Provisional text
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
17 July 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 – Obligation to state reasons – Effective judicial protection – Equal treatment – Principle of proportionality – SRB’s margin of discretion – Plea of illegality – Commission’s margin of discretion – Limitation of the temporal effects of the judgment )
In Case T‑396/21,
Deutsche Bank AG, established in Frankfurt am Main (Germany), represented by H. Berger, M. Weber and D. Schoo, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by J. Kerlin, T. Wittenberg and D. Ceran, acting as Agents, and H.‑G. Kamann, F. Louis, P. Gey and L. Hesse, 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: S. Jund, Administrator,
having regard to the written part of the procedure,
further to the hearing on 7 March 2023,
gives the following
Judgment (1)
1        By its action based on
Article 263 TFEU, the applicant, Deutsche Bank AG, seeks the annulment of 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 (‘the contested decision’), in so far as that decision concerns it.
…
III. Forms of order sought
19      The applicant claims that the Court should:
–        annul the contested decision, including the annexes thereto, in so far as that decision concerns it;
–        order the SRB to pay the costs.
20      The SRB contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs;
–        in the alternative, if the contested decision is annulled, maintain the effects of the contested decision until it is replaced or, at the very least, for a period of six months from the date on which the judgment becomes final.
21      The European Parliament contends that the Court should:
–        dismiss the action in so far as it is based on the plea of illegality in respect of Regulation No 806/2014;
–        order the applicant to pay the costs.
22      The Council of the European Union contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
23      The European Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
IV.    Law
…
A.      The pleas of illegality in respect of Article 69(1) of Regulation No 806/2014 and of Articles 4 to 9 and 20 of and Annex I to Delegated Regulation 2015/63
1.      The second and third part of the fourth plea, alleging the illegality of Article 69(1) of Regulation No 806/2014
27      In the context of the fourth plea, the applicant raised, in essence, three parts. The first concerns the infringement, by the contested decision, of Article 4 of Implementing Regulation 2015/81, read together with Article 69(1) of Regulation No 806/2014, and will be examined as part of the assessment of the lawfulness of that decision. The second and third parts are, in turn, based on the alleged illegality of Article 69(1) of Regulation No 806/2014, because that provision is contrary, first, to the ‘principle of the risk-adjusted calculation of the contributions’ and, second, to Article 114 TFEU.
28      The applicant raised the second and third parts in the event that Article 69(1) of Regulation No 806/2014 should be interpreted as meaning that it bases the calculation of the final target level to be achieved by the aggregate of the ex ante contributions collected before 31 December 2023 (‘the final target level’) on the amount of covered deposits at the end of the initial period of eight years from 1 January 2016 (‘the initial period’). Before examining those parts, it is thus necessary to clarify, first and foremost, the scope of Article 69(1) of that regulation.
(a)    The scope of Article 69(1) of Regulation No 806/2014
29      The applicant submits that Article 69(1) of Regulation No 806/2014 must be interpreted as meaning that the final target level is to be determined ‘statically’, that is to say, having regard to the amount of covered deposits when that regulation entered into force. Accordingly, under that provision, that target level is not to be determined having regard to the level of covered deposits at the end of the initial period.
30      Firstly, the wording of Article 69(1) of Regulation No 806/2014 only in fact refers to the deadline for the constitution of the financial means of the SRF. It does not mean, however, that the final target level is to be defined having regard to the amount of covered deposits at the end of the initial period.
31      Next, the travaux préparatoires for Regulation No 806/2014 show that, when the SRF was established, a ‘static’ final target level of approximately EUR 55 billion was envisaged, corresponding to 1% of the expected covered deposits of all of the institutions on the entry into force of that regulation.
32      Finally, in the light of a teleological and schematic interpretation of Article 69(1) of Regulation No 806/2014, the risk covered by the SRF is not to be measured by reference to the evolution of covered deposits, as an increase in those deposits does not lead to an increase in the risk of the SRF being used.
33      The SRB, the Parliament, the Council and the Commission dispute that line of argument.
34      Article 69(1) of Regulation No 806/2014 provides that, ‘by the end of [the] initial period’, ‘the available financial means of the [SRF] shall reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States’.
35      First of all, it is clear from the wording of that provision that the end date of the initial period is not decisive solely for the purpose of determining the date on which the available financial means of the SRF are to reach at least 1% of the amount of covered deposits of all institutions authorised in all of the Member States participating in the SRM, that is to say, the final target level, but also for that of specifying the amount of those deposits which is to be taken into consideration with a view to calculating that target level.
36      Next, it is clear from the travaux préparatoires for Regulation No 806/2014 that, contrary to the applicant’s
submissions, Article 69(1) thereof is based on a dynamic approach to the final target level, because that level is to be determined having regard to the amount of covered deposits at the end of the initial period. In paragraph 4.3.2 of the explanatory memorandum to its proposal COM(2013)
520
final of 10 July 2013, which led to the adoption of the Regulation, the Commission explained that the final target level would remain dynamic and that it would increase if the banking industry grew.
37      Lastly, the need to take into account the evolution of the amount of covered deposits is explained by the objective of raising the ex ante contributions, which is to ensure, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, as is apparent from recital 41 of Regulation No 806/2014 (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). In accordance with recital 12 of that regulation, the objective of the SRM is, in turn, to increase the stability of the institutions in the participating Member States and to prevent the spill-over of any crises into non-participating Member States.
38      In that regard, it is apparent from paragraph 4.3.2 of the explanatory memorandum to proposal COM(2013)
520
final that the more the banking sector grows over time, the more the financial resources that must be available to the SRF will have to increase. An estimate of that growth can thus be used to project the amount of the financial means which would have to be provided to the SRF for that fund to be used, in the event of a crisis affecting the banking sector, in order to finance the resolution tools and thus to ensure their effective application, in accordance with Article 76(1) of Regulation No 806/2014, read in the light of recital 101
thereof.
39      In addition, in the context of Article 69(1) of Regulation No 806/2014, the EU legislature opted for an approach whereby the purpose of the amount of covered deposits is to estimate the size of the banking sector and thus to calculate the financial resources which must be made available to the SRF. Viewed from such a perspective, any increase in the amount of covered deposits between the start and the end of the initial period represents growth in the size of the banking sector, which means an increase in the financial means required by the SRF at the end of that period.
40      It follows from the foregoing that Article 69(1) of Regulation No 806/2014 must be interpreted as meaning that the amount of the final target level, which is laid down in that provision, is to be determined having regard to the amount of covered deposits existing at the end of the initial period.
(b)    The legality of Article 69(1) of Regulation No 806/2014
(1)    The second part, alleging that Article 69(1) of Regulation No 806/2014 breaches the ‘principle of the risk-adjusted calculation of the contributions’
41      The applicant submits that, if Article 69(1) of Regulation No 806/2014 is interpreted as meaning that the final target level is determined having regard to the amount of covered deposits at the end of the initial period, that provision breaches the ‘principle of the risk-adjusted calculation of the contributions’, which gives expression to the principle of proportionality and stems from Articles 16, 17 and 52 of the Charter, Article 70(2) of Regulation No 806/2014 and the second subparagraph of Article 103(2) of Directive 2014/59.
42      In the light of the significant growth of the amount of covered deposits over recent years, Article 69(1) of Regulation No 806/2014 imposes unjustified and disproportionate charges on the institutions. The ex ante contributions of all of the institutions thus increased, rising from approximately EUR 6.9 billion in 2016 to approximately EUR 11.3 billion in 2021, which represents growth of 64%.
43      However, the risk covered by the SRM and the SRF did not increase significantly over that period.
44      The SRB, the Parliament, the Council and the Commission dispute that line of argument.
45      As stated in paragraphs 35 to 40 above, the final target level is defined, in accordance with Article 69(1) of Regulation No 806/2014, by reference to the amount of covered deposits of all of the institutions concerned at the end of the initial period.
46      While, with a view to challenging that method of determining the final target level, the applicant claims that Article 69(1) of Regulation No 806/2014 breaches the ‘principle of the risk-adjusted calculation of the contributions’, it is clear from its written pleadings, in particular its reply and its observations on the statements lodged by the Parliament and the Council, that it considers that that ‘principle’ stems from the principle of proportionality, as enshrined in Article 5(4) TEU.
47      In those circumstances, there is no need to rule on the question of whether there is, in EU law, an independent ‘principle’ called that ‘of the risk-adjusted calculation of the contributions’. It is sufficient, following the applicant’s line of argument, to assess whether Article 69(1) of Regulation No 806/2014 breaches the principle of proportionality.
48      The principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions and bodies are appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is necessary in order to achieve those objectives; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 165, and of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 142).
49      With regard to the judicial review of the conditions referred to in paragraph 48 above, it must be recalled that, when determining the method of calculating the ex ante contributions, the EU legislature has a broad discretion since it is asked to intervene in an area which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments (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 117 and 118).
50      In those circumstances and in accordance with case-law, the Court’s review of compliance with the principle of proportionality must be limited to examining whether the measures adopted by the EU legislature are manifestly inappropriate as regards the objective pursued, whether or not they manifestly go beyond what is necessary in order to obtain that objective, or whether or not they give rise to disadvantages that are manifestly disproportionate to the objective (see, to that effect, judgment of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraphs 79, 96 and 97).
51      First, with regard to the appropriateness of the rule laid down in Article 69(1) of Regulation No 806/2014, it is apparent from paragraph 37 above that the purpose of that regulation is to provide the SRM with adequate resources to fulfil its functions, which include, inter alia, carrying out the resolution of failing institutions.
52      In that regard, in order to demonstrate that the method of determining the final target level is manifestly inappropriate for attaining the objective set out in paragraph 51 above, the applicant raises, in essence, two lines of argument: the first concerns the relevance of the covered deposits as a parameter for defining that target level and the second the account taken of the amount of those deposits at the end of the initial period.
53      Thus, in the first place, the applicant submits, in essence, that the covered deposits are not an appropriate criterion for determining the final target level, given that those deposits do not necessarily entail the risk of the SRF being used in the context of a resolution procedure.
54      In that regard, it must be observed that, in order to attain the objective set out in paragraph 51 above and as is apparent from recitals 101, 104 and 105 of Regulation No 806/2014, it fell to the EU legislature to provide the SRF with adequate financial resources to allow it to intervene in the event of a crisis in the banking sector and to finance any procedure for the resolution of institutions, in the context of the tasks assigned to it by Article 76(1) of that regulation.
55      Those financial resources, which correspond to the final target level, are to be estimated having regard to the size of the banking sector, bearing in mind that the risk covered by the SRF is the risk which the financial sector as a whole poses to the stability of the financial system (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 71 and 72).
56      In that regard, the SRB explained, in its written pleadings, without being seriously contradicted by the applicant, that the covered deposits allowed an approximate estimate to be made of the size of the banking sector and thus enabled the financial resources required by the SRF to be calculated, with a view to financing the application of the resolution tools in the event of a crisis in that sector.
57      Those deposits constitute commitments made by the institutions, it being borne in mind that, as the Commission contends in its statement in intervention, without being contradicted by the applicant, those deposits in fact represent the majority of those commitments, at the very least in the case of large institutions.
58      In those circumstances, it is not established that, as a specific category of commitments entered into by the institutions, covered deposits are manifestly inappropriate for estimating the size of the banking sector and thus for calculating the resources required by the SRF.
59      That conclusion is not called into question by the applicant’s argument that, in the case of resolution, covered deposits are protected by the DGS, and therefore growth in such deposits does not entail an increase in the risk covered by the SRF.
60      Without it being necessary to examine to what extent the covered deposits present a risk to the use of the financial means of the SRF, it must be observed that the applicant’s argument is founded, in actual fact, on the premiss that those deposits can increase in isolation, without being accompanied by an increase in the institutions’ other commitments which may entail a risk for the SRF.
61      There is, however, nothing to indicate that that is the case.
62      In that regard, as the SRB and the Parliament assert, in essence, in their written pleadings, without the applicant producing any specific evidence to contest those assertions, the amount of covered deposits held by all of the institutions can reflect the overall evolution of the banking sector. In particular, there is nothing to indicate that any increase in that amount cannot be accompanied by an increase in other commitments made by those institutions, such as non-covered deposits, which are not protected by the DGS and which entail, for their part, an increase in the risk covered by the SRF.
63      In that context, the applicant cannot claim that covered deposits are a manifestly inappropriate measure for calculating the final target level by relying on recital 105 of Regulation No 806/2014, which states:
‘The target level of the [SRF] should be established as a percentage of the amount of covered deposits of all credit institutions authorised in the participating Member States. However, since the amount of the total liabilities of those institutions would be, taking into account the functions of the [SRF], a more adequate benchmark, the Commission should assess whether covered deposits or total liabilities is a more appropriate basis and if a minimum absolute level for the [SRF] should be introduced in the future, maintaining a level playing field with Directive [2014/59]’.
64      The mere fact that another criterion may be just as appropriate as that used in the legislation concerned and that the EU legislature states that it is for the Commission to reassess the application of that criterion in the future does not mean that the criterion used in full knowledge of the facts by the EU legislature is manifestly inappropriate for achieving the objective pursued. In that regard, it follows from case-law that it does not fall to the Court, in the context of the review of compliance with the principle of proportionality, to determine whether the measure adopted by the legislature was the only one or the best one possible but whether it was manifestly inappropriate (judgment of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 83).
65      In the second place, the applicant submits that the account taken of the amount of covered deposits at the end of the initial period, for the purpose of determining the final target level, is a manifestly inappropriate measure for attaining the objective cited in paragraph 51 above, that is, to provide the SRM with adequate resources to fulfil its functions.
66      In that regard, it follows from paragraphs 38 and 40 above that, in order to enable the SRM to fulfil its functions effectively, the EU legislature provided that the SRF would be financed taking into account the evolution of the banking sector, bearing in mind that any increase in the size of that sector over time would also mean an increase in the financial resources to be made available to the SRF and, consequently, in the final target level. In addition, in view of the finding made in paragraph 58 above, the amount of covered deposits at the end of the initial period is not manifestly irrelevant for the purpose of reflecting the future size of the sector and thus for guaranteeing adequate funding of the SRF according to the foreseeable situation in that same sector.
67      Furthermore, as observed in paragraph 62 above, it is not manifestly inappropriate to take the evolution of covered deposits as a basis for assuming an increase in other commitments made by the institutions and thus to estimate the potential increase in the risk covered by the SRF.
68      In that context, the applicant cannot, inter alia, rely on Articles 428m and 428n of Regulation 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), alleging that, in accordance with those provisions, covered deposits reduce the liquidity risk of the institutions, and therefore growth in those deposits does not give rise to any risk of the SRF being used and thus need not entail any increase in the final target level.
69      In that regard, it is apparent from recital 32 of Regulation No 575/2013, read together with recital 12 of Regulation No 806/2014, that the legislation concerning prudential requirements pursues a different objective from that of the legislation relating to the resolution of institutions. In those circumstances, Articles 428m and 428n of Regulation No 575/2013 are incapable of establishing that the method of determining the final target level – which falls within the scope of the legislation on the resolution of institutions – is manifestly inappropriate.
70      Similarly, the applicant is wrong to claim that the growth in those deposits should not entail an increase in the final target level, relying on the fact that taking into account high levels of liquidity in relation to covered deposits when calculating the risk indicator ‘liquidity coverage ratio’, pursuant to Article 6(3)(b) of Delegated Regulation 2015/63, would lead to a reduction in the adjusting multiplier of the institution concerned.
71      That fact alone is incapable of demonstrating that the development of the amount of covered deposits is manifestly inappropriate for reflecting the evolution in the size of the banking sector and therefore for determining the financial needs of the SRF and, in particular, for estimating the increase in commitments presenting a risk to the SRF and thus for measuring such a risk, which the SRF would be called on to cover in the context of resolution procedures.
72      It follows from the foregoing that the applicant has failed to demonstrate that the method of determining the final target level, as provided for in Article 69(1) of Regulation No 806/2014, was manifestly inappropriate for achieving the objective referred to in paragraph 51 above.
73      Second, the applicant does not explain how the method of determining the final target level, as it follows from Article 69(1) of Regulation No 806/2014, goes manifestly beyond what is necessary to achieve the objective referred to in paragraph 51 above. In particular, it does not produce specific evidence to show that that objective could be attained by measures that are as effective as those laid down in that provision but which are less burdensome for the institutions concerned than the determination of that target level having regard to the amount of covered deposits at the end of the initial period.
74      In that regard, assuming that the applicant takes the view that the determination of the final target level according to the amount of covered deposits when Regulation No 806/2014 entered into force is a less burdensome methodology, it does not establish how that measure would allow the SRF to have adequate financial resources to ensure that the SRM functions effectively.
75      Similarly, the applicant cannot submit that, with a view to determining the final target level, the EU legislature should have taken into account the reduction in the risk of the SRF being used on account of the eligible liabilities held by the institutions, in accordance with the minimum requirement for own funds and eligible liabilities (‘the MREL’) and the requirement of a loss-absorbing capacity. In that regard, the applicant has not, inter alia, explained how taking account of those liabilities, for the purpose of determining the detailed rules for calculating the final target level, would result in lower charges for the institutions concerned, whilst ensuring that the SRF has adequate financial resources.
76      Finally, assuming that the calculation of the final target level having regard to all of the commitments of the institutions concerned is an appropriate measure, the applicant has not demonstrated that such a calculation would give rise to lower charges for the institutions concerned than the determination of that target level on the basis of the amount of covered deposits at the end of the initial period.
77      Third, the applicant has not presented to the Court any specific evidence intended to demonstrate that, having determined the final target level by reference to the covered deposits existing at the end of the initial period, Article 69(1) of Regulation No 806/2014 had given rise to disadvantages for the institutions that were manifestly disproportionate to the objectives pursued by the EU legislature.
78      In the light of the foregoing, this part must be dismissed.
(2)    The third part, alleging that Article 69(1) of Regulation No 806/2014 infringes Article 114 TFEU
79      The applicant submits that Article 69(1) of Regulation No 806/2014 falls outside the scope of Article 114(1) TFEU. Specifically, by determining the final target level according to the dynamic evolution in the amount of covered deposits at the end of the initial period, that provision does not contribute to achieving the objective of harmonising the conditions of financing resolutions having regard to the risk posed by the banking sector. The increase in ex ante contributions following the growth in covered deposits, despite a reduction in the risk of resolution, leads to an accumulation of resources which is not necessary to achieve that objective of harmonisation. Since there is no connection between the amount of covered deposits and the risk for the SRB, the end result of a dynamic determination of the final target level is that that level is disproportionate.
80      In addition, the ex ante contribution is turned into a tax which is not covered by the power of harmonisation enjoyed by the EU legislature pursuant to Article 114(2) TFEU.
81      The SRB, the Parliament, the Council and the Commission dispute that line of argument.
82      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 must include the aim and content of the measure (see Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 76 and the case-law cited; judgment of 4 September 2018, Commission v Council (Agreement with Kazakhstan), C‑244/17, EU:C:2018:662, paragraph 36).
83      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).
84      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).
85      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 that regulation was 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.
86      It likewise follows from recital 1 of Regulation No 806/2014 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.
87      Furthermore, the EU legislature noted, in recitals 2 to 4 and 12 of Regulation No 806/2014, 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, irrespective of their real creditworthiness.
88      Finally, the EU legislature emphasised, in recitals 9 and 19 of Regulation No 806/2014, the fact that as long as resolution rules and practices and approaches to burden-sharing remained national and the financial resources needed for funding resolution procedures 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.
89      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.
90      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 85 to 88 above.
91      An essential element of those rules and that procedure is the SRF, which makes it possible, as is apparent from Articles 67 and 76 of Regulation No 806/2014 and recital 107 of that regulation, to ensure the efficient exercise of resolution powers and to contribute to the financing of the resolution tools while ensuring their effective application.
92      In order to ensure adequate financial means in the SRF, it is financed, in the light of the considerations set out in paragraphs 85 to 88 above, inter alia, by the ex ante contributions paid by the institutions, the amount of which depends on the final target level established in accordance with Article 69(1) of Regulation No 806/2014.
93      Consequently, the payment of those contributions, as it is determined pursuant to Article 69(1) of Regulation No 806/2014, ensures the efficient application of the uniform rules and the uniform procedure for the resolution of institutions. In turn, as is apparent from recitals 12 and 19 of that regulation, 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.
94      That conclusion is not called into question by the applicant’s argument that Article 69(1) of Regulation No 806/2014 has no connection with the objective of harmonisation since the amount of the final target level, as laid down in that provision, is determined having regard to the amount of covered deposits existing at the end of the initial period.
95      First, the purpose of calculating the ex ante contributions having regard to the final target level is to provide the SRF with financial resources on the basis of a uniform benchmark, for the purpose of the efficient application of the resolution measures in the context of a resolution procedure. Such a calculation is thus capable of breaking the link between an institution and the Member State in which it has registered office, whilst contributing to the establishment and the functioning of the internal market within the meaning of Article 114(1) TFEU. Second, in view of the reasons set out in paragraphs 66 and 67 above, the fact that the final target level is determined having regard to the amount of covered deposits at the end of the initial period cannot be regarded as being unconnected with the objective of harmonisation.
96      In the light of the foregoing, Regulation No 806/2014, in particular Article 69(1) thereof, must be found to have as its objective the improvement of the conditions for the establishment and functioning of the internal market.
97      In the second place, it must be recalled that, by the expression ‘measures for the approximation’ contained in Article 114 TFEU, the authors of the FEU Treaty intended to confer on the Union legislature, depending on the general context and the specific circumstances of the matter to be harmonised, discretion as regards the most appropriate method of harmonisation for achieving the desired result, especially in fields with complex technical features (see judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 102 and the case-law cited).
98      Accordingly, the EU legislature, in its choice of method of harmonisation and taking account of the discretion it enjoys with regard to the measures provided for under Article 114 TFEU, may delegate to a Union body, office or agency powers for the implementation of the harmonisation sought. That is the case in particular where the measures to be adopted are dependent on specific professional and technical expertise and the ability of such a body to respond swiftly and appropriately (judgment of 22 January 2014, United Kingdom v Parliament and Council, C‑270/12, EU:C:2014:18, paragraph 105).
99      In that context, it must be noted, as is apparent from paragraphs 85 to 88 above, that the measures to be adopted in the field of resolution are dependent on specific professional and technical expertise. In those circumstances, the EU legislature could entrust to the SRB the powers to set the amount of the ex ante contributions, having regard to Article 69(1) of Regulation No 806/2014, and to administer the financial means of the SRF in accordance with Article 67(2) and (3) of that regulation.
100    In addition, as is apparent from paragraphs 92 and 93 above, Article 69(1) of Regulation No 806/2014 is an essential element of the rules and the procedure for the resolution of institutions, which contributes to preventing differing national practices from hindering the exercise of fundamental freedoms or distorting competition in the internal market.
101    In those circumstances, Article 69(1) of Regulation No 806/2014 may be regarded as a provision for the approximation of the Member States’ provisions relating to the resolution of institutions in the banking union.
102    It follows from all of the foregoing considerations that Article 69(1) of Regulation No 806/2014 satisfies the conditions set out in Article 114(1) TFEU.
103    In the third place, it is necessary to consider the applicant’s argument that, since the final target level is determined having regard to the amount of covered deposits, the ex ante contribution is, in essence, a tax and is not therefore covered by the EU legislature’s power of harmonisation pursuant to Article 114(2) TFEU.
104    Article 114(2) TFEU provides that paragraph 1 of that provision is not to apply, inter alia, to ‘fiscal provisions’.
105    With regard to the interpretation of the words ‘fiscal provisions’, it must be observed that the FEU Treaty does not contain a 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).
106    That said, the Court of Justice has held that a levy paid by economic operators in a certain sector is not fiscal in nature where, in particular, it is directly allocated to the financing of the costs in that sector alone and where those costs are necessary for the functioning of that sector in order, inter alia, 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).
107    That reasoning also applies in the case of the ex ante contributions, which follow an insurance-based logic and are paid by the economic operators of a certain sector exclusively in order to finance the costs of that sector.
108    Accordingly, as regards the nature of the ex ante contributions, it has already been stated in paragraph 85 above that Regulation No 806/2014 had been adopted against a backdrop of economic and financial crisis, which had 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. The purpose of the SRM is to avoid 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 that regulation.
109    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.
110    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).
111    Therefore, in accordance with Article 67(2) and (4) and recital 61 of Regulation No 806/2014, the ex ante contributions are collected from economic operators in the financial sector in order to supply the SRF, which may use those contributions 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.
112    In that regard, it must be observed that, as follows from Article 1 of Regulation No 806/2014, the measures referred to in paragraph 111 above are applied solely for the benefit of the institutions which are required to pay the ex ante contributions.
113    It is true that Regulation No 806/2014 does not establish 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).
114    The fact remains that the institutions benefit in two respects from the SRF, which is financed specifically by their ex ante contributions.
115    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 are also met. Such a procedure thus allows the financial means of the SRF to be used for the benefit of such institutions, it being recalled that those means were provided by the institutions’ contributions.
116    Second, all institutions benefit from their ex ante contributions through the stability of the financial system, which is ensured by the SRF.
117    The risk covered by the SRF 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).
118    It follows that it is from an insurance-based rather than a tax-based perspective that the SRF seeks 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.
119    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 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.
120    It follows from the foregoing that the institutions pay the ex ante contributions according to an insurance-based logic, it being recalled that those contributions are directly allocated solely to the financing of the costs of the financial sector of which those institutions are members and that those costs are necessary for the functioning of that sector in order, inter alia, to stabilise it should certain institutions fail and to limit contagion effects.
121    Accordingly, the provisions of Regulation No 806/2014 which require the institutions to pay ex ante contributions and which specify the methods for their calculation, in particular Article 69(1) thereof, do not constitute ‘fiscal provisions’ within the meaning of Article 114(2) TFEU.
122    That conclusion is not called into question by the applicant’s argument that Article 69(1) of Regulation No 806/2014 has no connection with the objective of harmonisation, since the amount of the final target level, as laid down in that provision, is determined having regard to the amount of covered deposits existing at the end of the initial period, and therefore the ex ante contribution is turned into a tax.
123    First, for the reasons set out in paragraph 95 above, such a method of calculating the final target level cannot be regarded as being unconnected with the objective of harmonisation. Second, the detailed rules governing the calculation of that amount have no bearing on the fact that the proceeds of the ex ante contributions are specifically and directly allocated to the financing of the costs in that sector alone and that those contributions can be regarded as necessary for the functioning of that sector, in order to stabilise it.
124    It follows from all of the foregoing considerations that Article 114 TFEU was an appropriate legal basis for the adoption of Article 69(1) of Regulation No 806/2014.
125    In the light of the foregoing, the third part of the fourth plea must be dismissed.
(c)    Conclusion on the second and third parts of the fourth plea
126    It follows from the foregoing that the fourth plea must be dismissed in so far as it is based on a plea of illegality in respect of Article 69(1) of Regulation No 806/2014.
…
B.      The pleas concerning the legality of the contested decision
1.      The first plea, alleging failures to state adequate reasons
…
(d)    The second part, concerning the reasons stated for the annual target level
338    According to the applicant, the reasons for the determination of the annual target level are not duly stated in the contested decision. In particular, the SRB should have explained to what extent it had taken account of the potential impact of pro-cyclical contributions on the financial position of the institutions concerned. In addition, the SRB failed to communicate the forecasted final target level or its interpretation of the cap mentioned in the second subparagraph of Article 70(2) of Regulation No 806/2014. As the decision fixing the ex ante contributions for the 2022 contribution period shows, the SRB takes the view that it is authorised to increase the annual target level at its discretion by applying a coefficient which is not provided for in the applicable legislation and, in so doing, to impose a disproportionate charge on the institutions.
339    In response, the SRB contends that it is clear from recitals 35 to 48 of the contested decision that it complied with its duty to state reasons as regards the determination of the annual target level for the 2021 contribution period.
340    In particular, it is apparent from recitals 43 to 48 of the contested decision that the SRB took account of the COVID-19 pandemic as part of the analysis of the phase of the business cycle and of the potential pro-cyclical impact of the contributions on the financial position of the contributing institutions. In that regard, the SRB explained that it expected an economic rebound in the course of 2021, even though that rebound remained difficult to predict.
341    Furthermore, the SRB published the forecasted final target level on its website and the applicant was aware of its publication. The alleged failure to disclose the SRB’s interpretation vis-à-vis the 12.5% cap provided for in Article 70(2) of Regulation No 806/2014 cannot affect the legality of the statement of reasons for the contested decision.
342    As a preliminary point, it must be recalled that, in accordance with Article 69(1) of Regulation No 806/2014, by the end of 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.
343    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 342 above is reached, but with due account being taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.
344    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.
345    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.
346    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.
347    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.
348    The SRB set out the approach followed to determine the coefficient in recitals 38 to 47 of the contested decision.
349    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.
350    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%.
351    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.
352    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.
353    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’.
354    However, at the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period as follows.
355    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. In arriving 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.
356    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.
357    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.
358    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 346 above, that is to say, approximately EUR 11.287 billion.
359    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 355 to 358 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.
360    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.
361    To that end, the parties’ arguments were heard, in the course of the oral part of the procedure, concerning any failures to state reasons which would vitiate the contested decision as regards the determination of the annual target value. In particular, in response to a number of questions expressly put in that regard, the SRB described, step by step, the methodology which it had actually adopted in order to determine the annual target level for the 2021 contribution period, as set out in paragraphs 355 to 358 above.
362    Next, as regards the content of the duty to state reasons, it follows from case-law that the statement of reasons for a decision adopted by an EU institution or body 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).
363    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 the 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).
364    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 299 and 300 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.
365    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).
366    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 paragraph 15 above, 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.
367    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.
368    That is not however the case here.
369    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 355 to 358 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 initial period and dividing the latter result by three. However, those two steps of the calculation are not expressed in the mathematical formula.
370    It is true that it follows from the applicant’s arguments, in the context of this plea, that it was aware of the fact sheet and, accordingly, of any amounts of the final target level stated within the range included in that fact sheet. However, even if it also knew the amount of the available financial means in the SRF, those facts alone did not mean that it understood that the two operations referred to in paragraph 369 above had actually been applied by the SRB, bearing in mind, moreover, that the mathematical formula laid down in recital 48 of the contested decision did not even mention them.
371    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 370 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, as the SRB acknowledged at the hearing, 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 355 to 358 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.
372    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 value.
373    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.
374    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 value.
375    The second part of the first plea must therefore be upheld. 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 in the action to be examined.
…
3.      The first part of the fourth plea, concerning infringement of Article 4 of Implementing Regulation 2015/81, read together with Article 69(1) of Regulation No 806/2014
487    The applicant submits, in the context of the first part raised in support of the fourth plea, that the SRB infringed Article 4 of Implementing Regulation 2015/81, read together with Article 69(1) of Regulation No 806/2014, because, when it determined the final target level, it took into consideration the projected amount of the institutions’ covered deposits at the end of the initial period. However, in the light of Article 69(1) of Regulation No 806/2014, the SRB should have determined that target level ‘statically’, taking into account the amount of the institutions’ covered deposits when that regulation entered into force.
488    The SRB, the Parliament, the Council and the Commission dispute that line of argument.
489    In that regard, it follows from paragraphs 35 to 40 above that Article 69(1) of Regulation No 806/2014 must be interpreted as meaning that the final target level is to be determined having regard to the amount of covered deposits at the end of the initial period. The SRB was therefore right to take into account, in recitals 38 to 41 of the contested decision, the evolution in covered deposits until the end of the initial period, with a view to determining the final target level and, subsequently, to establishing based on that level the annual target level.
490    The first part of the fourth plea must thus also be dismissed.
…
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1.      Annuls Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex-ante contributions to the Single Resolution Fund, in so far as it concerns Deutsche Bank AG;
2.      Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Deutsche Bank 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 Deutsche Bank 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
17 July 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.