová, acting as Agents,
and by
European Commission, represented by D. Triantafyllou and A. Steiblytė, acting as Agents,
interveners,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of A. Kornezov, President, G. De Baere, D. Petrlík (Rapporteur), K. Kecsmár and S. Kingston, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written part of the procedure,
further to the hearing on 1 March 2023,
gives the following
Judgment (1)
…
I.      Background to the dispute
2        The applicant is a credit institution established in Germany which is in the process of being dismantled. It continues to hold certain licences to carry out banking transactions and to provide financial services, such as deposit and lending operations and payment services. However, it holds those licences only for the purpose of completing its dismantling in an orderly fashion.
3        The transactions carried out to that end which are relevant to the present case include, inter alia, those involving the Erste Abwicklungsanstalt (‘the EAA’).
4        The EAA was established pursuant to the Finanzmarktstabilisierungsfondsgesetz (Law creating a financial markets stabilisation fund) of 17 October 2008 (BGBl. 2008 I, p. 1982) with a view to dismantling the applicant and to protecting a proportion of the applicant’s banking transactions.
5        The applicant transferred a significant proportion of its assets and liabilities to the EAA for the purpose of its dismantling. Some of those assets and liabilities were the subject of an actual transfer to the EAA by way of a spin-off and are no longer recorded in the applicant’s balance sheet.
6        A further share of the applicant’s assets and liabilities were not the subject of that spin-off but were rather simply transferred ‘economically’ or were the subject of a guarantee from the EAA. To that end, the applicant concluded with the EAA agreements for the transfer of risk to the EAA, whereas it retained actual ownership over that share of its assets and liabilities.
7        The applicant’s assets and liabilities which were the subject only of an economic transfer to the EAA include, inter alia, the components of the portfolio of over-the-counter derivatives (‘the EAA OTC derivatives portfolio’). That portfolio consists, in essence, first, of the applicant’s rights and obligations arising from, or related to, certain derivatives and, second, of sureties guaranteeing the claims arising from those derivatives.
8        The applicant has legal and regulatory responsibility for the management of the assets of the EAA portfolio that were not the subject of an actual transfer to the EAA by way of a spin-off. Since the EAA cannot exploit those assets itself, the applicant manages them as a trustee under contracts concluded with the EAA. The applicant operates in that regard in its own name, but in accordance with the instructions and on behalf of the EAA.
9        Until they are realised or transferred to the EAA, the components of the EAA OTC derivatives portfolio are included in the applicant’s balance sheet as fiduciary assets or liabilities.
10      By the contested decision, the SRB set, pursuant to Article 70(2) of 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 ex ante contributions to the Single Resolution Fund (SRF) (‘the ex ante contributions’) for 2021 (‘the 2021 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation (‘the institutions’), including the applicant.
11      By assessment notice of 21 April 2021, the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Agency for Financial Services Supervision, Germany; ‘the BaFin’), in its capacity as the national resolution authority (‘the NRA’), within the meaning of Article 3(1)(3) of Regulation No 806/2014, ordered the applicant to pay its ex ante contribution for the 2021 contribution period, as set by the SRB.
12      The applicant, on the one hand, and the SRB and the BaFin, on the other hand, are in disagreement as to the elements which must be relied on for the purpose of calculating the applicant’s ex ante contribution. Specifically, the applicant considers that account should not be taken in that regard of the liabilities forming part of the EAA OTC derivatives portfolio, and that it is not part of a group that has been put under restructuring after receiving any State or equivalent funds within the meaning of Article 6(8)(a) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44). The SRB and the BaFin consider, by contrast, that the applicant’s ex ante contribution must be calculated on the basis of its balance sheet total and that the applicant is an institution undergoing restructuring.
…
IV.    Law
…
A.      The pleas of illegality in respect of Regulation No 806/2014, Directive 2014/59 and Delegated Regulation 2015/63
1.      The first plea, in so far as it is based on pleas of illegality
34      In the context of its first plea, the applicant raises, firstly, pleas of illegality against Regulation No 806/2014 and Directive 2014/59, second, complaints concerning the lawfulness of the contested decision and, third, three pleas of illegality against Delegated Regulation 2015/63.
35      It is necessary first of all to examine the pleas of illegality, as the complaints concerning the lawfulness of the contested decision will be assessed in paragraphs 337 to 351 below.
(a)    The first plea, in so far as it is based on pleas of illegality in respect of Regulation No 806/2014 and Directive 2014/59
36      The applicant raises pleas of illegality against Regulation No 806/2014 and Directive 2014/59 on the ground that the EU legislature erred in choosing Article 114(1) TFEU as the legal basis for their adoption.
37      First, those acts have no connection with the internal market since, if the ex ante contributions were provided for at Member State level, they would not constitute a barrier to the free movement of services and nor would they entail significant distortions of competition.
38      Second, the EU legislature is not authorised to base the system of ex ante contributions on Article 114(1) TFEU, since those contributions constitute ‘fiscal provisions’ within the meaning of Article 114(2) TFEU. In particular, the English-language and French-language versions of Article 114(2) TFEU make clear that the scope of that provision goes beyond the concept of ‘tax’. Accordingly, the EU legislature should have taken Article 113 or Article 115 TFEU as the basis for introducing the obligation to pay ex ante contributions.
39      The SRB, the Parliament, the Council and the Commission dispute that line of argument.
40      As a preliminary point, it must be recalled that the choice of the legal basis for an EU measure must rest on objective factors amenable to judicial review, which include the aim and content of that measure (see Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 76 and the case-law cited, and judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C‑244/17, EU:C:2018:662, paragraph 36).
41      The legislative acts adopted on the basis of Article 114(1) TFEU must, first, comprise measures for the approximation of the provisions laid down by law, regulation or administrative action in the Member States and, second, have as their object the establishment and functioning of the internal market (judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 100).
42      In the first place, it must be recalled that Article 114 TFEU may be used as a legal basis only where it is actually and objectively apparent from the legal act that its purpose is to improve the conditions for the establishment and functioning of the internal market (see judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 113 and the case-law cited).
43      In the present case, it follows, inter alia, from recitals 1 and 3 of Regulation No 806/2014 and from recital 1 of Directive 2014/59 that those acts were adopted against a backdrop of economic and financial crisis, which showed that, at EU level, there was a lack of tools to deal effectively with the risk presented by institutions experiencing financial difficulties, which forced Member States to use public funds to support such institutions.
44      Likewise, it follows from recital 1 of Regulation No 806/2014 and from recital 3 of Directive 2014/59 that that crisis demonstrated that the functioning of the internal market for banking services was under threat and there was an increasing risk of financial fragmentation. That was a real source of concern in the internal market in which banks should have been able to carry out significant cross-border activities, whereas a decrease in such activities had been observed due to fear of contagion.
45      Furthermore, the EU legislature noted, in recitals 2 to 4 and 12 of Regulation No 806/2014, and in recitals 4 and 5 of Directive 2014/59, that divergences between national resolution rules and corresponding administrative practices and the lack of a unified decision-making process for resolution in the banking union contributed to a lack of confidence on the part of national banking systems towards those of the other Member States, including Member States not participating in the SRM, and to market instability, as they did not ensure predictability as to the possible outcome of a bank failure. Those divergences could also lead to banks and their customers having higher borrowing costs solely because of those banks’ place of establishment and irrespective of their real creditworthiness.
46      Furthermore, the EU legislature emphasised, in recitals 9 and 19 of Regulation No 806/2014, the fact that as long as resolution rules, practices and approaches to burden-sharing remained national and the financial resources needed for funding resolution were raised and spent at national level, the link between the Member States and the banking sector would not be fully broken and the internal market would remain fragmented. That would restrict the cross-border activities of banks, create obstacles to the exercise of fundamental freedoms and distort competition in the internal market.
47      Finally, as is apparent from recitals 9 and 10 of Directive 2014/59, the purpose of that Directive is to prevent national authorities having the same level of control over institutions or the same ability to resolve them, which can affect the funding costs of institutions differently across Member States, thus hampering the exercise of the freedom of establishment afforded to them by the internal market.
48      It is in the light of those considerations that Regulation No 806/2014 seeks to weaken the ties between the perceived fiscal position of individual Member States and the funding costs of banks and undertakings operating in those Member States, as well as to place the responsibility of financing the stabilisation of the financial system on the financial industry as a whole.
49      Thus, as Article 1 of Regulation No 806/2014 states, that regulation establishes, inter alia, uniform rules and a uniform procedure for the resolution of institutions, which should be applied by the SRB, in order to address the threats mentioned in paragraphs 43 to 46 above.
50      Similarly, Directive 2014/59 establishes, inter alia, harmonised rules and a harmonised procedure for the resolution of institutions, in order to address the concerns of the EU legislature set out in paragraphs 43 to 45 and 47 above.
51      The SRF and the national financing arrangements are essential elements of those rules and that procedure, which make it possible, as is apparent from Articles 67 and 76 and recital 107 of Regulation No 806/2014 and from Articles 100 and 101 and recitals 103, 104 and 108 of Directive 2014/59, to ensure the efficient exercise of resolution powers and to contribute to the financing of the resolution tools while ensuring their efficient application.
52      In order to ensure sufficient financial means in the SRF and the national financing arrangements, they are financed, in the light of the considerations set out in paragraphs 43 to 46 and 48 above, inter alia, by the ex ante contributions paid by the institutions.
53      Consequently, the payment of those contributions ensures the efficient application of the uniform or harmonised rules and the uniform or harmonised procedure for the resolution of institutions. In turn, as is apparent from recitals 12 and 19 of Regulation No 806/2014 and from recitals 9 and 10 of Directive 2014/59, the rules setting those contributions mean that differing national practices can be prevented from hindering the exercise of fundamental freedoms or distorting competition in the internal market.
54      In the light of the foregoing, it must be stated that the purpose of Regulation No 806/2014 and Directive 2014/59 is to improve the conditions for the establishment and functioning of the internal market.
55      Furthermore, as regards the condition laid down in Article 114(1) TFEU, namely that the EU measure concerned must comprise measures for the approximation of the provisions laid down in Member States, it is apparent, inter alia, from recital 2 of Regulation No 806/2014 and recital 4 of Directive 2014/59, first, that there was no unified decision-making process for the resolution of institutions in the European Union and, second, that there were significant substantive and procedural differences between the laws, regulations and administrative provisions governing the insolvency of the institutions in the Member States.
56      In that context, the EU legislature established rules and a procedure, which are uniform within the banking union and harmonised between the Member States, for the resolution of institutions, as well as a uniform procedure for the collection of the ex ante contributions in order to ensure the efficient application of those rules and procedures, as set out in paragraphs 49 to 53 above.
57      It follows from all the foregoing considerations that Regulation No 806/2014 and Directive 2014/59 satisfy the conditions set out in Article 114(1) TFEU.
58      In the second place, it is necessary to examine the applicant’s argument that the provisions of Regulation No 806/2014 and of Directive 2014/59 requiring institutions to pay ex ante contributions must be regarded as ‘fiscal provisions’ and are therefore not covered by the harmonising powers of the EU legislature under Article 114(2) TFEU.
59      Article 114(2) TFEU provides that paragraph 1 of that provision is not to apply, inter alia, to ‘fiscal provisions’.
60      With regard to the interpretation of the words ‘fiscal provisions’, it must be stated that the FEU Treaty does not contain any definition of those words (see, to that effect, judgment of 29 April 2004, Commission v Council, C‑338/01, EU:C:2004:253, paragraph 63).
61      That being said, it follows from the case-law of the Court of Justice that a levy paid by economic operators in a particular sector is not fiscal in nature in a situation where, in particular, it is directly allocated solely to the financing of expenditure in that sector and where that expenditure is necessary for the functioning of that sector in order, in particular, to stabilise it (see, to that effect and by analogy, judgment of 11 July 1989, Schräder HS Kraftfutter, 265/87, EU:C:1989:303, paragraphs 9 and 10).
62      That reasoning also applies in the case of ex ante contributions, which follow an insurance-based logic and which are paid by economic operators in a particular sector in order to finance exclusively expenditure of that sector.
63      Thus, with regard to the nature of the ex ante contributions, it has already been observed in paragraph 43 above that Regulation No 806/2014 and Directive 2014/59 had been adopted in a context of economic and financial crisis which had shown that, at EU level, there was a lack of tools to deal effectively with the risk presented by institutions experiencing financial difficulties, which forced Member States to use public funds to support such institutions. The purpose of the SRM is to avoid the damages that have resulted from failures of institutions during such crises, since the failure of institutions in just one Member State may affect the stability of the financial markets as a whole, as is apparent from recitals 8 and 12 of Regulation No 806/2014. The same is true of Directive 2014/59, as is stated in recitals 3 and 5 thereof.
64      In that context, the EU legislature took the view that it was for the financial sector as a whole to finance the stabilisation of the financial system, as is apparent, inter alia, from recital 100 of Regulation No 806/2014 and recital 103 of Directive 2014/59.
65      From that perspective, the specific nature of the ex ante contributions consists, as is confirmed by recitals 105 to 107 of Directive 2014/59 and recital 41 of Regulation No 806/2014, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions (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).
66      Therefore, in accordance with Article 67(2) and (4) and recital 61 of Regulation No 806/2014 and with Articles 101 and 103 and recital 49 of Directive 2014/59, the ex ante contributions are collected from economic operations in the financial sector in order to supply the SRF, which may be used solely for the purpose of the efficient application of the resolution tools and the efficient exercise of the resolution powers where such measures prove necessary in order to achieve the objective of financial stability in that sector.
67      In that regard, it must be observed that, as follows from Article 1 of Regulation No 806/2014 and Article 1 of Directive 2014/59, the measures referred to in paragraph 66 above are applied solely for the benefit of the institutions which are required to pay the ex ante contributions.
68      It is true that neither Regulation No 806/2014 nor Directive 2014/59 establishes any automatic link between the payment of the ex ante contribution and the resolution of the institution concerned. That is why the ex ante contributions cannot be regarded as insurance premiums which could be paid monthly and reimbursed (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 70 and 73).
69      The fact remains that the institutions benefit in two respects from the SRF and the national financing arrangements, which are financed specifically by their ex ante contributions.
70      First, where institutions are failing or are likely to fail, their financial situation can be remedied in the context of a resolution procedure which may be initiated in their favour if the other conditions laid down in Article 18 of Regulation No 806/2014 or Article 32 of Directive 2014/59 are also met. Such a procedure thus allows the financial means of the SRF or of the national financing arrangements to be used for the benefit of such institutions, it being recalled that those means were provided by the institutions’ contributions.
71      Second, all institutions benefit from their ex ante contributions through the stability of the financial system, which is ensured by the SRF and the national financing arrangements.
72      The risk covered by the SRF and the national financing arrangements is the risk which the financial sector as a whole poses to the stability of the financial system (see judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 72).
73      It follows that it is from an insurance based rather than a tax-based perspective that the SRF and the national financing arrangements seek to ensure the stability of the financial sector as a whole, with the objective of ensuring protection against its own crisis for the benefit of all institutions.
74      That insurance-based purpose is also reflected in the calculation of the ex ante contributions, given that they are not the result of applying a certain rate to a basis of assessment but rather, in accordance with Articles 102 and 103 of Directive 2014/59 as well as with Articles 69 and 70 of Regulation No 806/2014, are the result of the setting of a final target level, and thereafter of an annual target level, which is then divided between the institutions (see, to that effect, 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). That division of the annual target level is based, inter alia, as is also apparent from recital 107 of that directive and recital 109 of that regulation, on the risk represented by each institution to the stability of the financial system, which provides incentives to the institutions to operate under a less risky model.
75      It follows from the foregoing that the institutions pay the ex ante contributions in an insurance-based logic, it being recalled that those contributions are directly allocated solely to the financing of expenditure of the financial sector of which those institutions are members and that that expenditure is necessary for the functioning of that sector in order, inter alia, to stabilise it should certain institutions fail and to limit contagion effects.
76      Accordingly, the provisions of Regulation No 806/2014 and of Directive 2014/59 which require the institutions to pay ex ante contributions and specify the methods for their calculation do not constitute ‘fiscal provisions’ within the meaning of Article 114(2) TFEU.
77      That conclusion is not called into question by the applicant’s argument that, in accordance with certain language versions of Article 114(2) TFEU, the words ‘fiscal provisions’ should have a broader scope.
78      All language versions of an EU act must, in principle, be recognised as having the same value. In order to maintain the uniform interpretation of EU law, in the case of divergence between those versions, the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 49 and the case-law cited).
79      Thus, the wording used in certain language versions of an act cannot serve as the sole basis for the interpretation of that act, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of EU law (see judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 50 and the case-law cited).
80      In the light of the foregoing, the first plea, in so far as it is based on pleas of illegality in respect of Regulation No 806/2014 and Directive 2014/59, must be dismissed.
(b)    The first plea, in so far as it is based on pleas of illegality in respect of Delegated Regulation 2015/63
81      The applicant raises three pleas of illegality against Delegated Regulation 2015/63.
82      As a preliminary point, it must be observed that Article 4 of Delegated Regulation 2015/63 provides that the SRB is to determine the ex ante contribution to be paid by each institution in proportion to its risk profile on the basis of information provided by the institution and by applying the methodology set out in Articles 4 to 13 of that delegated regulation.
83      Article 5 of Delegated Regulation 2015/63, entitled ‘Risk adjustment of the basic annual contribution’, sets out, inter alia, which liabilities are excluded from the calculation of those contributions. Article 6 of that delegated regulation lists the risk pillars and indicators which the SRB must take into account to assess the risk profile of institutions, whilst Article 7 of the delegated regulation specifies the relative weight of each risk pillar and indicator which must be applied by the SRB when it assesses the risk profile of each institution.
84      Article 8 of Delegated Regulation 2015/63 relates to the application of the risk indicators in specific cases.
85      Furthermore, Article 9 of Delegated Regulation 2015/63, entitled ‘Application of the risk adjustment to the basic annual contribution’, provides that the SRB is to determine the adjusting multiplier on the basis of the risk indicators stated in Article 6 of that delegated regulation in accordance with the formula and the procedures set out in Annex I to the delegated regulation, and that it is to determine the annual contribution of each institution for each contribution period by multiplying the basic annual contribution by that adjusting multiplier in accordance with the formula and the procedures set out in Annex I to the same delegated regulation.
86      Lastly, Annex I to Delegated Regulation 2015/63 lays down the procedure for the calculation of the annual contributions of institutions over several steps.
(1)    The first plea of illegality, alleging that Delegated Regulation 2015/63 exceeds the powers conferred on the Commission by Directive 2014/59
87      According to the applicant, Delegated Regulation 2015/63 exceeds the limits defined in Directive 2014/59, which is its delegating act. Since the framework of that directive is laid out by Article 114(1) TFEU, a delegated act is prohibited from departing from the framework defined by the latter provision and from applying to institutions which have no connection with the internal market. This is the case with the applicant, which is in the process of dismantling its activities.
88      The SRB and the Commission dispute that line of argument.
89      It must be observed that this plea of illegality is based on the erroneous assumption that the applicant ‘has no connection with the internal market’.
90      Even though the applicant is in the process of dismantling its activities, the fact remains that, by its own admission, it continues to carry out banking transactions and to provide financial services. In those circumstances, it participates, on that basis, in trade within the internal market.
91      Next, assuming that the applicant’s complaint is to be understood as meaning that the Commission was required to exclude from the scope of Delegated Regulation 2015/63 those institutions with a minimal level of business within the internal market, the following must be observed.
92      The ex ante contributions calculated on the national base are imposed on the basis of Article 103(2) of Directive 2014/59.
93      It is apparent from that provision that ‘institutions’ within the meaning of Article 2(1)(23) of Directive 2014/59 are required to pay those contributions.
94      It follows from Article 2(1)(23) of Directive 2014/59, read together with Article 2(1)(2) of that same directive, that those institutions include, inter alia, credit institutions within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1), which do not number amongst the entities covered by Article 2(5) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).
95      According to Article 4(1)(1) of Regulation No 575/2013, a ‘credit institution’ means an undertaking the business of which is to take deposits or other repayable funds from the public and to grant credits for its own account, regardless of the scale of that business.
96      Similarly, although Article 2(5) of Directive 2013/36 does exclude certain entities from the scope of that directive, it does not exclude from that scope institutions with a minimal level of business on the internal market, such as institutions in the process of being dismantled.
97      It follows from the foregoing that Article 103(2) of Directive 2014/59 makes all the institutions which it covers subject to the payment of the ex ante contributions, regardless of the extent of their business on the internal market.
98      In addition, Article 103(7) of Directive 2014/59, which is not the legal basis for Delegated Regulation 2015/63, does not require the Commission to exempt certain institutions from the obligation to pay ex ante contributions on account of the minimal level of their business on the internal market because they are being dismantled.
99      In those circumstances, the applicant’s argument that Regulation 2015/63 infringes Directive 2014/59 because it failed to exempt such institutions from its scope can only be rejected.
100    That conclusion is not invalidated by the applicant’s argument that it follows from the purpose and the scheme of Directive 2014/59 and of Delegated Regulation 2015/63, and from their interpretation in the light of Article 114 TFEU, that those acts do not impose the obligation to pay ex ante contributions on institutions in the process of being dismantled which are not in competition with the other institutions operating on the internal market.
101    In that regard, first, it must be observed that the wording of the provisions referred to in paragraphs 93, 94 and 98 above is clear and precise as regards the scope ratione personae of that obligation and the fact that the Commission is under no obligation to exempt certain types of institutions from that scope. Second, it follows from paragraph 90 above that the applicant still carries on activities on the internal market.
102    In the light of the foregoing, this plea of illegality must be dismissed.
(2)    The second plea of illegality, alleging that Delegated Regulation 2015/63 infringes essential elements of Directive 2014/59
103    The applicant submits, in essence, that Delegated Regulation 2015/63 did not take sufficient account of the risk profile of the institutions concerned when drawing up the method of calculating the ex ante contributions. Article 6 of that delegated regulation thus infringes an essential provision of Directive 2014/59, namely Article 103(7) thereof.
104    That infringement stems, in particular, from the fact that Article 6 of Delegated Regulation 2015/63 does not provide for any reduction in or exemption from the ex ante contributions for institutions, such as the applicant, whose risk exposure, probability of resolution or importance to the stability of the financial markets is very reduced, if not non-existent.
105    The SRB and the Commission dispute that line of argument.
106    As a preliminary point, it must be recalled that, in the context of a delegated power within the meaning of Article 290 TFEU, the Commission enjoys, in the exercise of the powers conferred on it, broad discretion where it is called on, inter alia, to undertake complex assessments and evaluations (see, to that effect, judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 53 and the case-law cited).
107    That is the case in connection with the establishment of the criteria for adjusting the ex ante contributions in proportion to the risk profile pursuant to Article 103(7) of Directive 2014/59.
108    In that regard, it must be borne in mind that the specific nature of those contributions consists, as is apparent from recitals 105 to 107 of Directive 2014/59 and from recital 41 of Regulation No 806/2014, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation (see, to that effect, 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).
109    In that context, and as is apparent from recital 114 of Directive 2014/59, the EU legislature tasked the Commission with specifying, by delegated act, the manner in which the institutions’ contributions to resolution financing arrangements are to be adjusted in proportion to their risk profile.
110    Similarly, recital 107 of that directive states that, in order to ensure a fair calculation of the ex ante contributions to national financing arrangements and provide incentives to operate under a less risky model, those considerations must take account of the credit, liquidity and market risk incurred by the institutions.
111    It follows from the foregoing that the Commission had to draw up rules for adjusting the ex ante contributions in proportion to the risk profile of the institutions in pursuit of two linked objectives, namely, first, to ensure account is taken of the different risks to which the activities of – banking or, more broadly, financial – institutions give rise and, second, to encourage those same institutions to operate under a less risky model.
112    In addition, as is clear from the documents related to the adoption of Delegated Regulation 2015/63, in particular the document entitled ‘JRC technical work supporting Commission second level legislation on risk based contributions to the (single) resolution fund’ (‘the JRC technical study’) and ‘Commission Staff Working Document: estimates of the application of the proposed methodology for the calculation of contributions to resolution financing arrangements’, the drawing up of such rules entailed complex assessments and evaluations on the part of the Commission, since it had to examine the different factors in the light of which various types of risk were perceived in the banking and financial sectors.
113    In the light of the foregoing, the Commission had broad discretion for the purpose of adopting, pursuant to Article 103(7) of Directive 2014/59, the rules specifying the notion of ‘adjusting ex ante contributions in proportion to the risk profile of institutions’.
114    In those circumstances, as regards the method of adjusting the basic annual contributions pursuant to Article 103(7) of Directive 2014/59, the review by the Courts of the European Union must be limited to verifying whether the exercise of the discretion afforded to the Commission has been vitiated by a manifest error of assessment or a misuse of powers, or whether the Commission has manifestly exceeded the limits of that discretion (see, to that effect, judgment of 21 July 2011, Etimine, C‑15/10, EU:C:2011:504, paragraph 60).
115    It is therefore for the applicant to demonstrate that Article 6 of Delegated Regulation 2015/63 is vitiated by such defects.
116    In that regard, first of all, it follows from paragraphs 92 to 97 above that Directive 2014/59 does not provide for any exemption as regards the obligation to pay ex ante contributions for institutions whose risk exposure, probability of resolution or importance to the stability of the financial markets is minimal. Nor is any similar exemption provided for in Regulation No 806/2014.
117    Similarly, aside from own funds and covered deposits, neither Directive 2014/59 nor Regulation No 806/2014 provided for an exemption in relation to certain liabilities of the institutions, such as liabilities held in trust, for the purpose of calculating the ex ante contributions.
118    Thus, in accordance with Article 103(2) of Directive 2014/59 and with Article 70(2) of Regulation No 806/2014, all institutions are, in principle, subject to the obligation to pay ex ante contributions and all liabilities of those institutions are to be taken into account, in principle, for the purpose of calculating those contributions, besides own funds and covered deposits.
119    Such an approach is consistent with the insurance-based logic of the system of ex ante contributions, namely that the financial sector as a whole is to provide adequate financial resources for the SRM to be able to fulfil its functions (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). According to that logic, all institutions, including those whose probability of resolution is allegedly lower having regard to the liabilities they hold, benefit from their ex ante contributions through the stability of the financial system that is ensured by the SRF.
120    In those circumstances, the applicant cannot claim that the Commission was required to exclude from the system of ex ante contributions those institutions with liabilities held in trust or that it was obliged to exclude such liabilities from that system, solely because those liabilities pose a lower risk or because an institution with such liabilities is less likely to enter into resolution or is less important to the stability of the financial markets.
121    Next, in accordance with Article 103(2) of Directive 2014/59 and with Article 70(2) of Regulation No 806/2014, ex ante contributions are to be adjusted in proportion to the risk profile of the institutions. Thus, pursuant to Article 103(7) of Directive 2014/59, the Commission is empowered to specify, by a delegated act, the detailed arrangements for that adjustment of the ex ante contributions in proportion to the risk profile of those institutions.
122    To that end, Article 103(7) of Directive 2014/59 provides for eight factors which the Commission must take into account for the purpose of such an adjustment. Although those elements do include the ‘risk exposure of the institution’, the ‘probability that the institution enters into resolution’ and the ‘importance of the institution to the stability of the financial system or economy of one or more Member States or of the Union’, and therefore the Commission is required to take account of them when adopting a delegated act such as Delegated Regulation 2015/63, they are just three of the eight elements which the Commission must take into account when drawing up such an act.
123    In addition, nothing in Article 103(7) of Directive 2014/59 states that the Commission is required to attach greater significance to one or more of those elements.
124    Finally, and in any event, the three elements put forward by the applicant with regard to those institutions in a comparable situation to its own, namely their risk exposure, the probability of their resolution or their importance to the stability of the financial markets, were indeed taken into account in the different risk pillars and indicators provided for in Article 6 of Delegated Regulation 2015/63, and therefore the particular situation of such institutions is reflected in the calculation of the ex ante contributions.
125    In those circumstances, the applicant has failed to demonstrate that Article 6 of Delegated Regulation was vitiated by a manifest error or a misuse of powers or that, in adopting it, the Commission manifestly exceeded the limits of its discretion because that provision does not provide for any reduction in or exemption from ex ante contributions for institutions, such as the applicant, whose risk exposure, probability of resolution or importance to the stability of the financial markets is allegedly very reduced, if not non-existent.
126    That conclusion is not called into question by the applicant’s argument that Delegated Regulation 2015/63 does not provide for any mechanism which takes into consideration a particularly low-risk business model, which is illustrated by the fact that, pursuant to Article 6(6)(a) of that delegated regulation, the ‘overall business model’ of an institution can only be taken into account by the SRB with a view to increasing the ex ante contribution of the institution concerned.
127    Under Article 103(7) of Directive 2014/59, when it adopts delegated acts in order to implement that provision, the Commission is obliged to take into account the elements listed in points (a) to (h) of the provision, with a view to specifying the notion of ‘adjusting ex ante contributions in proportion to the risk profile of institutions’. However, nothing in Article 103(7) of that directive requires it to provide for a risk pillar or indicator in the context of which an institution’s business model could, as such, lead to a reduction in that institution’s ex ante contribution.
128    In addition and in any event, the different risk pillars and indicators provided for in Article 6 of Delegated Regulation 2015/63 allow account to be taken, in a targeted manner, of various characteristics of a low-risk business model, with the result that an institution with such a model is required to pay a lower ex ante contribution.
129    In the light of the foregoing, this plea of illegality must be dismissed.
(3)    The third plea of illegality, based on the sub-delegation of power to the SRB
130    The applicant claims that Delegated Regulation 2015/63 infringes Article 290(1) TFEU since Article 6(1)(d) of Delegated Regulation 2015/63 entrusts to the SRB the power to determine additional risk indicators. It follows, however, from Article 290(1) TFEU and from Article 103(7)(d) of Directive 2014/59 that it is for the Commission to define the detailed arrangements for adjusting the ex ante contributions payable by the institutions in proportion to the probability of them entering into resolution, and that the Commission cannot sub-delegate that power.
131    That illegality of Delegated Regulation 2015/63 cannot be remedied by Article 6(5) to (8) of that same delegated regulation, which lay down details concerning the determination of various risk sub-indicators, or by Article 7(4) of that delegated regulation, which provides for a system for the weighting of the risk sub-indicators.
132    The SRB and the Commission dispute that line of argument.
133    As a preliminary point, the Commission’s argument that the present complaint is ineffective since Delegated Regulation 2015/63, considered in isolation, is addressed not to the SRB but only to the national resolution authorities, and it is only pursuant to the rule set out in Article 70(6) of Regulation
No 806/2014 that the SRB is bound by the provisions of Delegated Regulation 2015/63, must be dismissed.
134    It is true that Delegated Regulation 2015/63 was adopted on the basis of Article 103(7) of Directive 2014/59 and that Article 6(1)(d) of that delegated regulation is thus addressed, in the first place, solely to the NRAs. That provision was extended to the SRB solely by means of Article 70(6) and Article 5(1) of Regulation No 806/2014, under which the delegated acts adopted pursuant to Article 103(7) of Directive 2014/59 also apply to the determination of the ex ante contributions in accordance with Regulation No 806/2014 and according to which the SRB is deemed, for the purpose of applying Regulation No 806/2014 and Directive 2014/59, as an NRA where it performs tasks and exercises powers entrusted to the NRAs pursuant to that directive.
135    In those circumstances, the Commission’s argument can be understood as meaning that it is not by a decision of the Commission, contained in Delegated Regulation 2015/63, but by a decision of the EU legislature, contained in Regulation No 806/2014, that the powers referred to in Article 6(1)(d) of Delegated Regulation 2015/63 were entrusted to the SRB. It is thus not a sub-delegation of power from the Commission to the SRB, but rather a direct delegation from the EU legislature to the SRB in a legislative act.
136    Such a conclusion is, however, at odds with the timeline of the adoption of the acts at issue, in particular in view of the fact that Regulation No 806/2014 was adopted before Delegated Regulation 2015/63. Whereas Regulation No 806/2014 was adopted on 15 July 2014, that is, two months after the adoption of Directive 2014/59, Delegated Regulation 2015/63 was adopted only on 21 October 2014, namely three months later.
137    It follows, first, that the EU legislature could not approve, by the adoption of Regulation No 806/2014, any grant to the SRB, by Delegated Regulation 2015/63, of some of the powers delegated to the Commission by Article 103(7) of Directive 2014/59. Second, the Commission was necessarily aware, when Delegated Regulation 2015/63 was adopted, that, when it entrusted – pursuant to Article 6(1)(d) of that delegated regulation – certain powers to the ‘resolution authorities’, it entrusted those powers to the SRB, in so far as concerned the Member States to which Regulation No 806/2014 was addressed.
138    Furthermore, the fact that the Commission was well aware of the foregoing is confirmed by the wording of recital 7 of Delegated Regulation 2015/63, under which ‘the notion of resolution authority under [that delegated regulation] should also include the [SRB]’.
139    The decision to entrust certain powers to the SRB in the context of the risk pillar ‘Additional risk indicators to be determined by the resolution authority’ (‘risk pillar
IV’) – regardless of their nature – therefore follows from a decision of the Commission, since that decision was taken when the Commission adopted Delegated Regulation 2015/63.
140    Next, it is necessary to analyse the nature of the powers granted to the SRB in order to assess whether the Commission delegated to it powers under Article 290(1) TFEU.
141    Under Article 6(1)(d) of Delegated Regulation 2015/63, risk pillar
IV is composed of the additional risk indicators to be determined by the NRA.
142    In accordance with the first subparagraph of Article 6(5) of Delegated Regulation 2015/63, risk pillar
IV consists of three risk indicators, namely, first, ‘trading activities, off-balance sheet exposures, derivatives, complexity and resolvability’, second, ‘membership in an Institutional Protection Scheme’ and, third, ‘extent of previous extraordinary public financial support’.
143    Under the second subparagraph of Article 6(5) of Delegated Regulation 2015/63, when determining those risk indicators, the SRB must take account ‘of the probability that the institution concerned would enter resolution and of the consequent probability of making use of the resolution financing arrangement where the institution would be resolved’.
144    It follows from the wording of the second subparagraph of Article 6(5) of Delegated Regulation 2015/63 that that provision confers discretion on the SRB as to how it is to ‘take account’, for the purposes of determining those risk indicators, ‘of the probability that the institution concerned would enter resolution and the consequent probability of making use of the resolution financing arrangement where the institution would be resolved’, because the criteria stated in the provision require clarification by the SRB in order to be applied to a particular case.
145    As regards the first risk indicator under risk pillar
IV, which concerns trading activities, off-balance sheet exposures, derivatives, and complexity and resolvability, Article 6(6) of Delegated Regulation 2015/63 provides for several elements which the SRB must take into account when determining that indicator, some of which may lead to the risk profile of the institution concerned being increased and others which may see it decrease.
146    Thus, the four elements capable of entailing an increase in that risk profile are as follows: first, ‘the importance of trading activities relative to the balance sheet size, the level of own funds, the riskiness of the exposures, and the overall business model’; second, ‘the importance of the off-balance sheet exposures relative to the balance sheet size, the level of own funds, and the riskiness of the exposures’; third, ‘the importance of the amount of derivatives relative to the balance sheet size, the level of own funds, the riskiness of the exposures, and the overall business model; and, fourth, ‘the extent to which … the business model and organisational structure of an institution are deemed complex’.
147    There are two elements which may result in the risk profile being decreased, namely ‘the relative amount of derivatives which are cleared through a central counterparty (CCP)’ and ‘the extent to which … an institution can be resolved promptly and without legal impediments’.
148    It is apparent from the wording of Article 6(6) of Delegated Regulation 2015/63 that that provision affords the SRB discretion as regards the ‘importance’ which the SRB must attach to the ‘trading activities’, the ‘off-balance sheet exposures’ and the ‘amount of derivatives’, as well as the relationship between the various elements mentioned in that provision.
149    Thus, whilst it is apparent from Article 6(6) of Delegated Regulation 2015/63 that, according to the first risk sub-indicator mentioned in that provision, the importance of the ‘trading activities’ must be compared with the balance sheet size, the level of own funds, the riskiness of the exposures and the overall business model, the provision does not specify how that comparison is actually to be made.
150    The same is true of the second and third risk sub-indicators provided for in Article 6(6)(a)(ii) and (iii) of Delegated Regulation 2015/63.
151    Furthermore, as for the determination of the risk indicator ‘Membership in an Institutional Protection Scheme’, it follows from Article 6(7) of Delegated Regulation 2015/63 that the SRB is to take into account the adequacy of the amount of funds which are available without delay together with the amount of funds needed ‘for a credible and effective support of [the institution concerned]’, as well as the degree of legal or contractual certainty that those funds ‘will be fully utilized before any extraordinary public support may be requested’.
152    It is clear from the wording of that provision that the SRB enjoys discretion as regards compliance with the conditions laid down in the provision, which relate to the adequacy of the available funds of the Institutional Protection Scheme in question together with the funds needed for the financing of the institution at issue and to the degree of legal or contractual certainty relating to those funds.
153    The same is true vis-à-vis the weight of the different risk indicators in the context of risk pillar
IV, as provided for in Article 7(4) of Delegated Regulation 2015/63.
154    Although Article 7(4) of Delegated Regulation 2015/63 does clearly state the relative weight of the three risk indicators which make up risk pillar
IV and which are mentioned in paragraph 142 above, it is unclear from that provision how the different risk sub-indicators within the first two risk indicators are to be weighted. In particular, the provision does not specify whether that weight must be divided between such risk indicators proportionately. Thus, Article 7(4) of Delegated Regulation 2015/63 affords the SRB discretion as regards determining the weight of the various risk sub-indicators making up those risk indicators, which have to be taken into account in accordance with Article 6(5) to (7) of Delegated Regulation 2015/63.
155    It follows from the foregoing that the provisions contained in Article 6(5) to (7) and Article 7(4) of Delegated Regulation 2015/63, which concern risk pillar
IV, confer a discretionary power on the SRB.
156    However, granting such discretion is not the same as a delegation of power from the Commission to the SRB within the meaning of Article 290(1) TFEU.
157    In that regard, a distinction must be drawn between the power provided for in Article 290(1) TFEU, namely the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of a legislative act, and the power to apply – legislative or non-legislative – acts of general application to persons or situations falling within the scope of such acts.
158    First, Delegated Regulation 2015/63 does not contain any provision by which the Commission conferred on the SRB a delegated power for the purpose of adopting acts of general application which supplement or amend certain elements of Directive 2014/59, Regulation No 806/2014 or that delegated regulation. By contrast, several provisions of the delegated regulation, such as Articles 4 and 6 to 9 thereof, confirm the power granted to the SRB by Directive 2014/59 and by Regulation No 806/2014 to apply those acts of general application by calculating the ex ante contributions of the institutions which fall within their scope.
159    Second, despite the name given to risk pillar
IV, contained in Article 6(1)(d) of Delegated Regulation 2015/63, namely ‘Additional risk indicators to be determined by the resolution authority’, the main principles regarding the application of that risk pillar were specified by the Commission itself in Article 6(5) to (8) of that delegated regulation. Similarly, the Commission determined the rules governing the relative weight applied to the risk indicators within that risk pillar in Article 7(4) of the Delegated Regulation.
160    It follows that Delegated Regulation 2015/63 did not confer on the SRB the power to adopt acts of general application within the meaning of Article 290(1) TFEU.
161    In the light of the foregoing, this plea of illegality must be dismissed and, therefore, so must the first plea in so far as it is based on pleas of illegality.
2.      The second plea, based on a plea of illegality in respect of Regulation No 806/2014, Directive 2014/59 and Delegated Regulation 2015/63, on the ground that they infringe Article 41(2)(c) and Article 47 of the Charter
162    By the second plea, the applicant claims that Delegated Regulation 2015/63 does not allow the SRB to state adequate reasons for its decisions and, therefore, it pleads that Regulation No 806/2014, Directive 2014/59 and delegated regulation are unlawful because they infringe Article 41(2)(c) of the Charter and the right to effective judicial protection as enshrined in Article 47 of the Charter.
…
(b)    Substance
170    The second plea is divided, in essence, into two parts.
(1)    The first part, concerning infringement of Article 41(2)(c) of the Charter
171    The applicant claims that Delegated Regulation 2015/63 does not allow the SRB to state adequate reasons for its decisions and, therefore, it pleads that that delegated regulation is unlawful because it infringes Article 41(2)(c) of the Charter. Specifically, the method of calculating the ex ante contributions introduced by that delegated regulation entails undertaking a comparative analysis of the different institutions required to pay those contributions, and therefore the applicant cannot verify the accuracy of the calculation of its ex ante contribution without having access to the data of the other institutions; such access is, however, denied to it.
172    Furthermore, the right to a reasoned decision is deprived of its substance by reliance on the protection of the business secrets of the other institutions. By providing aggregate data, the SRB failed to strike an appropriate balance between the applicant’s fundamental rights and the protection of the other institutions’ business secrets.
173    Finally, if the Court were to consider that Directive 2014/59 and Regulation No 806/2014 lay down the method of calculation defined by Delegated Regulation 2015/63, that directive and that regulation also infringe, to that extent, Article 41(2)(c) of the Charter.
174    The SRB and the Commission dispute that line of argument.
175    As a preliminary point, it must be recalled that Articles 4 to 9 of Delegated Regulation set out, as is clear from paragraphs 82 to 86 above, the rules which the SRB is required to apply in order to determine the basic annual contribution and to adjust that contribution in proportion to the institutions’ risk profile. Those rules are then implemented, in more concrete terms, in Annex I to that delegated regulation.
176    In accordance with ‘Step 2’ in Annex I to Delegated Regulation 2015/63, it is for the SRB to determine, as a first stage, a number of bins with a view to comparing the institutions in the light of the various risk indicators and sub-indicators. As a second stage, the SRB is to assign, in principle, the same number of institutions to each bin, starting by assigning institutions with the lowest values of the raw indicator to the first bin. As a third stage, the SRB is to assign all of the institutions in a particular bin the same score, called the ‘discretized indicator’, which it must take into account for the remainder of the calculation of their adjusting multiplier.
177    The second paragraph of Article 296 TFEU provides that legal acts are to state the reasons on which they are based. Similarly, the right to good administration enshrined in Article 41 of the Charter provides that the institutions, bodies, offices and agencies of the European Union are to give reasons for their decisions.
178    The statement of the reasons for a decision of an EU institution, body, office or agency is particularly important in so far as it allows persons concerned to decide in full knowledge of the circumstances whether it is worthwhile to bring an action against the decision and the court with jurisdiction to review it, and it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective (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, paragraph 103 and the case-law cited).
179    Such a statement of reasons must be adapted to the nature of the act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him to understand the scope of the act concerning him (see, to that effect, 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 104 and the case-law cited).
180    In order to examine whether that statement of reasons is sufficient in the case of a decision determining ex ante contributions, it must be recalled, first, that it cannot be inferred from the case-law of the Court of Justice that the statement of reasons for any decision of an EU institution, body, office or agency imposing the payment of a sum of money on a private operator must necessarily include all the evidence enabling the addressee to verify the accuracy of the calculation of the amount of that sum of money (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, paragraph 105 and the case-law cited).
181    Second, EU institutions, bodies, offices and agencies are, in principle, required, in accordance with the principle of the protection of business secrets, which is a general principle of EU law, to which concrete expression is given inter alia in Article 339 TFEU, not to disclose to the competitors of a private operator confidential information which that operator has provided (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, paragraph 109 and the case-law cited).
182    Third, to take the view that the statement of reasons for the SRB’s decision determining the ex ante contributions must necessarily enable the institutions to verify the accuracy of the calculation of their ex ante contribution would necessarily mean precluding the EU legislature from establishing a method of calculating that contribution which incorporated data the confidentiality of which is protected by EU law and, therefore, reducing unduly the broad discretion which that legislature must have for that purpose by preventing it, inter alia, from opting for a method capable of ensuring the dynamic adjustment of the financing of the SRF according to developments in the financial sector, by taking into account, in particular, the relative financial situation of each institution authorised in one of the Member States participating in the SRF (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, paragraph 118).
183    Fourth, although it follows from the foregoing that the SRB’s duty to state reasons must be weighed, on the basis of the logic of the system of financing the SRF and of the method of calculation laid down by the EU legislature, against the SRB’s obligation to respect the confidentiality of business secrets of the institutions concerned, the fact remains that the obligation to respect business secrets cannot be given so wide an interpretation that the obligation to provide a statement of reasons is thereby deprived of its essence (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, paragraph 120).
184    However, it cannot be held, when weighing the duty to state reasons against the principle of the protection of business secrets, that giving reasons for a decision requiring a private operator to pay a sum of money without providing it with all the information needed to verify the exact calculation of the amount of that sum of money necessarily undermines, in every case, the substance of the obligation to state reasons (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, paragraph 121).
185    As far as concerns the SRB’s decision fixing the ex ante contributions, the duty to state reasons must be regarded as fulfilled where the persons concerned by that decision, while not being sent data which are business secrets, have the method of calculation used by the SRB and sufficient information to understand, in essence, how their individual situation was taken into account, for the purposes of calculating their ex ante contribution, relative to the situation of all the other institutions concerned (see, to that effect, 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 122).
186    In such a case, the persons concerned are in a position to verify whether their ex ante contribution was fixed arbitrarily, in disregard of the reality of their economic situation or through the use of data relating to the rest of the financial sector which are not plausible. Those persons can therefore understand the reasons for the decision calculating their ex ante contribution and assess whether it is worthwhile to bring an action against that decision, so that it would be excessive to require the SRB to disclose each of the figures on which the calculation of the contribution of each institution concerned is based (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 123).
187    It follows from the foregoing that the SRB is not, inter alia, required to provide an institution with data enabling it to verify fully the accuracy of the value of the adjusting multiplier, since that verification would require data which are business secrets relating to the economic situation of each of the other institutions concerned (see, to that effect, 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 135).
188    In that context, it must be observed that Delegated Regulation 2015/63 does not prevent the SRB from disclosing, in collective and anonymised form, sufficient information to enable an institution to understand how its individual situation was taken into account in the calculation of its ex ante contribution relative to the situation of all of the other institutions concerned (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 139).
189    Specifically, Delegated Regulation 2015/63 allows the SRB to disclose, without infringing its obligation to respect business secrets, the limit values of each bin and the related risk indicators, in order to enable the institution concerned to satisfy itself, inter alia, that the profile attributed to it during the discretisation of the indicators, as defined in Annex I to that delegated regulation, in fact corresponds to its economic situation, that that discretisation was calculated consistently with the methodology set out in the delegated regulation on the basis of plausible data and that all the risk factors that must be taken into account pursuant to Regulation No 806/2014 and to Delegated Regulation 2015/63 were indeed taken into account (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 137).
190    It follows from the foregoing that Delegated Regulation 2015/63 does not prevent the SRB from complying with its duty to state reasons, by enabling it to provide the institutions concerned with sufficient information to understand the reasons justifying the decisions fixing the ex ante contributions (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 141).
191    The same is true of Directive 2014/59 and Regulation No 806/2014, which set out the principles for the calculation of the ex ante contributions. With regard to that directive, the principles laid down therein were subsequently implemented by Delegated Regulation 2015/63, which was adopted pursuant to Article 103(7) of the Directive. The rules under that delegated regulation were, ultimately, made applicable, by Article 70(6) of Regulation No 806/2014, to the calculation of the ex ante contributions collected on the basis of that regulation.
192    The abovementioned conclusions are not called into question by the applicant’s arguments.
193    Firstly, as regards the applicant’s argument that the Commission could have established a method of calculation which does not make the ex ante contributions of each institution conditional upon those payable by all of the other institutions, it must be observed that such interdependence between the ex ante contributions stems from a legislative choice expressed in Articles 102 and 103 of Directive 2014/59 and Articles 69 and 70 of Regulation No 806/2014.
194    Since the EU legislature legitimately chose such a method (see, to that effect, 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 116), it was not for the Commission to amend that method by a delegated act.
195    Second, the applicant cannot contest the legality of Delegated Regulation 2015/63 by relying on the practice of other financial authorities, in particular that of the European Banking Authority (EBA), which demonstrates that an alternative system of giving reasons for decisions setting ex ante contributions is possible.
196    As established in paragraphs 107 to 113 above, the Commission enjoys broad discretion in specifying, by Delegated Regulation 2015/63, the rules concerning the adjustment of the ex ante contributions in proportion to the institutions’ risk profile, and therefore it is not for the Court to determine whether the approach adopted by the Commission was the only one or the best one possible, but whether it was manifestly inappropriate (see, by analogy, judgment of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 83). Therefore, the mere fact that there are alternative approaches does not mean that that delegated regulation is unlawful.
197    Third, the applicant’s argument that the business secrets of the institutions should enjoy weaker protection on account of the passage of time must be dismissed.
198    It is true that, according to the case-law of the Court of Justice, where information that could constitute business secrets at a certain moment in time is at least five years old, that information must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties (see, to that effect and by analogy, judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 54 and the case-law cited).
199    Nevertheless, the data used to calculate the ex ante contributions for a particular contribution period are less than five years old. Pursuant to Article 4(1) and Article 14(1) to (4) of Delegated Regulation 2015/63, the SRB must take account of the data from the institutions which are available on 31 December of the year preceding the contribution period.
200    In the light of the foregoing, the first part of the second plea must be dismissed.
…
3.      The sixth plea, in so far as it is based on the illegality of Delegated Regulation 2015/63
219    In the context of the sixth plea, the applicant has put forward, in essence, four complaints. By the first two complaints, the applicant raises pleas of illegality against Delegated Regulation 2015/63. By the other two complaints, it contests the lawfulness of the contested decision itself.
220    It is necessary first of all to examine the pleas of illegality, since the complaints concerning the lawfulness of the contested decision will be assessed in paragraphs 403 to 420 below.
(a)    The complaint concerning an incompatibility between Delegated Regulation 2015/63 and Article 103(2) and (7) of Directive 2014/59
221    The applicant submits, in essence, that Article 103(7) of Directive 2014/59 requires the Commission, when it adopts delegated acts to implement that provision, to exclude those liabilities which are not exposed to risk, such as its fiduciary liabilities, from the calculation of the ex ante contributions. Since Delegated Regulation 2015/63 does not provide for any such exclusion, it infringes Article 103(7) of that directive.
222    The SRB and the Commission dispute that line of argument.
223    As set out in paragraphs 116 to 118 above, aside from own funds and covered deposits, all of the institutions’ liabilities are to be taken into account, in principle, for the purpose of calculating the ex ante contributions, in accordance with Article 103(2) of Directive 2014/59 and Article 70(2) of Regulation No 806/2014.
224    In addition, nothing in Article 103(7) of Directive 2014/59 requires the Commission to exclude certain allegedly risk-free liabilities from the calculation of the ex ante contributions. First, as set out in paragraphs 122 and 123 above, the ‘risk exposure of the institution’, as laid down in point (a) of that provision, is just one of a number of elements to be taken into account by the Commission when it adopts delegated acts to implement that provision. Second, it does not follow from Article 103(7) of Directive 2014/59 that the Commission should attach greater significance to one or more of those elements.
225    In those circumstances, the applicant has failed to establish that Delegated Regulation 2015/63 is incompatible with Article 103(7) of Directive 2014/59.
226    This complaint must therefore be dismissed.
(b)    The complaint concerning the incompatibility of Delegated Regulation 2015/63 with Article 114 TFEU, in that the Commission should have taken into account the differing national arrangements for implementing Directive 86/635
227    The applicant submits that Delegated Regulation 2015/63 infringes Article 114 TFEU since it does not exclude the funds which an institution administers in its own name, but on behalf of third parties, from the liabilities used for the purpose of calculating the ex ante contributions, and that therefore it fails to take into account the differing national arrangements for implementing the third sentence of Article 10(1) of Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ 1986 L 372, p. 1).
228    The SRB and the Commission dispute that line of argument.
229    In accordance with point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014 and Article 103(2) of Directive 2014/59, the SRB calculates a basic annual contribution for each institution. That contribution is pro rata to the amount of the net liabilities of the institution concerned, with respect to the aggregate net liabilities of all of the institutions authorised in the territories of the participating Member States – as regards the part of that contribution calculated on the union base – and of all the institutions authorised in the territory of the Member State in which the institution in question has its head office – for the part of the contribution calculated on the national base.
230    As regards the determination of the liabilities to be taken into account for the purpose of that calculation, it must be observed that Article 3(1)(11) of Delegated Regulation 2015/63 defines ‘total liabilities’ as ‘total liabilities as defined in Section
3 of [Directive 86/635], or as defined in accordance with the International Financial Reporting Standards referred to in Regulation (EC) No 1606/2002 of the European Parliament and of the Council [of 19 July 2002 on the application of international accounting standards (OJ 2002 L 243, p. 1)]’.
231    Furthermore, under Article 10(1) of Directive 86/635, which is part of Section
3 of that directive, funds which an institution administers in its own name but on behalf of third parties must be shown, as a general rule, in the balance sheet of that institution if it acquires legal title to the assets concerned.
232    That being said, the third sentence of Article 10(1) of Directive 86/635 provides that the Member States may permit the institutions concerned to disclose such funds off the balance sheet provided there are special rules whereby those funds can be excluded from the assets available for distribution in the event of the winding-up of the institution.
233    In that regard, the parties have stated that, under the provisions adopted by the Federal Republic of Germany to comply with Article 10 of Directive 86/635, the liabilities relating to the applicant’s fiduciary activities had to be shown in its balance sheet.
234    The parties also pointed out, by way of example, that the Republic of Austria had availed itself of the option provided in the third sentence of Article 10(1) of Directive 86/635 of permitting institutions to disclose off the balance sheet the funds which they administer in their name but on behalf of third parties.
235    It follows, according to the applicant, that, if an institution has its head office in a Member State such as the Republic of Austria rather than the Federal Republic of Germany, it can disclose the liabilities relating to such fiduciary activities off the balance sheet, and therefore those liabilities are not taken into account to calculate its basic annual contribution.
236    In that context, the applicant submits that the Commission, by having failed to take into account in Delegated Regulation 2015/63 that difference between the accounting rules of the different Member States as regards fiduciary activities, created distortions of competition contrary to Article 114 TFEU.
237    In addition, in so far as the plea of illegality raised by the applicant is based on Article 114 TFEU, it must be observed that that provision creates a legal basis for the Parliament and the Council to adopt legislative acts which have as their object the abolition of barriers to trade arising from differences between the provisions laid down by law, regulation or administrative action in Member States (see, to that effect, judgment of 8 September 2021, Brunswick Bowling Products v Commission, T‑152/19, EU:T:2021:539, paragraph 37 (not published)).
238    However, Article 114 TFEU does not authorise the Commission, when it adopts delegated acts pursuant to Article 290 TFEU, to go beyond the delegation conferred by the EU legislature on the basis of the latter provision. Accordingly, it is not for the Commission to address differing national arrangements for implementing EU law, unless it is granted authorisation to that end by a legislative act.
239    Here, neither Directive 2014/59 nor Regulation No 806/2014 authorised the Commission to harmonise the national accounting rules concerning the funds which an institution administers in its own name but on behalf of third parties.
240    In those circumstances, the applicant cannot claim that the Commission infringed Article 114 TFEU by having allegedly created distortions of competition contrary to that provision by virtue of the adoption of Delegated Regulation 2015/63.
241    It follows that this complaint must be dismissed.
B.      The pleas in law concerning the lawfulness of the contested decision
1.      The reasons stated for the annual target level
242    As a preliminary point, it must be recalled that an absence of or an inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited).
243    By a measure of organisation of procedure and at the hearing, the Court put questions to the parties ex officio concerning any failures to state reasons vitiating the contested decision as regards the determination of the annual target level.
244    In order to examine whether the contested decision is vitiated by such a failure, it must be recalled that, under Article 69(1) of Regulation No 806/2014, by the end of the initial eight-year period from 1 January 2016 (‘the initial period’), the available financial means in the SRF must reach the final target level, which corresponds to at least 1% of the amount of covered deposits of all institutions authorised in all of the participating Member States.
245    Under Article 69(2) of Regulation No 806/2014, during the initial period, the ex ante contributions must be spread out in time as evenly as possible until the final target level mentioned in paragraph 244 above is reached, but with due account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.
246    Article 70(2) of Regulation No 806/2014 states that, each year, the contributions due by all of the institutions authorised in the territories of all of the participating Member States are not to exceed 12.5% of the final target level.
247    In relation to the method of calculation of the ex ante contributions, Article 4(2) of Delegated Regulation 2015/63 provides that the SRB is to determine their amount on the basis of the annual target level, taking into account the final target level, and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, of all of the institutions authorised in the territories of all of the participating Member States.
248    Similarly, under Article 4 of Implementing Regulation 2015/81, the SRB is to calculate the ex ante contribution for each institution on the basis of the annual target level, which must be established having regard to the final target level and in accordance with the methodology set out in Delegated Regulation 2015/63.
249    In the present case, as is apparent from recital 48 of the contested decision, the SRB set the amount of the annual target level at EUR 11 287 677 212.56 for the 2021 contribution period.
250    In recitals 36 and 37 of the contested decision, the SRB explained, in essence, that the annual target level was to be determined on the basis of an analysis of the evolution of covered deposits in previous years, any relevant development in the economic situation, and an analysis of the indicators related to the phase of the business cycle and the impact that pro-cyclical contributions might have on the financial position of the institutions. Thereafter, the SRB deemed it appropriate to determine a coefficient based on that analysis and on the financial means available in the SRF (‘the coefficient’). The SRB applied that coefficient to one eighth of the average amount of covered deposits in 2020, in order to obtain the annual target level.
251    The SRB set out the approach followed to determine the coefficient in recitals 38 to 47 of the contested decision.
252    In recital 38 of the contested decision, the SRB found there to be a constant growth trend in covered deposits for all institutions in the participating Member States. Specifically, the average amount of those deposits, calculated quarterly, amounted to EUR 6.689 trillion in 2020.
253    In recitals 40 and 41 of the contested decision, the SRB presented the forecasted evolution of covered deposits for the three remaining years of the initial period, namely from 2021 to 2023. It estimated that the annual growth rates of covered deposits until the end of the initial period would range between 4% and 7%.
254    In recitals 42 to 45 of the contested decision, the SRB presented an assessment of the phase of the business cycle and of the potential pro-cyclical impact the ex ante contributions might have on the financial position of the institutions. To that end, it stated that it had taken into account a number of indicators, such as the Commission’s GDP growth forecast and the ECB’s projections in that regard or the private-sector credit flow as a percentage of GDP.
255    In recital 46 of the contested decision, the SRB concluded that, while it was reasonable to expect a further growth of covered deposits in the banking union, the pace of that growth would be lower than in 2020. In that regard, the SRB stated, in recital 47 of the contested decision, that it had adopted a ‘conservative approach’ as far as concerned the growth rates of covered deposits in the coming years until 2023.
256    In the light of those considerations, in recital 48 of the contested decision, the SRB set the value of the coefficient at 1.35%. It then calculated the amount of the annual target level by multiplying the average amount of the covered deposits in 2020 by that coefficient and dividing the result of that calculation by eight, in accordance with the following mathematical formula contained in recital 48 of that decision:
‘Target0 [amount of the annual target level] = Total covered deposits2020 * 0.0135 * ⅛ = EUR 11 287 677 212.56’.
257    It is apparent, in essence, from the explanations provided by the SRB at the hearing that it determined the annual target level for the 2021 contribution period as follows.
258    First, on the basis of a prospective analysis, the SRB determined the amount of the covered deposits of all of the institutions authorised in the territories of all of the participating Member States, as forecasted for the end of the initial period, at approximately EUR 7.5 trillion. To arrive at that amount, the SRB took into account the average amount of covered deposits in 2020, that is to say, EUR 6.689 trillion, an annual growth rate of covered deposits of 4% and the number of contribution periods remaining until the end of the initial period, namely three.
259    Second, in accordance with Article 69(1) of Regulation No 806/2014, the SRB calculated 1% of those EUR 7.5 trillion to obtain the estimated amount of the final target value to be reached on 31 December 2023, namely approximately EUR 75 billion.
260    Third, the SRB deducted from the latter amount the financial means already available in the SRF in 2021, that is to say approximately EUR 42 billion, to obtain the amount still to be collected over the remaining contribution periods before the end of the initial period, namely from 2021 to 2023. That amount stood at approximately EUR 33 billion.
261    Fourth, the SRB divided the latter amount by three to spread it evenly over those three remaining contribution periods. The annual target level for the 2021 contribution period was thus set at the amount stated in paragraph 249 above, that is to say, approximately EUR 11.287 billion.
262    The SRB also stated at the hearing that it had made public the data which had formed the basis for the method described in paragraphs 258 to 261 above and which allowed the applicant to understand the method by which the annual target level had been determined. In particular, it explained that, in May 2021, that is to say, after the adoption of the contested decision but before the present action was brought, it had published on its website a fact sheet titled ‘Fact Sheet 2021’ (‘the fact sheet’), which stated the estimated amount of the final target level. Similarly, the SRB asserted that the amount of the available financial means in the SRF could also be found on its website and via other public sources well before the contested decision was adopted.
263    In order to examine whether the SRB complied with its duty to state reasons as regards the determination of the annual target level, it must be recalled first of all that an absence of or an inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited). Accordingly, the Court may, or even must, also take into account failures to state reasons other than those upon which the applicant relies, in particular where those failures come to light in the course of the procedure.
264    Such a statement of reasons must be adapted to the nature of the act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him to understand the scope of the act concerning him (see, to that effect, 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 104 and the case-law cited).
265    Furthermore, that statement of reasons must, inter alia, not contain contradictions, so that the addressees are able to know the real reasons for that decision, with a view to defending their rights before the court with jurisdiction, and so that the court can exercise its power of review (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169 and the case-law cited; of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 20 and 45 to 47; and of 16 December 2015, Greece v Commission, T‑241/13, EU:T:2015:982, paragraph 56).
266    Similarly, where the author of the contested decision provides certain explanations concerning the reasons for that decision in the course of the procedure before the Courts of the European Union, those explanations must be consistent with the considerations set out in that decision (see, to that effect, judgments of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 45 to 47, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraphs 54 and 55).
267    If the considerations set out in the contested decision are not consistent with such explanations provided in the course of the judicial proceedings, the statement of reasons for the decision concerned does not perform the functions identified in paragraphs 178 and 179 above. In particular, such inconsistency prevents the persons concerned from knowing the real reasons for the contested decision, before an action is brought, and from preparing their defence in that regard, and also prevents the Courts of the European Union from identifying the reasons which served as the actual legal basis for that decision and from examining the compatibility of those reasons with the applicable rules.
268    Finally, it must be recalled that, when the SRB adopts a decision setting the ex ante contributions, it must inform the institutions concerned of the method of calculation of those contributions (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, paragraph 122).
269    The same must apply to the method of determining the annual target level, as that amount is of critical importance in the scheme of such a decision. As is clear from Article 4 of Implementing Regulation 2015/81, the method of calculation of the ex ante contributions consists in apportioning that amount between all of the institutions concerned, with the result that an increase or a reduction in the amount means a corresponding increase or reduction in the ex ante contribution of each of those institutions.
270    It follows from the foregoing that, where the SRB is required to provide the institutions, by means of the contested decision, with explanations concerning the method of determining the annual target level, those explanations must be consistent with the explanations provided by the SRB during the judicial proceedings relating to the methodology actually applied.
271    That is not however the case here.
272    It must be observed, first of all, that recital 48 of the contested decision set out a mathematical formula which was presented as forming the basis for the determination of the annual target level. However, it appears that that formula does not incorporate the components of the methodology actually applied by the SRB, as explained at the hearing. As is clear from paragraphs 258 to 261 above, the SRB obtained the amount of the annual target level, using that methodology, by deducting from the final target level the available financial means in the SRF, with a view to calculating the amount still to be collected until the end of the initial period and dividing the latter result by three. However, those two steps of the calculation are not expressed in the mathematical formula.
273    Furthermore, that finding cannot be called into question by the SRB’s assertion that, in May 2021, it published the fact sheet, which contained a range indicating the potential amounts of the final target level, and that it made public, on its website, the amount of the available financial means in the SRF. Regardless of whether the applicant was actually aware of those amounts, they were incapable, on their own, of enabling it to understand that the two operations referred to in paragraph 272 above had actually been applied by the SRB, bearing in mind, moreover, that the mathematical formula provided for in recital 48 of the contested decision did not even mention them.
274    Similar inconsistencies also affect the way in which the coefficient of 1.35% was determined, despite the fact that it plays a crucial role in the mathematical formula mentioned in paragraph 256 above. That coefficient could be understood as meaning that it is based, amongst other parameters, on the forecasted growth in covered deposits over the remaining years of the initial period. However, that is inconsistent with the explanations provided by the SRB at the hearing, from which it follows that that coefficient was determined so as to be able to justify the result of the calculation of the amount of the annual target level, that is to say, after the SRB calculated that amount by following the four steps set out in paragraphs 258 to 261 above and, in particular, by the division by three of the amount obtained from deducting the available financial means in the SRF from the final target level. No reference to those steps is made in the contested decision.
275    In addition, it must be recalled that, according to the fact sheet, the amount of the estimated final target level was in the range of EUR 70 billion to EUR 75 billion. However, that range appears to be inconsistent with the range of the growth rate of covered deposits of between 4% and 7% indicated in recital 41 of the contested decision. The SRB stated at the hearing that, for the purposes of determining the annual target level, it had taken into account a growth rate of covered deposits of 4% – the lowest rate in the second range – and that it had thus arrived at an estimated final target level of EUR 75 billion – the highest value in the first range. There thus appears to be some inconsistency between those two ranges. On the one hand, the range relating to the rate of evolution in covered deposits also includes values higher than the rate of 4%, the application of which would have resulted in an estimated amount of the final target level greater than those included within the range for that target level. On the other hand, it is impossible for the applicant to understand why the SRB included within the range related to that target level amounts lower than EUR 75 billion. To arrive at such amounts, a rate of below 4% would have to have been applied, but no such rate is included in the range relating to the growth rate of covered deposits. In those circumstances, the applicant was unable to determine how the SRB had used the range relating to the rate of evolution of such deposits to arrive at the calculation of the estimated final target level.
276    It follows that, as far as concerns the determination of the annual target level, the methodology actually applied by the SRB, as explained at the hearing, does not correspond to that described in the contested decision, and therefore the real reasons in the light of which that target level was set could not be identified on the basis of the contested decision either by the institutions or by the Court.
277    In the light of the foregoing, the contested decision must be found to be vitiated by defects in the statement of reasons as regards the determination of the annual target level.
278    In view of the legal and economic implications of the present case, it is however in the interests of the proper administration of justice for the other pleas in law raised by the applicant to be examined.
2.      The fourth plea, alleging infringement of essential procedural requirements and of Article 5(1) of Implementing Regulation 2015/81
279    The fourth plea in law is divided into four parts which, in turn, are divided into a number of complaints.
(a)    The first part, alleging a failure to authenticate the contested decision
(1)    The first complaint, concerning infringement of Article 5(1) of Implementing Regulation 2015/81
280    The applicant submits that the SRB infringed Article 5(1) of Implementing Regulation 2015/81, which requires the SRB to communicate to the NRAs ‘its decisions on calculation of annual contributions’. The SRB did not comply with that requirement because it sent the BaFin only a draft of such a decision and not the final decision. This is apparent from the fact that the contested decision, as notified by the BaFin, was received by the applicant only in an unsigned version, that is to say, without a handwritten signature or reference to an electronic signature, and had not been assigned a number under the documentation system called the ‘Advance Records System’ (‘the ARES’).
281    The SRB disputes that line of argument.
282    As a preliminary point, it must be clarified that, in the context of this complaint, the applicant pleads infringement only of Article 5(1) of Implementing Regulation 2015/81.
283    However, that provision states merely that the SRB is required to communicate to the NRAs concerned of the participating Member States its decisions on the calculation of the ex ante contributions. It does not require that the SRB communicate to those NRAs a version of that decision which is signed and bears a number corresponding to a documentation system, such as an ARES-issued number. Similarly, nor does it require the SRB to ensure that the NRAs forward such a version to the institutions.
284    It follows that the applicant cannot claim that the SRB infringed Article 5(1) of Implementing Regulation by having communicated to the BaFin a version of the contested decision which was unsigned and did not bear an ARES-issued number.
285    Furthermore and in any event, it must be stated that the file before the Court contains two versions of the contested decision. One is the unsigned version of that decision which, according to the applicant, was notified by the SRB to the BaFin and then to it. The other version of the decision, which the applicant obtained directly from the SRB further to a request to access the file, bears the electronic signature of the Chair of the SRB as well as an ARES-issued number and an exact time and date on its first page.
286    The applicant has not, however, identified any difference between those two versions as far as concerned their substantive content, and therefore it cannot claim that the version notified to the BaFin was not the final version of the contested decision.
287    The first complaint of the first part of the fourth plea must therefore be dismissed.
(2)    The second complaint, concerning the incorrect authentication of the contested decision
288    The applicant submits that the contested decision was not correctly authenticated, a fact which the SRB contests.
289    The applicant raises, in essences, two arguments.
290    In the first place, although the documents which the applicant obtained further to its request for access to the file do bear an electronic signature and an ARES-issued number, those elements do not constitute an authentication of the contested decision.
291    In that regard, it must be recalled that the authentication of an act, which is an essential procedural requirement, is intended to guarantee legal certainty by ensuring that the text adopted by its author becomes fixed, as a result of which, in the event of a dispute, it can be verified that the texts notified correspond precisely to that text (see, to that effect, 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 152 and the case-law cited).
292    In its defence, the SRB explained that the contested decision had been authenticated by means of the ‘EU Sign’ IT tool. Using that tool, the Chair of the SRB affixed an electronic signature, an exact date and time and an ARES-issued number to the document containing that decision.
293    In that connection, it follows from case-law that a method of authentication based on the use of such a system is capable of satisfying the authentication requirements recalled in paragraph 291 above (see, to that effect, 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 157 to 161).
294    The applicant’s first argument must therefore be dismissed.
295    In the second place, the applicant claims that it is apparent from the documents in its possession that the signature of the Chair of the SRB relates only to the body of the contested decision. Accordingly, the applicant still does not have a signed version of Annex I to the contested decision.
296    However, Article 1 of the operative part of the contested decision, as it appears on page
51 of the body of the German-language version of that decision, states that ‘the calculation of the individual ex-ante contributions to the [SRF] for the 2021 contribution period as set out in Annex I is approved’. It is therefore made clear that Annex I to the contested decision is an integral part of that decision. In those circumstances, the SRB is not required to authenticate such an annex separately from the body of the decision.
297    Consequently, the applicant’s second argument must be dismissed and, therefore, the second complaint must be dismissed in its entirety.
(3)    The third complaint, concerning the SRB’s decision-making process
298    The applicant claims that it is ‘not clear’ that the SRB made a decision on the results of the calculations of the ex ante contributions. Article 1 of the contested decision provides that the SRB approves the calculations reproduced in Annex I to that decision. However, a decision adopted with a reference to an annex is insufficient, because it does not constitute a decision concerning the actual calculation of the ex ante contributions. Annex I to the contested decision contains only rounded interim results, to the exclusion of complete values, and is merely an instrument by which the calculation of the contributions is made public to the institutions. The SRB’s decision-making process must be concerned with the ‘substantive decision reproduced in the instruments which ensure that it is made public’. A decision relating solely to the arrangements for its communication is not sufficient if a substantive decision has not been adopted.
299    The SRB disputes that line of argument.
300    In that regard, it follows from Article 1 of the operative part of the contested decision that the Members of the Executive Session of the SRB, which is the SRB’s decision-making body as far as concerns the setting of the ex ante contributions, decided on the individual ex ante contributions of each institution for the 2021 contribution period as set out in Annex I to that decision.
301    Furthermore, as is apparent from Annex A.20 to the application, the extract from Annex I of the contested decision which concerned the applicant, as communicated by the BaFin to the applicant, contains details about the calculation of the latter’s ex ante contribution and the data forming the basis of that calculation.
302    As regards the adequacy of those data for the purpose of providing information to the Members of the Executive Session of the SRB who adopted the contested decision, the applicant merely criticises the SRB for the fact that the numerical data contained in Annex I to that decision were rounded.
303    However, all the numerical data appearing in that annex and including figures after the decimal point are rounded to four decimal places, with the exception of the numerical data concerning the adjusting multiplier, which are round to twelve decimal places.
304    Such a level of detail was sufficient to allow the Members of the Executive Session of the SRB to adopt the contested decision in full knowledge of the facts.
305    In those circumstances, the third complaint of the first part of the fourth plea must be rejected and, therefore, so must that first part in its entirety.
(b)    The second part, alleging an insufficient statement of reasons for the contested decision
306    The applicant submits that the contested decision does not satisfy the requirements related to the statement of reasons, because it is impossible to recalculate in full the ex ante contributions which it has to pay.
307    The SRB disputes that line of argument.
308    In that regard, the Court of Justice has already held that to take the view that the statement of reasons for the SRB’s decision determining the ex ante contributions necessarily had to enable the institutions to verify the accuracy of the calculation of their ex ante contribution would necessarily mean precluding the EU legislature from establishing a method of calculating that contribution which incorporated data the confidentiality of which is protected by EU law and, therefore, reducing unduly the broad discretion which that legislature must have for that purpose by preventing it, inter alia, from opting for a method capable of ensuring the dynamic adjustment of the financing of the SRF according to developments in the financial sector, by taking into account, in particular, the relative financial situation of each institution authorised in one of the Member States participating in the SRF (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 118).
309    It follows that the applicant cannot claim that the SRB breached its duty to state reasons because it is impossible for the ex ante contributions which the applicant has to pay to be recalculated in full.
310    That conclusion is not called into question by the applicant’s argument that the contested decision did not explain the reasons why its adjusting multipliers had increased, even though its balance sheet total and the volume of its derivatives, as at the decisive reference date for the calculation of the 2021 ex ante contributions, had decreased as compared with the previous cycle.
311    The adequacy of the statement of reasons for the contested decision cannot be assessed in the light of the adequacy of a decision by the SRB relating to a different contribution period.
312    In any event, as the SRB stated and as follows from the case-law cited in paragraph 308 above, the scheme of the method of calculating the ex ante contributions means that the result of an institution’s annual risk assessment is dependent upon the level of risk assumed by that institution as compared with the level of risk of the other institutions. The level of risk of those institutions can fall from one year to the next. Accordingly, a decline in the balance sheet total and the volume of the derivatives does not automatically trigger an improvement in an institution’s adjusting multiplier.
313    The second part of the fourth plea must therefore be dismissed.
…
3.      The first plea, concerning the infringement of the provisions of the second subparagraph of Article 70(2) of Regulation No 806/2014, of Article 8(1)(f) of Implementing Regulation 2015/81 and of Article 103(7) of Directive 2014/59
337    The applicant submits that, by making it subject to the obligation to contribute to the SRF, the SRB infringed the second subparagraph of Article 70(2) of Regulation No 806/2014, Article 8(1)(f) of Implementing Regulation 2015/81 and Article 103(7) of Directive 2014/59.
338    Regulation No 806/2014 does indeed state that all institutions holding a banking licence, including the applicant, are subject, in principle, to the obligation to contribute to the SRF. However, the actual content of a rule cannot be established by the wording of that rule alone. First, when interpreting secondary law, account must necessarily be taken of the principles governing the rules of primary law. Second, the actual content of a legal rule can be determined only having regard to its meaning and its purpose as well as to its systemic correlation to other rules.
339    The SRB and the Commission dispute that line of argument.
340    In that regard, it follows from the considerations set out in paragraphs 93 to 97 above that all institutions within the meaning of Article 2(1)(23) of Directive 2014/59, read together with Article 2(1)(2) of that same directive and Article 4(1)(1) of Regulation No 575/2013, are required to pay ex ante contributions calculated on the national base, in accordance with Article 103(2) of Directive 2014/59.
341    The same is true of the ex ante contributions calculated on the union base. In accordance with a joint reading of Article 3(1)(13) of Regulation No 806/2014, Article 3(2) of that same regulation and Article 2(1)(2) of Directive 2014/59, all institutions within the meaning of those provisions are required to pay such contributions, in accordance with Article 70(2) of Regulation No 806/2014.
342    In addition, the applicant does not dispute that it is an institution within the meaning of those provisions.
343    The applicant therefore falls within the scope ratione personae of Directive 2014/59 and Regulation No 806/2014 as an institution required to pay ex ante contributions.
344    That conclusion is not invalidated by the applicant’s arguments.
345    In the first place, taking into account the considerations set out in paragraph 101 above, the applicant cannot claim that it follows from Article 114 TFEU, which is the legal base of both Regulation No 806/2014 and Directive 2014/59, that institutions in the process of being dismantled should not, in principle, be made subject to an ex ante contribution.
346    In the second place, the applicant argues that the first sentence of Article 67(2) of Regulation No 806/2014, read together with Article 14(2)(b) of that regulation, limits the definition of the concept of an ‘institution subject to the payment of ex ante contributions’, since none of the resolution objectives set out in Article 14 of the Regulation can be achieved any longer in the case of an institution which is in the process of being dismantled, such as the applicant. This is true, inter alia, as regards the objective referred to in Article 14(2)(a) of that regulation, namely ensuring the continuity of critical functions, and in relation to the objective set out in Article 14(2)(b) of the Regulation, namely avoiding significant adverse effects on financial stability, in particular by preventing contagion.
347    In that regard, it must be observed that the provisions upon which the applicant relies do not specify the objectives of Regulation No 806/2014 as such, but rather the resolution objectives. Under Article 16(1) of Regulation No 806/2014, the SRB can adopt a resolution measure only where the three conditions laid down in Article 18 of that regulation are met. It follows that any institutions under resolution can constitute a narrower category than that of institutions subject to the ex ante contributions. The resolution objectives are thus not decisive as regards the scope ratione personae of Regulation No 806/2014 as far as concerns the obligation to pay ex ante contributions.
348    In the third place, contrary to what the applicant claims, nor can its exclusion from the scope ratione personae of the obligation to contribute to the SRF be inferred from the factors listed in Article 103(7)(a), (d) and (g) of Directive 2014/59.
349    It follows from the wording of Article 103(7) of Directive 2014/59, as well as from the wording of Article 103(2) of that same directive, that Article 103(7) of the Directive is not intended to define the scope ratione personae of the obligation to pay ex ante contributions. That provision simply lists the factors which the Commission is required to take into account when adopting delegated acts in order to specify the notion of ‘adjusting contributions in proportion to the risk profile of institutions’ as referred to in Article 103(2) of Directive 2014/59.
350    Lastly, the applicant does not put forward any independent or targeted line of argument concerning Article 8(1)(f) of Implementing Regulation 2015/81 which goes beyond the arguments examined above. The complaint based on infringement of that provision must therefore be rejected.
351    In the light of the foregoing, the complaint based on infringement of the provisions of the second subparagraph of Article 70(2) of Regulation No 806/2014, of Article 8(1)(f) of Implementing Regulation 2015/81 and of Article 103(7) of Directive 2014/59 must be dismissed and, therefore, so must the first plea in its entirety.
4.      The third plea, alleging infringement of Articles 20 and 16 of the Charter
352    The third plea is divided, in essence, into two parts.
(a)    The first part, alleging infringement of Article 20 of the Charter
353    The applicant argues that the contested decision infringes the principle of equal treatment and non-discrimination, as enshrined in Article 20 of the Charter, since it is not treated in the same way as institutions which are not in the process of being dismantled. In that regard, it states, first, that it uses its banking licences solely for the purpose of its dismantling and, second, that its risk exposure, the probability of its resolution and its importance to the stability of the financial markets are very reduced, if not non-existent.
354    Unequal treatment cannot be ruled out by the fact that the method of calculating the ex ante contributions results in different ex ante contributions for different institutions. If appropriate account is taken of the applicant’s particular situation, this should lead to its contribution being reduced to zero, which is not possible on account of Article 9(3) of Delegated Regulation 2015/63, which provides that the adjusting multiplier must be set within a range between 0.8 and 1.5.
355    The SRB and the Commission dispute that line of argument.
356    Article 20 of the Charter enshrines the general principle of EU law of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 95).
357    In that regard, it is necessary to examine, first, whether an institution which is in the process of being dismantled, such as the applicant, is in a comparable situation to that of the other institutions subject to the ex ante contributions.
358    According to settled case-law, the comparable nature of different situations is assessed in the light of all the elements that characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the act making the distinction in question. In addition, the principles and objectives of the field to which the act relates must also be taken into consideration (see judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 99 and the case-law cited).
359    As regards the aim pursued by the legislation to which the contested decision relates, it must be recalled that that legislation falls within the field of the SRM, the establishment of which, in accordance with recital 12 of Regulation No 806/2014, seeks to ensure a neutral approach in dealing with failing banks, to increase the stability of the institutions of the participating Member States and to prevent the spill-over of any crises into Member States not participating in that mechanism, with a view to facilitating the functioning of the internal market as a whole.
360    With a view to ensuring the financing of the SRM’s activities, Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63 introduced the ex ante contributions, the specific nature of which consists, as is apparent from recitals 105 to 107 of that directive and from recital 41 of that regulation, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions and in encouraging the institutions to adopt less risky methods of operation (see, to that effect, 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).
361    Having regard to those principles and objectives, the applicant is wrong to claim that institutions which are in the process of being dismantled are, by virtue of that dismantling, in a different situation from that of the other institutions subject to the ex ante contributions.
362    First, it must be observed that, as follows from recital 102 of Regulation No 806/2014, the ex ante contributions are collected from the institutions prior to, and independently of, any operation of resolution.
363    Second, in accordance with Article 67(4) and Article 70 of Regulation No 806/2014 and with Article 103 of Directive 2014/59, the obligation to pay ex ante contributions applies to all institutions holding a banking licence as institutions within the meaning of Article 2 of that regulation together with Article 3(1)(13) thereof and with Article 2(1)(2) of that directive.
364    In the present case, the applicant does not dispute that, during the contribution period concerned, it was an institution operating with a banking licence with the meaning of the provisions referred to in paragraph 363 above, regardless of its dismantling.
365    It follows that the applicant was able to carry on banking activities through which it could have exposed the financial system to a degree of risk.
366    Third, the method of calculating the ex ante contributions, as introduced by Delegated Regulation 2015/63, is capable of reflecting – in a manner comparable to that of the other institutions – the specific elements of the risk profile of institutions which are being dismantled.
367    The method of calculating the ex ante contributions takes account of the institutions’ size by means of the calculation of the basic annual contribution, which is based on a pro rata amount of the net liabilities of the institution concerned, with respect to the net liabilities of all of the institutions authorised in the territories of all of the participating Member States. Thus, an institution’s basic annual contribution is reduced in comparison with that of the other institutions and thus reflects its specific situation if, in the context of dismantling, that institution reduces the amount of its net liabilities. In addition, the various risk pillars and indicators provided for in Article 6 of Delegated Regulation 2015/63 allow account to be taken, in a targeted manner, of various characteristics of the institutions, including institutions which are being dismantled, and therefore a lower ex ante contribution is imposed on such an institution where its risk profile decreases on account of such dismantling.
368    Fourth, contrary to what the applicant claims, institutions which are in the process of being dismantled are not excluded from any benefit afforded by the SRF’s existence.
369    As observed in paragraph 71 above, the mere existence of that fund contributes to the stability of the financial sector, which benefits all the institutions concerned, including those institutions which are being dismantled.
370    In that regard, it must be observed that the possibility not only of initiating the resolution of an institution that is failing or is likely to fail but also of facilitating that resolution is the objective pursued by the establishment of the SRF. In addition, the stability of the financial sector contributes to facilitating such resolution, since it increases the predictability and the effectiveness of that resolution.
371    In those circumstances, the applicant has failed to demonstrate that it was in a different situation from that of the institutions which are not in the process of being dismantled, having regard to the principles and objectives set out in paragraphs 359 and 360 above.
372    That conclusion is not called into question by the applicant’s argument that the ex ante contributions constitute a ‘banking tax’ which disregards ‘the requirement of equal treatment in tax matters laid down in Article 20 of the Charter’.
373    On this point, it must be observed, first, that the applicant fails to explain the content or the scope of the ‘requirement of equal treatment in tax matters laid down in Article 20 of the Charter’. Second, the premiss upon which the applicant bases its argument, namely that the ex ante contributions constitute ‘levies’ or fiscal provisions, is erroneous for the reasons set out in paragraphs 59 to 76 above.
374    In the light of the foregoing, the first part of the third plea must be dismissed.
(b)    The second part, alleging infringement of Article 16 of the Charter
375    The applicant claims that the contested decision infringes the freedom to conduct a business, as enshrined in Article 16 of the Charter, because that decision imposes disadvantages on it which are disproportionate to the objectives which the decision seeks to attain. In particular, the ex ante contributions can never be used for its benefit or for that of institutions in a similar situation, because the conditions governing the use of resolution tools are not met in its circumstances.
376    The SRB and the Commission dispute that line of argument.
377    The protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition (see judgment of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 79 and the case-law cited).
378    However, the freedom to conduct a business does not constitute an absolute prerogative. It may be subject to a broad range of interventions on the part of public authorities which may, in the public interest, limit the exercise of economic activity (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 45 and 46 and the case-law cited, and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraphs 80 and 81 and the case-law cited).
379    That circumstance is reflected, in particular, in the way in which EU acts should be assessed in the light of Article 52(1) of the Charter (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 47, and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 82).
380    In accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 48, and of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 83).
381    In the present case, on the assumption that the obligation imposed on the applicant to pay ex ante contributions constitutes interference in its freedom to conduct a business, it must be observed first of all that that obligation stems, inter alia, from Articles 69 and 70 of Regulation No 806/2014 and from Articles 102 and 103 of Directive 2014/59, and therefore it is provided for by law.
382    Next, the obligation to pay ex ante contributions pursues an objective of general interest. As is apparent from recital 1 of Delegated Regulation 2015/63, resolution financing arrangements should have adequate financial resources to allow for an effective functioning of the resolution mechanism. The SRB may therefore raise ex ante contributions from the institutions concerned in order to finance the implementation of that mechanism, which is intended to reinforce the stability of those institutions in the participating Member States and to prevent the spill-over of any crises into non-participating Member States, as observed in paragraphs 43 to 53 above.
383    In addition, the applicant has not presented to the Court any evidence to support the finding that, in the light of that objective, the obligation to contribute to the SRF constitutes a disproportionate or unacceptable intervention undermining the very substance of its freedom to conduct a business.
384    Finally, as regards the principle of proportionality, the applicant fails to demonstrate, in particular, that there are less restrictive means than the payment of the ex ante contributions to allow the objectives pursued by Regulation No 806/2014 and Directive 2014/59 to be achieved in as effective a manner, such as, in particular, the objective of ensuring that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation (see, to that effect, 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).
385    In those circumstances, the applicant cannot claim that the contested decision infringes Article 16 of the Charter.
386    The second part of the third plea must therefore be dismissed.
387    Similarly, the complaint raised in the context of the third plea, namely that the fact that the SRB bases its decision on Delegated Regulation 2015/63 and that that delegated regulation does not provide for any exemption in relation to the ex ante contributions for institutions such as the applicant cannot remedy the infringement, by the contested decision, of Articles 20 and 16 of the Charter because that delegated regulation also infringes those provisions in that it has the effect of imposing on the applicant an obligation to pay ex ante contributions, must be dismissed.
388    Since such a reference to Delegated Regulation 2015/63 must be understood as meaning that the applicant raises a plea of illegality against that delegated regulation, alleging infringement of Articles 20 and 16 of the Charter, such a plea of illegality must be dismissed on the grounds set out in paragraphs 357 to 363 and 378 to 384 above.
389    Accordingly, the third plea must be dismissed in its entirety.
…
6.      The sixth plea, in so far as it is based on the direct applicability of Article 103(7)(a) of Directive 2014/59 and on an application by analogy of Article 5(1)(f) of Delegated Regulation 2015/63
403    The sixth plea contains two complaints concerning the lawfulness of the contested decision.
(a)    The complaint concerning the direct applicability of Article 103(7)(a) of Directive 2014/59
404    The applicant submits that, by having refused to exclude the EAA OTC derivatives portfolio from the calculation of the ex ante contributions, the SRB infringed Article 103(7) of Directive 2014/59, which lays down the criteria for adjusting the basic annual contributions to the risk profile of the institutions. Fiduciary operations such as the management of that portfolio, which the applicant holds in trust on behalf of the EAA, does not entail any risk exposure for the applicant. Such a lack of risk exposure must be taken into consideration for the purpose of calculating the ex ante contributions pursuant to Article 103(7)(a) of Directive 2014/59. That provision applies to the calculation of those contributions pursuant to Article 70(2)(b) of Regulation No 806/2014.
405    The SRB disputes that line of argument.
406    It is true that the second subparagraph of Article 70(2) of Regulation No 806/2014 provides that the calculation of the ex ante contribution of each institution is based on a contribution which is adjusted in proportion to the risk profile of the institution concerned and founded on the criteria laid down in Article 103(7) of Directive 2014/59.
407    However, that provision does not state that the SRB is required to adjust the ex ante contribution directly in the light of such criteria.
408    In fact, it follows from the actual wording of Article 103(7) of Directive 2014/59, to which the second subparagraph of Article 70(2) of Regulation No 806/2014 refers and which provides for the adoption of a delegated act in order to implement the criteria laid down in Article 103(7) of that directive, that the EU legislature did not intend for the latter criteria to be directly applicable to NRAs such as the SRB.
409    This is a fortiori the case since Article 70(6) of Regulation No 806/2014 provides that the delegated acts specifying the notion of ‘adjusting contributions in proportion to the risk profile of institutions’, acts adopted by the Commission under Article 103(7) of Directive 2014/59, apply to the calculation of the ex ante contributions on the basis of that regulation.
410    It follows from the foregoing that it did not fall to the SRB to adjust the applicant’s ex ante contribution directly in the light of the criteria laid down in Article 103(7) of Directive 2014/59, rather that it was for the SRB to do so on the basis of the more specific criteria which are laid down in Delegated Regulation 2015/63 and which implement that first set of criteria.
411    In addition, Article 5 of Delegated Regulation 2015/63 provides an exhaustive list of the liabilities which the SRB is required to exclude for the purpose of the calculation of the institutions’ basic annual contribution, it being recalled that liabilities held in trust are not mentioned in that provision.
412    Therefore, the applicant cannot submit that the SRB was required, on the basis of Article 103(7)(a) of Directive 2014/59 and regardless of the cases referred to in Article 5 of Delegated Regulation 2015/63, to exclude the liabilities relating to the applicant’s fiduciary activities when calculating the latter’s basic annual contribution because those liabilities do not pose any risk.
413    This complaint of the sixth plea must therefore be dismissed.
(b)    The complaint, relied on in the alternative, concerning the analogy with promotional loans
414    In the alternative, the applicant alleges that the SRB should have applied, by analogy, Article 5(1)(f) of Delegated Regulation 2015/63 to the EAA OTC derivatives portfolio held by the applicant in trust. Just like an intermediary institution in the context of promotional loans, a trustee is, for the purpose of the liquidation of fiduciary liabilities, a mere stepping stone between the original partner to the derivative contract and the trustor.
415    The SRB and the Commission dispute that line of argument.
416    Article 5(1)(f) of Delegated Regulation 2015/63 excludes from the calculation of the ex ante contributions certain liabilities in the case of institutions operating promotional loans.
417    The concept of a ‘promotional loan’ is defined in point 28 of Article 3 of Delegated Regulation 2015/63 as covering loans granted by a promotional ban or through an intermediate bank on a non-competitive, non for profit basis, in order to promote the public policy objectives of central or regional governments in a Member State.
418    However, first, it is apparent from the applicant’s pleadings that it does not operate such loans, and therefore it does not constitute an institution for the purpose of Article 5(1)(f) of Delegated Regulation 2015/63.
419    Second, the SRB cannot apply, by analogy, Article 5(1)(f) of Delegated Regulation 2015/63 to liabilities related to fiduciary activities. That provision does not confer discretion on the SRB to exclude certain liabilities when adjusting the basic annual contributions in proportion to the risk profile of institutions, but rather lists precisely and exhaustively the conditions governing whether a liability can be so excluded (see judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 93).
420    The second complaint of the sixth plea must thus be dismissed and, therefore, so must the sixth plea in its entirety.
7.      The seventh plea, alleging infringement of Article 5(3) and (4) of Delegated Regulation 2015/63, read together with Article 70(6) of Regulation No 806/2014, because the net value of the liabilities related to the derivative contracts was not considered
421    Before examining the seventh plea, it is necessary to recall the content of the relevant provisions of Delegated Regulation 2015/63.
422    Article 5(1) of Delegated Regulation 2015/63, which is part of Section
2 of that delegated regulation, lists six situations in which liabilities are to be excluded from the calculation of the ex ante contributions.
423    Under the first subparagraph of Article 5(3) of Delegated Regulation 2015/63, for the purpose of that section, the yearly average amount, calculated on a quarterly basis, of liabilities referred to in Article 5(1) of that delegated regulation arising from derivative contracts is to be valued in accordance with Articles 429, 429a and 429b of Regulation No 575/2013.
424    The second subparagraph of Article 5(3) of Delegated Regulation 2015/63 states, however, that the value assigned to liabilities arising from derivative contracts may not be less than 75% of the value of the same liabilities resulting from the application of the accounting provisions applicable to the institution concerned for the purposes of financial reporting (‘the accounting value’).
425    Lastly, the first subparagraph of Article 5(4) of Delegated Regulation 2015/63 provides that, for the purpose of Section
2 of that delegated regulation, the total liabilities referred to in Article 5(1) thereof are to exclude the accounting value of liabilities arising from derivative contracts and include the corresponding value determined in accordance with Article 5(3) of that same delegated regulation.
426    The applicant submits that the contested decision infringed Article 5(3) and (4) of Delegated Regulation 2015/63, read together with Article 70(6) of Regulation No 806/2014, because the SRB calculated its ex ante contribution on the basis of a value of its derivative contracts which it refers to as the ‘gross value’ rather than a value of those contracts which it calls the ‘net value’.
427    It follows from its pleadings that, by that term ‘net value’, the applicant means a value of its liabilities which excludes those liabilities which do not pose any risk, whereas the ‘gross value’ includes such liabilities. According to the applicant, the risk-free liabilities include, inter alia, those related to the EAA OTC derivatives portfolio, since it enjoys full and effective protection against the risks arising from such liabilities.
428    That protection is the result of netting arrangement agreed between the applicant and the EAA, under which the latter assumes responsibility for the risks associated with the EAA OTC derivatives portfolio.
429    In that context, determining how the provisions of Regulation No 575/2013 treat various liabilities related to the EAA OTC derivatives portfolio is irrelevant. That regulation pursues a different purpose from that of Directive 2014/59 and Regulation No 806/2014. It is true that Article 5(3) of Delegated Regulation 2015/63 provides that, with regard to the types of liabilities to be excluded from an institution’s liabilities under Article 5(1) thereof, the amount of liabilities arising from derivative contracts must be valued in accordance with Articles 429, 429a and 429b of Regulation No 575/2013. However, the latter provisions govern the calculation of what is commonly referred to as the leverage ratio, which, as is apparent from recitals 91 to 94 of Regulation No 575/2013, is a parameter unrelated to risk deriving from supervisory law.
430    However, the calculation of the ex ante contributions adjusted in accordance with the risk profile of the institutions must, in compliance with the principle of proportionality, take into account, inter alia, the risk exposure of the transactions. It can be inferred from that fact that, for the purpose of including liabilities in the basis of assessment for calculating the ex ante contributions, the liabilities covered by the netting arrangement agreed by the applicant with the EAA cannot be included. In those circumstances, the reference in Article 5(3) of Delegated Regulation 2015/63 to the provisions of Regulation No 575/2013 cannot cover all liabilities arising from derivatives, but only those liabilities posing some risk at the very least.
431    The SRB disputes that line of argument.
432    Under Article 5(4) of Delegated Regulation 2015/63, for the purpose of Section
2 thereof, which includes Article 5 thereof, the total ‘liabilities referred to in paragraph 1’ of Article 5 of the Delegated Regulation is to exclude the accounting value of liabilities arising from derivative contracts and include the corresponding value determined in accordance with paragraph 3 of that article.
433    In accordance with the first subparagraph of Article 5(3) of Delegated Regulation 2015/63, the yearly average amount, calculated on a quarterly basis, of ‘liabilities referred to in paragraph 1’ of Article 5 of that delegated regulation arising from derivative contracts is to be valued in accordance with Articles 429, 429a and 429b of Regulation No 575/2013.
434    It is thus apparent from the actual wording of Article 5(3) and (4) of Delegated Regulation 2015/63 that those provisions apply only to the liabilities referred to in paragraph 1 of that article.
435    However, it follows from paragraph 419 above that the liabilities related to the EAA OTC derivatives portfolio do not fall within the scope of Article 5(1)(f) of Delegated Regulation 2015/63.
436    Furthermore, the applicant does not explain which other situation provided for in Article 5(1) of Delegated Regulation 2015/63 applies to the liabilities related to the EAA OTC derivatives portfolio.
437    It follows that the arguments raised by the applicant in the context of its seventh plea, which are based on an alleged infringement of Article 5(3) and (4) of Delegated Regulation 2015/63, are ineffective and that the seventh plea must therefore be dismissed.
8.      The eighth plea, alleging infringement of Article 6(8)(a) of Delegated Regulation 2015/63, read together with Article 70(6) of Regulation No 806/2014, on account of the classification of the applicant as an institution within the meaning of the latter provision
438    The applicant submits that the contested decision infringes Article 70(6) of Regulation No 806/2014 together with Article 6(8)(a) of Delegated Regulation 2015/63, because that decision classifies the applicant as an institution undergoing restructuring for the purposes of the latter provision, which increases its adjusting multiplier.
439    Since Delegated Regulation 2015/63 was adopted pursuant to Article 103(7) and (8) of Directive 2014/59 and that directive introduced, at EU level, the first unified scheme for the recovery and resolution of banking institutions, any State or equivalent funds, which are mentioned in Article 6(8)(a) of Delegated Regulation 2015/63, refer only to support granted in the context of Directive 2014/59 or with effect from its entry into force. That interpretation is supported by the wording of recitals 41 and 55, Article 2(1)(28) and Article 31(2)(c) of that directive.
440    The support provided to the applicant by the EAA was granted to it, at the time, using public funds in accordance with national legislation and prior to the entry into force of Directive 2014/59, and not using resources from the SRF pursuant to that directive or to Regulation No 806/2014. Accordingly, the SRB should not have applied to it the maximum value for the risk indicator ‘extent of previous extraordinary public financial support’.
441    The SRB disputes that line of argument.
442    Article 6(5)(c) of Delegated Regulation 2015/63 provides that risk pillar IV consists, amongst other risk indicators, of the risk indicator ‘extent of previous extraordinary public financial support’.
443    Pursuant to Article 2(1)(28) of Directive 2014/59, read together with the first paragraph of Article 3 of Delegated Regulation 2015/63, ‘extraordinary public financial support’ means State aid within the meaning of Article 107(1) TFEU, or any other public financial support at supra-national level, which, if it were granted at national level, would constitute State aid, provided in order to preserve or restore the viability, liquidity or solvency of an institution.
444    In the present case, first, it is common ground that the applicant underwent restructuring after receiving such State aid within the meaning of Article 107(1) TFEU.
445    Second, contrary to the applicant’s submissions, the fact that that aid was granted before the entry into force of Directive 2014/59 has no bearing on the fact that that aid falls within the scope of Article 6(5)(c) of Delegated Regulation 2015/63, read together with Article 2(1)(28) of that directive.
446    Neither the wording of Article 2(1)(28) of Directive 2014/59 nor that of Article 6(8)(a) of Delegated Regulation 2015/63 contains any provision which limits the temporal application of the latter provision in the manner alleged by the applicant.
447    That conclusion is confirmed by the purpose of Article 6(8)(a) of Delegated Regulation 2015/63. As the SRB argued in essence, the risk of an institution which has been put under restructuring after receiving extraordinary public financial support experiencing further financial difficulties is not reduced by the simple fact that that support was granted before Directive 2014/59 entered into force.
448    In those circumstances, the SRB was right to take the view that the applicant fell within the scope of Article 6(8)(a) of Delegated Regulation 2015/63 and to apply to it, in accordance with that provision, the maximum value for the risk indicator ‘extent of previous extraordinary public financial support’.
449    That conclusion is not invalidated by the applicant’s argument that Article 6(8)(a) of Delegated Regulation 2015/63 should be interpreted in the light of recital 55 and Article 31(2)(c) of Directive 2014/59, and therefore Article 6(8)(a) of Delegated Regulation 2015/63 concerns only the period following the entry into force of Directive 2014/59.
450    Recital 55 of Directive 2014/59 states that ‘the resolution tools should be applied before any public sector injection of capital or equivalent extraordinary public financial support to an institution’. Under Article 31(2)(c) of that directive, one of the resolution objectives is to ‘protect public funds by minimising reliance on extraordinary public financial support’.
451    However, it is sufficient to observe that recital 55 and Article 31(2)(c) of Directive 2014/59 concern the detailed rules for the potential application of the resolution tools established by Directive 2014/59, and not the calculation of the ex ante contributions. Thus, no conclusion can be drawn from those provisions vis-à-vis the interpretation of Article 6(5)(c) of Delegated Regulation 2015/63.
452    The same conclusion must be reached with regard to the applicant’s arguments based on the extract from recital 41 of Directive 2014/59 which states that ‘an institution should be considered to be failing or likely to fail solely on the basis that extraordinary public financial support was provided before the entry into force of [that directive]’.
453    In that regard, the applicant relies on a partial reading of that recital. As is apparent from the first sentence of the recital (namely, ‘the resolution framework should provide for timely entry into resolution before a financial institution is balance-sheet insolvent and before all equity has been fully wiped out’), that recital concerns the arrangements for triggering a resolution procedure. Accordingly, no conclusion can be drawn from it as regards the interpretation of Article 6(5)(c) of Delegated Regulation 2015/63, read in the light of Article 2(1)(28) of Directive 2014/59, which concerns the calculation of the ex ante contributions.
454    Similarly, the applicant cannot rely on the fact that part of the wording of Article 2(1)(28) of Directive 2014/59 (namely, ‘that is provided in order to preserve or restore the viability, liquidity or solvency of an institution’) is written in the present indicative.
455    As the Courts of the European Union have already found (see, to that effect, judgment of 3 March 2020, X (European arrest warrant – Double criminality), C‑717/18, EU:C:2020:142, paragraph 20), the present indicative is commonly used in EU legislation to express the mandatory nature of a provision. It follows that it is impossible to infer from its use any indication whatsoever as to that provision’s temporal effects.
456    Lastly, the applicant’s argument that the application of Article 6(8)(a) of Delegated Regulation 2015/63 to the support measures prior to the entry into force of Directive 2014/59 would jeopardise restructuring procedures, in disregard of the practical effect of that directive, must be dismissed.
457    In that regard, first, it must be observed that that directive itself, in Article 103(7)(e) thereof, provides that account must be taken, when calculating the ex ante contributions, of the extent to which the institution has previously benefitted from extraordinary public financial support, without specifying that that support must have been granted after the Directive entered into force.
458    Second, as recalled in paragraphs 71 and 370 above, one of the objectives of Directive 2014/59 is to reinforce the stability of the financial markets, which helps institutions such as the applicant to complete their dismantling, whether that process began before or after that directive entered into force.
459    In the light of the foregoing, the eighth plea must be dismissed.
C.      Conclusion
460    Further to the examination ex officio carried out by the Court, the contested decision must be found to be vitiated by defects in the statement of reasons concerning the determination of the annual target level. Since those defects can, on their own, form the basis for the annulment of the contested decision, that decision must be annulled in so far as the applicant is concerned.
…
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 Portigon AG;
2.      Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Portigon AG, 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 that institution’s ex ante contribution to the Single Resolution Fund for the 2021 contribution period;
3.      Orders the SRB to bear its own costs and to pay those incurred by Portigon AG;
4.      Orders the European Parliament, the Council of the European Union and the European Commission to bear their own costs.
Kornezov
De Baere
Petrlík
Kecsmár
Kingston
Delivered in open court in Luxembourg on
29 May 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.