Provisional text
ORDER OF THE GENERAL COURT (Third Chamber, Extended Composition)
11 June 2025 (*)
( Action for annulment – Economic and monetary policy – Banking union – Single Resolution Mechanism for credit institutions and certain investment firms (SRM) – Regulation (EU) No 806/2014 – Directive 2014/59/EU – Joint decision on the determination of minimum requirements for own funds and eligible liabilities – Jurisdiction of the General Court – Lack of direct concern – Inadmissibility )
In Case T‑477/23,
DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main, established in Frankfurt am Main (Germany), represented by H. Berger, M. Weber and D. Schoo, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by H. Ehlers, M. Fernández Rupérez, A. Lapresta Bienz and J. Rius Riu, acting as Agents,
defendant,
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of H. Kanninen, acting as President, P. Škvařilová-Pelzl, I. Nõmm, G. Steinfatt (Rapporteur) and D. Kukovec, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
–        the application lodged at the Registry of the General Court on 31 July 2023,
–        the plea of inadmissibility put forward by the SRB by separate document lodged at the Court Registry on 30 October 2023,
–        the applicant’s observations on the plea of inadmissibility lodged at the Court Registry on 18 December 2023,
–        the applications to intervene of the European Parliament, the Council of the European Union and the European Commission, lodged at the Court Registry on 19 October, 15 November and 15 November 2023 respectively,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main, seeks, primarily, the annulment of Joint Decision RC/JD/2022/22 of 6 April 2023 (‘the contested decision’), concerning the determination of the minimum requirements for own funds and eligible liabilities (‘MREL’) for itself and five subsidiaries, and, in the alternative, a finding that that decision is legally non-existent.
Background to the dispute
2        The applicant is the parent company of the DZ Bank Gruppe group, the financial group of cooperative banks in Germany. It is classified in Germany as a senior bank, with total group assets amounting to EUR 627 billion on 31 December 2022. Within the banking union, the applicant has subsidiaries in Germany and Luxembourg. Its subsidiary Fundamenta Lakáskassza Zrt. is outside the banking union, in Hungary.
3        In 2017, the Single Resolution Board (SRB) established a resolution college for the applicant and its subsidiaries, in accordance with Article 88 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190), as amended (‘Directive 2014/59’), to which belong, inter alia, on the one hand, the SRB as president of that college and as the group-level resolution authority, and, on the other hand, the Magyar Nemzeti Bank (National Bank of Hungary) as resolution authority of the Hungarian subsidiary.
4        On 8 December 2022, the SRB, in its extended executive session, provisionally approved a draft of the contested decision to be examined by the resolution college. On 15 December 2022, the SRB launched the procedure for consulting the applicant on the project. The applicant submitted its observations by letter of 10 January 2023. On 8 February 2023, the draft of the contested decision was examined within that college, which concluded that the draft should not be amended following the consultation procedure. On 24 March 2023, the SRB, as the group-level resolution authority, sent the final version of the draft of the contested decision to the resolution college. On 28 March 2023, a consensus was reached within the college and the final version was then submitted to the respective internal approval processes of the SRB and the National Bank of Hungary.
5        On 5 April 2023, during its extended executive session, the SRB took note of the common decision-making process set out above and, on that basis, approved the consensus reflected in the contested decision.
6        In the same extended executive session, the SRB adopted Decision SRB/EES/2022/215, which determines the MREL for the group entities led by the applicant falling within its jurisdiction, namely for the applicant and its subsidiaries Bausparkasse Schwäbisch Hall AG, DZ HYP AG and Team Bank AG, with their registered offices in Germany, and its subsidiary DZ Privatbank SA, which has its registered office in Luxembourg. Decision SRB/EES/2022/215 instructs the national resolution authorities to implement the aforementioned MREL (Article 4 of that decision) and to ensure their maintenance (Article 6 of that decision).
7        On 6 April 2023, the contested decision was signed by the Chair of the SRB. Below the signature, the document contains a comment to the effect that the representatives of the relevant authorities have given their written agreement to the joint decision on the MREL. Annex I to the contested decision contains a written agreement, dated 6 April 2023 and signed by the Governor of the Hungarian resolution authority, namely the National Bank of Hungary, according to which the latter agrees to the joint decision proposed and transmitted by the SRB on 24 March 2023.
8        On 14 April 2023, the German resolution authority, namely the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority; ‘the BaFin’), was notified of Decision SRB/EES/2022/215 of the SRB of 5 April 2023, which it then implemented by a decision of 26 May 2023 addressed to the applicant.
9        By letter of 17 May 2023, the Luxembourg resolution authority, namely the Commission de surveillance du secteur financier (Financial Sector Supervisory Commission; ‘the CSSF’), informed the subsidiary DZ Privatbank of the implementation of the MREL determined by Decision SRB/EES/2022/215 and notified it of that decision.
10      By email of 22 May 2023, the SRB, as the group-level resolution authority, sent the applicant, as the parent company of the EU group, the contested decision, together with the joint decision on the group resolution plan and a summary of that plan.
11      On 3 July 2023, the applicant brought an appeal against the contested decision before the SRB’s Appeal Panel (‘the Appeal Panel’), pursuant to Article 85(3) 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), as amended (‘Regulation No 806/2014’).
12      On 5 July 2023, the applicant also brought an appeal against Decision SRB/EES/2022/215 before the Appeal Panel, pursuant to the same provisions.
13      The appeals were dismissed by decision of the Appeal Panel of 15 December 2023 in Joined Cases 2/23 and 3/23. That panel held that the applicant’s appeal against the contested decision was admissible, but unfounded, and that the appeal against Decision SRB/EES/2022/215 was inadmissible.
14      On 26 February 2024, the applicant lodged an action with the Registry of the General Court, registered as Case T‑116/24, against the decision of the Appeal Panel.
Forms of order sought
15      The applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, declare that the contested decision is legally non-existent;
–        order the SRB to pay the costs.
16      The SRB contends that the Court should:
–        dismiss the application as inadmissible;
–        in the alternative, stay the proceedings until a decision is given in Case T‑71/22;
–        order the applicant to pay the costs.
Law
17      Under Article 130(1) of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on the question of inadmissibility without going to the substance of the case.
18      In the present case, the Court considers that it has been sufficiently informed by the documents in the file and decides, pursuant to that article, to give judgment without taking further steps in the proceedings.
19      The SRB bases its plea of lack of competence and inadmissibility on four grounds.
20      First, it argues that a ‘joint decision’ does not constitute a legal act attributable to it. It states, in that regard, that the Courts of the European Union have confirmed that the acts of entities other than the institutions, bodies, offices and agencies of the European Union do not fall within the scope of their jurisdiction under Article 263 TFEU, thereby claiming that the General Court lacks jurisdiction to rule on the present dispute.
21      Secondly, a joint decision is merely a preparatory act for another decision. Thirdly, it is not addressed to the applicant and is not of direct and individual concern to it, with the result that the applicant does not have standing to bring proceedings. Fourthly, the SRB considers that the action is inadmissible on the basis of the condition relating to the pre-litigation procedure.
22      The applicant disputes the SRB’s argument and takes the view that the action is admissible.
23      In the first place, as regards the author of the contested decision, that decision was taken by the SRB as the group-level resolution authority. The SRB determined the MREL in the exercise of its power under Article 12(1) of Regulation No 806/2014, in the form of a joint decision.
24      First, the resolution college does not itself adopt legal acts, but merely constitutes the framework within which the resolution authorities can carry out tasks jointly. The Hungarian resolution authority, namely the National Bank of Hungary, merely adopted the contested decision as its own.
25      Secondly, adopting as its own the reasoning followed by the Appeal Panel in its decision of 15 December 2023, the applicant submits that the joint decision constitutes a bundle of individual decisions with the same content and that it is approved by each of the resolution authorities involved. According to the applicant, a distinction must be drawn between the two situations. In the event of disagreement, each of the resolution authorities is to adopt separately, in the exercise of its power, its own decision on the MREL (the situation described in Article 45h(4) and (6) of Directive 2014/59). However, in the case of a joint decision, each of the resolution authorities shall adopt an individual decision corresponding to the joint decision that was previously taken (the situation described in Article 45h(2) and (4) of Directive 2014/59).
26      Thirdly, the fact that the resolution authorities concerned agree on the same decision text does not mean that a joint decision is merely an agreement in the context of internal relations between authorities. An agreement between the members of the resolution college is only a precondition for a joint decision, but cannot be equated with a joint decision.
27      In the second place, first, the contested decision produces binding legal effects in external relations, in that the joint decision of a resolution college constitutes a final decision and not merely an internal preparatory act of the authority and is binding on the institutions concerned. In the context of the contested decision, the SRB already definitively determines the MREL with regard to the applicant in the exercise of its powers under Article 12 of Regulation No 806/2014, since the joint decision is binding on the SRB under Article 45h(7) of Directive 2014/59 as regards the determination of the MREL.
28      The argument that it was necessary to implement the contested decision by a decision of the SRB and the BaFin determining the MREL is irrelevant in so far as, in the present case, the joint decision already contains the final decision, which was binding, without any margin of discretion of its own, on the SRB and the BaFin in their subsequent legal acts.
29      Secondly, the contested decision concerns the applicant, at least directly and individually within the meaning of the fourth paragraph of Article 263 TFEU, in that a joint decision is addressed to the establishments in question and they are directly and individually concerned by that joint decision, irrespective of their capacity as addressees.
30      Thirdly, in accordance with the fourth paragraph of Article 263 TFEU, the applicant has locus standi and the requisite interest in bringing proceedings. The desired annulment of the contested decision as such would be capable of producing legal effects, since it would deprive of any basis the SRB’s decision determining the MREL and, therefore, the BaFin’s decision on the MREL; the BaFin would then be obliged to annul its decision on opposition by the applicant.
31      Furthermore, the applicant was the addressee of the contested decision, since that status of addressee resulted from the SRB’s obligation, expressly laid down in point (a) of the second subparagraph of Article 45h(1) of Directive 2014/59 and in Article 92(1) of Commission Delegated Regulation (EU) 2016/1075 of 23 March 2016 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to regulatory technical standards specifying the content of recovery plans, resolution plans and group resolution plans, the minimum criteria that the competent authority is to assess as regards recovery plans and group recovery plans, the conditions for group financial support, the requirements for independent valuers, the contractual recognition of write-down and conversion powers, the procedures and contents of notification requirements and of notice of suspension and the operational functioning of the resolution colleges (OJ 2016 L 184, p. 1), to communicate joint decisions to the applicant after their adoption.
32      In addition, the applicant disputes the SRB’s argument that it has no interest in obtaining the annulment of the contested decision, in so far as that annulment would not procure any advantage for it, given that, in view of the joint nature of the contested decision, the SRB is in no way in a position, on its own, to replace that act, but is only in a position to reopen the procedure within the resolution college, a procedure in which it cannot impose a certain level of MREL on the other members of that college. In that regard, the applicant submits that the determination of the MREL does not necessarily require a joint decision. If no joint decision is taken, the MREL is determined by separate decisions of the resolution authorities concerned, in accordance with Article 45h(4) to (6) of Directive 2014/59, so that the SRB could then adopt a decision that would take account of any requirements of the Court.
33      In the third place, the applicant disputes the requirement for a preliminary procedure, relying, in essence, on the lack of judicial clarification of that issue. It submits that there would be a direct risk of infringement of its fundamental right to effective judicial protection enshrined in Article 47(1) of the Charter of Fundamental Rights of the European Union if the requirement for a preliminary procedure, in accordance with the fifth paragraph of Article 263 TFEU, read in conjunction with the first subparagraph of Article 85(3) and Article 86(1) of Regulation No 806/2014, were to preclude the admissibility of the present action before the Court.
The nature of the contested decision and the jurisdiction of the Court to rule on the present dispute
34      According to the SRB, both the procedure leading to its adoption and its content show that the contested decision is not a legal act attributable to the SRB. In support of that argument, it submits that the contested decision as a joint decision was not adopted by it alone, but jointly by it and the Hungarian resolution authority, namely the National Bank of Hungary, within the framework of the resolution college. The contested decision thus takes account of the consensus reached by those authorities in order ultimately to ensure the proper implementation of the planned resolution strategy. It is an integrated agreement on the respective MREL levels determined for all members of the group whereby the resolution strategy takes into account and depends on the MREL of the other members.
35      The Court has jurisdiction to hear and determine actions brought under Article 263 TFEU only against acts of the institutions, bodies, offices or agencies of the European Union (order of 6 October 2020, Sharpston v Council and Conference of the Representatives of the Governments of the Member States, T‑550/20, not published, EU:T:2020:475, paragraph 33).
36      Similarly, it is settled case-law that an action for annulment must be available in the case of all measures adopted by the institutions, bodies, offices and agencies of the European Union, irrespective of their nature or form, provided that they are intended to have legal effects (see, to that effect, judgments of 30 June 1993, Parliament v Council and Commission, C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 13; of 13 July 2004, Commission v Council, C‑27/04, EU:C:2004:436, paragraph 44; and of 28 April 2015, Commission v Council, C‑28/12, EU:C:2015:282, paragraph 14).
The legal effects of the joint decision
37      The contested decision, which is entitled ‘Joint Decision’, provides that ‘the [SRB] and [the National Bank of Hungary] … [as] resolution authorities, acting within the resolution college, … have reached [a] joint decision and agreed’ on the MREL that, under Articles 2 to 4 of the contested decision, the applicant and its five subsidiaries must comply with. Those MREL are specified in Sections I to III of the contested decision. In addition, the contested decision bears the signature of the Chair of the SRB, signed on behalf of the SRB, together with the statement ‘the representatives of the relevant resolution authorities have agreed to this joint decision on MREL by means of a written agreement’. The agreement of the Hungarian resolution authority, namely the National Bank of Hungary, bearing the signature of its Governor, is annexed to the contested decision.
38      The contested decision thus concerns the determining of the MREL for the applicant and its five subsidiaries, one of which is situated outside the banking union.
39      The competence to determine the MREL for the group composed of the applicant and its subsidiaries in Germany and Luxembourg lies with the SRB (Article 12(1) of Regulation No 806/2014), which is the resolution authority for that ‘cross-border group’ (see Article 7(2)(b) of Regulation No 806/2014, read in conjunction with Article 3(1)(24) thereof).
40      However, since a ‘cross-border group’ includes only entities in the Member States participating in the banking union (Article 3(1)(24) of Regulation No 806/2014), the SRB is not competent to determine the MREL for the entire group since the applicant’s Hungarian subsidiary is established in a State not participating in the banking union.
41      The resolution authority for the Hungarian subsidiary Fundamanta Lakáskassza is the National Bank of Hungary (recital 11 of the contested decision, read in conjunction with the annex to the contested decision).
42      The applicant’s group as a whole, including the Hungarian subsidiary, constitutes a ‘cross-border group’ within the meaning of Article 2(1)(27) of Directive 2014/59, whose entities are established in more than one Member State.
43      According to the first subparagraph of Article 88(1) of Directive 2014/59, for cross-border groups, group-level resolution authorities are to establish resolution colleges, which provide a framework for setting the MREL imposed on groups at consolidated and subsidiary level (see Article 88(1), second subparagraph, point (i) of Directive 2014/59). In the present case, it is apparent from recital 6 of the contested decision that the SRB established a resolution college for the applicant and its five subsidiaries in 2017, the members of which are, inter alia, the SRB and the National Bank of Hungary, in accordance with Article 88(2)(a) and (b) of Directive 2014/59.
44      Within such a college, the resolution authorities concerned engage in a dialogue on the subject of the proposed MREL applicable at consolidated, parent and each subsidiary level, and discuss the reconciliation of those MREL (Article 89 of Delegated Regulation 2016/1075). The college is chaired by the group-level resolution authority (Article 88(5) of Directive 2014/59).
45      Where a group includes entities established in Member States participating in the banking union as well as in Member States not participating in that union, the SRB is to represent the national resolution authorities of the participating Member States for the purposes of consultation and cooperation with non-participating Member States (Article 32(1) of Regulation No 806/2014 and recital 10 of the contested decision). Thus, the German and Luxembourg resolution authorities participated in the resolution college only as observers (recitals 6 and 9 of the contested decision).
46      In order to establish, within the resolution college, the amounts of MREL applicable at the consolidated level of the resolution group and on an individual basis to the subsidiaries, point (i) of the second subparagraph of Article 88(1) of Directive 2014/59 refers, in particular, to Article 45h of that directive, which provides for two alternative procedures for achieving a coordinated determination of those MREL.
47      The recommended procedure is the preparation of a joint decision in accordance with Article 45h(1) of Directive 2014/59, according to which the group-level resolution authority and the resolution authorities responsible for the subsidiaries of the resolution group are to do everything within their power to reach a joint decision on the amount of the requirement applied at the consolidated resolution group level and on the amount of the requirement applied on an individual basis to each subsidiary. The joint decision is binding on the resolution authorities concerned (Article 45h(7) of Directive 2014/59).
48      In the absence of such a joint decision within four months, the competent authorities for the group-level consolidated MREL, on the one hand, and for the MREL on an individual basis, on the other, are to determine the MREL by taking due account of the views and reservations expressed by the other respective authorities and the resolution entity concerned (Article 45h(3) of Directive 2014/59). Article 45h(4) to (6) lays down special rules for that possibility.
49      Since the SRB and the Hungarian resolution authority, namely the National Bank of Hungary, reached a joint decision, they coordinated with each other with a view to the subsequent determination of the MREL for each of the authorities involved within the scope of its own power. By the contested decision, the SRB and the National Bank of Hungary, as resolution authorities and members of the resolution college, express their agreement with the MREL recorded by the SRB, as president of the college, in Sections I to III of the contested decision, for the applicant and all of its subsidiaries.
50      The contested decision produces legal effects in so far as, in accordance with Article 45h(7) of Directive 2014/59, the resolution authorities ‘concerned’ (see paragraph 78 below) commit to mutually binding obligations in that they undertake to comply with the MREL to be determined when exercising their respective
powers.
51      The SRB, in its capacity as resolution authority empowered to determine the MREL of the resolution entity and subsidiaries established in the Member States participating in the banking union, must adhere to the MREL determined in Sections I and II of the contested decision. The same applies to the Hungarian resolution authority, namely the National Bank of Hungary, which is required to observe the MREL determined in Section III.
52      It follows that, by preparing and signing the contested decision, as set out in paragraphs 3 to 7 above, the SRB participated in the adoption of the contested decision, which produces legal effects.
The ‘hybrid’ nature of the joint decision
53      As regards the SRB’s argument that the contested decision, as a joint decision, was not adopted by it alone, but jointly with the Hungarian resolution authority within the framework of the resolution college, the question arises as to the extent to which the contested decision may be regarded as an act subject to review by the Courts of the European Union.
54      As the SRB rightly pointed out, the contested decision is the result of a consensus and it is clear from recital 7 thereof that it was adopted jointly by the SRB, as the group-level resolution authority, on the one hand, and by the resolution authority of the State not participating in the banking union, on the other.
55      Thus, first, without the SRB’s consent, no joint decision could have been reached. Secondly, according to Article 5 of the contested decision and in accordance with Article 91(3) of Delegated Regulation 2016/1075, the agreement of the Hungarian resolution authority, namely the National Bank of Hungary, is also essential for the adoption of the joint decision.
56      The ‘hybrid’ nature of the contested decision, arising from the fact that it is adopted by the SRB and the National Bank of Hungary, does not mean that it does not emanate from the SRB.
57      The document containing the contested decision acknowledges the fact, both in the introductory part (‘as agreed by the Single Resolution Board … and Magyar Nemzeti Bank’) and by the signature of the Chair of the SRB on behalf of the SRB, that the latter is one of the authors of the joint decision. Furthermore, it is apparent from the first sentence of recital 10 of the contested decision that the SRB acted in its capacity as group-level resolution authority. According to recital 12 of that decision, the joint decision is based on Article 45h of Directive 2014/59, which provides that the group-level resolution authority and the resolution authorities responsible for the subsidiaries are to do everything within their power to reach a joint decision. Thus, by adopting the contested decision jointly with the Hungarian resolution authority, namely the National Bank of Hungary, the SRB acted on the basis of a power conferred on it by EU law. The SRB could only take the contested decision with the resolution authority of the Member State not participating in the banking union because of the decision-making powers conferred on it by the EU legislature.
58      Unlike composite administrative procedures in which national resolution authorities intervene, but where the final decision lies with the SRB, such as for the determination of ordinary contributions to the Single Resolution Fund (SRF) (see Opinion of Advocate General Campos Sánchez-Bordona in Iccrea Banca, C‑414/18, EU:C:2019:574, points 34 and 35), the contested decision constitutes a genuine agreement, adopted in an equitable manner, in the context of coordination between the Hungarian national authority, namely the National Bank of Hungary, and the SRB, which takes place before decisions are taken in accordance with their respective powers.
59      The administrative procedure at issue in the present case differs from those that gave rise to the judgments of 3 December 1992, Oleificio Borelli v Commission (C‑97/91, EU:C:1992:491), and of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023). The cases that gave rise to those judgments form part of a vertical relationship in that the act of the national authority comes first and the decision of the EU administrative authority is taken at the end of the procedure. The question whether the EU authority concerned has a margin of discretion falls precisely within the framework of that vertical relationship.
60      By contrast, the present case arises in the context of a purely horizontal relationship in which two authorities – the Hungarian resolution authority, namely the National Bank of Hungary, and the SRB, vested with their own powers – adopt a ‘joint decision’. Unlike the vertical situation of composite administrative procedures in which national authorities and EU authorities are involved, where the exercise of the final decision-making power is the crucial factor for determining whether the Courts of the European Union or the national courts must conduct a judicial review (see Opinion of Advocate General Campos Sánchez-Bordona in Iccrea Banca, C‑414/18, EU:C:2019:574, point 34), in the present situation, the co-authors of the joint decision, by adopting it, each exercise their respective powers, independently of each other. In any event, when adopting a joint decision such as the contested decision, the SRB enjoys a certain margin of discretion and is not bound by proposals from a national authority.
61      The fact that the contested decision is the result of consensus between the SRB and the Hungarian resolution authority, namely the National Bank of Hungary, cannot call into question the conclusion that it is an act subject to review by the Courts of the European Union, since the determination of the MREL on the basis of the procedure established by Article 45h of Directive 2014/59, the SRB must apply and comply with Article 45 et seq. of that directive.
62      In that regard, the application of those provisions by the SRB is independent of the involvement of the Hungarian resolution authority, which may choose not to accept the joint decision proposed by the SRB.
63      In that context, the lack of agreement on the part of the Hungarian resolution authority, namely the National Bank of Hungary, did not prevent the SRB from determining the MREL, at least as regards their application within the Member States participating in the banking union. In accordance with Article 45h(3) and (4) of Directive 2014/59, in the absence of a joint decision, it is for the SRB to take a decision on the MREL.
64      Thus, even if the involvement of the Hungarian resolution authority is a necessary step in the procedure for the adoption of the contested decision, compliance with the EU rules applicable in the present case, given the scope of the powers exercised by the SRB in that context, cannot be excluded from review by the Courts of the European Union.
65      In those circumstances, the Court has jurisdiction to examine the legality of the contested decision, with the result that the plea of lack of competence must be rejected.
Admissibility of the action
66      It follows from the fourth paragraph of Article 263 TFEU that any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to that person, and against a regulatory act which is of direct concern to that person and does not entail implementing measures.
67      In the first place, as regards its status as an addressee, it is necessary to reject the applicant’s argument that that status is a result of the SRB’s obligation, laid down in point (a) of the second subparagraph of Article 45h(1) of Directive 2014/59 and in Article 92(1) of Delegated Regulation 2016/1075, to communicate the joint decisions after their adoption.
68      According to point (a) of the second subparagraph of Article 45h(1) of Directive 2014/59, the joint decision is ‘provided to … the resolution entity by its resolution authority’. As regards entities of a resolution group that are not a resolution entity, according to point (b) of the second subparagraph of Article 45h(1) of Directive 2014/59, the joint decision is to be provided to the by the resolution authorities of those entities. As regards the parent company of the EU group that is not itself a resolution entity of the same resolution group, point (c) of the second subparagraph of Article 45h(1) of Directive 2014/59 provides that the joint decision is to be provided to it by the resolution authority of the resolution entity.
69      It follows that the second subparagraph of Article 45h(1) of Directive 2014/59 does not provide that the author of the joint decision is to notify it to the entities concerned, but entrusts different resolution authorities, within their respective powers, with ‘providing’ that decision.
70      Thus, in the present case, it was only by email of 22 May 2023 that the SRB, as the group-level resolution authority, in accordance with point (c) of the second subparagraph of Article 45h(1) of Directive 2014/59, communicated the contested decision to the applicant, as the parent company of the EU group, whereas the national resolution authorities were already informed before that date, with the BaFin having been informed on 14 April 2023 and the CSSF having been informed, in any event, before 17 May 2023.
71      In the second place, since the applicant is not the addressee of the contested decision, it must be directly concerned by that decision.
72      In that respect, it is clear from settled case-law that the condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, secondly, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (judgments of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66; of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42; and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 51).
73      The SRB argues, in essence, that the first criterion referred to above is not satisfied, namely the contested decision does not directly affect the applicant’s legal situation.
74      In order to examine the first criterion, namely whether the contested decision can directly affect the applicant’s legal situation, it is necessary to examine the substance of the act in question and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (see judgment of 12 July 2022, Nord Stream 2 v Parliament and Council, C‑348/20 P, EU:C:2022:548, paragraph 63 and the case-law cited).
75      As regards a joint decision relating to a cross-border group (see paragraph 42 above), particular account must be taken of the system established by the EU legislature in order to determine the MREL for each entity of the group within the European Union (see paragraphs 38 to 48 above).
76      In the present case, both the contested decision and Decision SRB/EES/2022/215 determine the MREL for the entities of the group to which the applicant belongs.
77      However, although the contested decision represents the agreement concluded in the context of the European Union as a whole between the SRB and the Hungarian resolution authority, namely the National Bank of Hungary, pursuant to Directive 2014/59, Decision SRB/EES/2022/215, adopted on the basis of Regulation No 806/2014, gives concrete expression to that agreement within the banking union alone.
78      Thus, as regards the contested decision, it has a binding effect, by virtue of Article 45h(7) of Directive 2014/59, only on the resolution authorities ‘concerned’, that is to say those that committed to mutually binding obligations by adopting the joint decision. The present case concerns the SRB and the Hungarian resolution authority, namely the National Bank of Hungary.
79      The adoption of the contested decision therefore does not, in itself, have any legal effect within the banking union other than the obligation that the SRB imposes on itself vis-à-vis the Hungarian resolution authority, namely the National Bank of Hungary, to apply the MREL that it negotiated with that authority.
80      By contrast, as regards Decision SRB/EES/2022/215, according to Article 12(1) of Regulation No 806/2014, the SRB is to determine the MREL that the resolution entities and resolution groups are required to meet at all times. According to Article 12(5) of that regulation, the SRB is to address its determination to the national resolution authorities, which are to implement the instructions of the SRB in accordance with Article 29 of that regulation.
81      In the present case, by adopting Decision SRB/EES/2022/215, which, in its second citation, refers, inter alia, to Articles 12 to 12k and 29 of Regulation No 806/2014, the SRB adopted a decision under the abovementioned articles by which it determined, within the banking union, the MREL for the group to which the applicant belongs.
82      It follows from the foregoing that the contested decision does not directly affect the applicant’s legal situation for the purposes of the case-law cited in paragraph 72 above.
83      That finding is not called into question by the conclusion of the Appeal Panel in its decision in related cases 2/2023 and 3/2023 of 15 December 2023, to which the applicant refers. According to the Appeal Panel, the joint decision affects the interests of the applicant credit institution by bringing about a distinct change in its legal position (paragraph 46 of the decision of the Appeal Panel). The Appeal Panel took the view that the contested decision was the decision which finally determined the MREL (paragraph 48 of the decision of the Appeal Panel).
84      The Appeal Panel based its assessment of the contested decision on the assumption that it is merely a bundle of individual ‘parallel’ decisions of the different resolution authorities with the same content and individually approved by each of the resolution authorities involved. The joint decision is no more than a collection of the decisions of the competent authorities in a single document; those decisions already have effect within the respective jurisdictions of those authorities, irrespective of whether or not they have all given their agreement.
85      However, that assumption ignores the aspect of mutual commitment contained in the joint decision, in accordance with Article 45h(7) of Directive 2014/59.
86      Furthermore, that explanation is invalidated by Article 45h(3) of Directive 2014/59, according to which, in the absence of a joint decision within the prescribed period, it is now for the entity’s resolution authorities to comply with special rules (see paragraph 48 above). It follows that the situation is different depending on whether or not all the authorities have given their agreement. If the authorities concerned – that is to say the authorities defined through their membership of the resolution college, in which the joint decision was drawn up and concluded – do not all agree, there is no joint decision. As regards the Hungarian resolution authority, namely the National Bank of Hungary, that essential condition for an agreement was laid down in Article 5 of the contested decision, according to which it is adopted upon receipt of the agreement of the resolution authority of the Member State not participating in the banking union.
87      Since the contested decision does not directly affect the applicant’s legal situation, the plea of inadmissibility raised by the SRB based on the applicant’s lack of standing to bring proceedings must be upheld.
88      However, the inadmissibility of the action does not follow, as the SRB maintained with its fourth ground of inadmissibility (see paragraph 21 above), from the absence of a prior appeal before the Appeal Panel. The first paragraph of Article 85(3) of Regulation No 806/2014 provides that any natural or legal person, including resolution authorities, may appeal against a decision of the SRB referred to in Article 10(10), Article 11, Article 12(1), Articles 38 to 41, Article 65(3), Article 71 and Article 90(3) which is addressed to that person, or which is of direct and individual concern to that person. However, the joint decision on the MREL is of a special nature. In particular, it is not a decision of the SRB referred to in those articles. Moreover, the contested decision is not addressed to the applicant and does not directly affect its legal situation, with the result that it is not of direct concern to it (see paragraphs 79 to 82 above).
89      It follows that the applicant could not bring an appeal before the Appeal Panel, so it cannot be criticised for having brought the matter directly before the Courts of the European Union, in accordance with Article 263 TFEU.
90      In the light of all the foregoing considerations, the action must be dismissed as inadmissible.
The request for the proceedings to be stayed
91      Since the SRB has been successful in its claims in the main proceedings, there is no longer any need to adjudicate on its request, made in the alternative in its plea of inadmissibility, for the proceedings to be stayed until a decision has been given in BNP Paribas v SRB (T‑71/22), which, moreover, was closed by order of 8 November 2024 (not published, EU:T:2024:834) removing the case from the register.
The application to intervene
92      In accordance with Article 144(3) of the Rules of Procedure, where the defendant has lodged a plea of inadmissibility or of lack of competence as provided for in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. Under Article 142(2) of the Rules of Procedure, the intervention is ancillary to the main proceedings and becomes devoid of purpose, inter alia, when the application is declared inadmissible.
93      Accordingly, there is no longer any need to adjudicate on the applications to intervene lodged by the European Parliament, the Council of the European Union and the European Commission.
Costs
94      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
95      Since the applicant has been unsuccessful, it must bear its own costs and be ordered to pay those incurred by the SRB, in accordance with the form of order sought by the SRB.
96      In accordance with Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene.
97      Therefore, the applicant, the SRB, the Parliament, the Council and the Commission must each bear their own costs relating to the applications to intervene in support of the form of order sought by the SRB.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no longer any need to adjudicate on the applications to intervene of the European Parliament, the Council of the European Union and the European Commission.
3.      DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main, shall bear its own costs and pay those incurred by the Single Resolution Board (SRB), with the exception of those relating to the applications to intervene.
4.      DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main, the SRB, the Parliament, the Council and the Commission shall each bear their own costs relating to the applications to intervene.
Luxembourg, 11 June 2025.
V. Di Bucci
H. Kanninen
Registrar
President
*      Language of the case: German.