ORDER OF THE GENERAL COURT (Second Chamber)
6 August 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 ex ante contributions for the 2023 contribution period – Article 70(2) of Regulation (EU) No 806/2014 – Action manifestly well founded – Limitation of the temporal effects of the order)
In Case T‑412/23,
Nordea Bank Abp, established in Helsinki (Finland), represented by H. Berger, M. Weber and D. Schoo, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by C. De Falco, C. Flynn and J. Kerlin, acting as Agents, and by G. Coppo and K. Bongs, lawyers,
defendant,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, V. Tomljenović and L. Spangsberg Grønfeldt (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
1        By its action based on Article 263 TFEU, the applicant, Nordea Bank Abp, seeks annulment of Decision SRB/ES/2023/23 of the Single Resolution Board (SRB) of 2 May 2023 on the calculation of the 2023 ex ante contributions to the Single Resolution Fund (SRF) (‘the contested decision’), in so far as that decision concerns it.
Background to the dispute
2        The applicant is a Finnish credit institution.
3        By the contested decision, the SRB determined, taking into consideration Article 70(2) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1), the ex ante contributions to the SRF (‘the ex ante contributions’) for 2023 (‘the 2023 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation (‘the institutions’), including the applicant.
4        By means of a collection notice, the competent national resolution authority within the meaning of Article 3(1)(3) of Regulation No 806/2014 ordered the applicant to pay its ex ante contribution for the 2023 contribution period, as determined by the SRB in the contested decision.
Contested decision
5        The contested decision consists of the body of that decision, together with three annexes.
6        The body of the contested decision sets out the process for determining the ex ante contributions for the 2023 contribution period; that process applies to all of the institutions.
7        To that end, first of all, the SRB noted, in Section 5 of the contested decision, that in accordance with Article 69 of Regulation No 806/2014 and Article 4 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation No 806/2014 with regard to ex ante contributions to the SRF (OJ 2015 L 15, p. 1) it was required to determine the annual target level for the 2023 contribution period.
8        Then, in Section 5 of the contested decision, the SRB stated that, at the end of the transitional period of eight years running from 1 January 2016 to 31 December 2023 (‘the initial period’), the available financial means of the SRF should reach a target level (‘the final target level’) of at least 1% of the amount of covered deposits (‘covered deposits’) of all institutions authorised in the Member States participating in the Single Resolution Mechanism of credit institutions and certain investment firms (SRM) (‘the participating Member States’).
9        As regards the 2023 contribution period, the eighth and final year of the initial period, the SRB explained that it had determined the annual target level by taking into account (i) the final target level, based on the projected growth of covered deposits in 2023, as well as (ii) the available means in the Fund on 31 December 2022, (iii) the expected economic return on the financial means in 2023, (iv) the settlement of the differences arising as a result of restated data and (v) the reimbursement of the remaining share of the 2015 ex ante contributions.
10      At that stage, in accordance with Article 69(2) of Regulation No 806/2014 and Article 3 of Commission Delegated Regulation (EU) 2017/747 of 17 December 2015 supplementing Regulation No 806/2014 with regard to the criteria relating to the calculation of ex ante contributions, and on the circumstances and conditions under which the payment of extraordinary ex post contributions may be partially or entirely deferred (OJ 2017 L 113, p. 2), the SRB stated that it had assessed the phase of the business cycle and the potential pro-cyclical impact that contributions may have on the financial position of contributing institutions by taking into account, jointly for all participating Member States, the indicators described in the annex to Delegated Regulation 2017/747.
11      Consequently, having carried out the above analyses, the SRB stated in the contested decision the annual target level that it had determined in accordance with the abovementioned provisions.
12      In Section 6 of the contested decision, the SRB described the method to be used to calculate the ex ante contributions for the 2023 contribution period depending on the different types of institution under consideration.
Forms of order sought
13      The applicant claims, in essence, that the Court should:
–        annul the contested decision in so far as it concerns the applicant;
–        order the SRB to pay the costs.
14      The SRB contends that the Court should:
–        dismiss the action;
–        in the alternative, in the event that the contested decision is annulled, maintain its effects either until it is replaced or for a period of at least six months from the date on which the judgment becomes final;
–        order the applicant to pay the costs.
Law
15      In support of its action, the applicant, like 45 other applicants in the ‘2023 ex ante contributions’ group of cases, which brings together 48 actions for annulment lodged by German, Austrian, French, Finnish and Netherlands credit institutions against the contested decision, puts forward one ground of complaint, alleging infringement of Article 70(2) of Regulation No 806/2014.
16      By that ground of complaint, the applicant submits, in essence, that, in determining the 2023 annual target level, the SRB infringed Article 70(2) of Regulation No 806/2014, which requires it to calculate the individual ex ante contributions so that the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States do not exceed 12.5% of the final target level (‘the 12.5% cap’).
17      The SRB contends, primarily, that the rule laid down in Article 70(2) of Regulation No 806/2014, which stipulates that the 12.5% cap must not be exceeded, does not apply during the initial period. It argues that the rule laid down in Article 69(2) of that regulation, according to which ex ante contributions must be spread out in time as evenly as possible until the target level is reached, takes precedence over the requirement under Article 70(2) of that regulation.
18      In the alternative, the SRB contends, in essence, that the requirement provided for in Article 70(2) of Regulation No 806/2014 should be disregarded or be interpreted flexibly because otherwise it would be impossible for it to comply with the requirements arising under Article 69(1) and (2) of Regulation No 806/2014, according to which, first, it must ensure that the SRF reaches its final target level of at least 1% of covered deposits by the end of the initial period and, second, the ex ante contributions must be spread out in time as evenly as possible until the final target level 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 institutions.
19      In that regard, the Court recalls that Article 69(1) of Regulation No 806/2014 provides that, by the end of the initial period, the available financial means of the SRF must reach the final target level, which corresponds to at least 1% of the amount of covered deposits of all of the institutions authorised in the territories of all of the participating Member States.
20      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 referred to in paragraph 19 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 institutions.
21      Next, the first subparagraph of Article 70(2) of Regulation No 806/2014 provides that, ‘each year, the [SRB] shall … calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level’. The fourth subparagraph of Article 70(2) of that regulation adds that, ‘in any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States … shall not exceed annually the 12.5% of the target level’.
22      At the outset, it should be noted that the parties’ arguments alleging infringement of Article 70(2) of Regulation No 806/2014 are of the same nature as those set out by the parties in the case which gave rise to the judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, under appeal, EU:T:2024:216, paragraphs 22 to 25 and 49), in which a ruling is given on the legal framework set out in paragraphs 19 to 21 above, which is also the subject of the present action.
Whether the present action is manifestly well founded
23      Under Article 132 of the Rules of Procedure of the General Court, where the Court of Justice or the General Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the action, and the General Court finds that the facts have been established, it may, after the written part of the procedure has been closed, on a proposal from the Judge-Rapporteur and after hearing the parties, decide by reasoned order, in which reference is made to the relevant case-law, to declare the action manifestly well founded.
24      In that regard, in the first place, as regards the condition relating to the existence of ‘one or more [identical] questions of law’, it should be noted that the Court has already ruled on a question of law identical to that raised by the applicant in its action.
25      The Eighth Chamber (Extended Composition) of the General Court annulled Decision SRB/ES/2022/18 of the SRB of 11 April 2022 on the calculation of the 2022 ex ante contributions to the SRF, on the ground that ‘the contested decision [in that case] determined the amount of the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States to be an amount that exceeded the cap of 12.5% of the forecast final target level’ and that, therefore, ‘the SRB infringed the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014’ (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraphs 64 and 65).
26      The Court thus found that ‘when the SRB calculated the ex ante contributions relating to the 2022 contribution period, it was required to verify, in accordance with the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, and on the basis of its own estimate of the final target level, that the amount of the ex ante contributions due from all of the institutions authorised in the territories of all of the participating Member States did not exceed [the amount provided for by that provision]’ (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraph 62).
27      It should also be noted that, in its assessment, the Court concluded, first of all, applying reasoning that can be applied to the present case, that ‘the 12.5% cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 is to apply during the initial period’ (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraph 38).
28      Next, as regards the possibility of disregarding or interpreting flexibly the 12.5% cap at the stage of calculating the amount of the ex ante contributions due by the institutions in the participating Member States for a given year for the reasons put forward in that regard by the SRB, the Court began by recalling that ‘it is the forecast final target level that is decisive for the application of the 12.5% cap’ and that, ‘consequently, when the SRB calculates the ex ante contributions during a given contribution period, it must ensure, in accordance with the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, that the amount of the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States does not exceed 12.5% of the forecast final target level’ (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraphs 47 and 48; see also, 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).
29      It is also apparent from the relevant case-law that, in dismissing the arguments put forward by the SRB in support of its interpretation, the Court subsequently noted that ‘the meaning of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 is unambiguously clear from the very wording of that provision’. That provision is worded in mandatory terms, as the use of the expressions ‘shall not exceed 12.5% of the target level’ (first subparagraph) and ‘in any case, the aggregate amount of individual contributions … shall not exceed annually the 12.5% of the target level’ (fourth subparagraph) demonstrates. In addition, that provision determines the cap to be exactly 12.5%, reiterating it twice and without any exception, with the result that it cannot be changed or adjusted by the authority responsible for calculating ex ante contributions (see judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraphs 50 to 52). That assessment can be transposed to the present case.
30      In those circumstances, the Court has already stated how the arguments put forward by the SRB in support of its interpretation were not convincing (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraphs 53 to 58). Those explanations also make it possible to respond to the equivalent arguments put forward by the SRB in the present case.
31      In the second place, as regards the condition relating to the finding that ‘the facts have been established’, it should be noted that, as in the SRB’s decision on ex ante contributions for the 2022 contribution period (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraph 64), the SRB, as it admits, in essence, determined the amount of the ex ante contributions due by all of the institutions in the participating Member States for the 2023 contribution period to be an amount that exceeded the cap of 12.5% of the final target level it had estimated.
32      It is thus apparent from the contested decision that, in determining the annual target level for the 2023 contribution period, the eighth and final year of the initial period, the SRB never indicated that it took into account the 12.5% cap. It is also apparent from Annex III to the contested decision, entitled ‘Evaluation of the submissions made in the consultation on the 2023 ex-ante contributions to the [SRF]’, that, in response to the comments submitted by several institutions on the compliance with Article 70(2) of Regulation No 806/2014 of the calculations made by the SRB, the Appeal Panel of the SRB considered that, ‘during the initial period, the 12.5% cap is either inapplicable or at least not to be understood as an absolute upper limit’.
33      Therefore, given, first, that the question of law on which the Court ruled in the judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, under appeal, EU:T:2024:216) is identical to that raised by the applicant in its action and, second, that the contested decision in the present case has the same defect as the one found by the Court in that judgment and that it therefore follows that the SRB infringed the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, it must be concluded, after hearing the parties, that the action is manifestly well founded on that point.
34      As has already been held in the judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, under appeal, EU:T:2024:216, paragraph 66), such an error of law alone is such as to justify the annulment of the contested decision in so far as it concerns the applicant.
Limitation of the temporal effects of the order
35      The SRB asks that, in the event that the contested decision is annulled, the Court maintain the effects of that 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, since such an annulment would have serious consequences for financial stability in the banking union.
36      The applicant had the opportunity to submit its comments on that request.
37      Under the second paragraph of Article 264 TFEU, the EU judicature may, if it considers it necessary to do so, state which of the effects of an act which it has declared void are to be considered definitive. In exercising the power conferred on it by that article, the EU judicature is to have regard to respect for the principle of legal certainty and other public or private interests (see judgment of 25 February 2021, Commission v Sweden, C‑389/19 P, EU:C:2021:131, paragraph 72 and the case-law cited; see also, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 122).
38      Accordingly, the second paragraph of Article 264 TFEU has been interpreted, inter alia, as allowing, on grounds of legal certainty, but also on grounds seeking to prevent a lack of continuity or a decline in the implementation of policies conducted or supported by the European Union, the effects of an act declared void to be maintained for a reasonable period (see judgment of 27 January 2021, Poland v Commission, T‑699/17, EU:T:2021:44, paragraph 61 and the case-law cited).
39      In the present case, it is important to note that, if the SRB were required to repay, with immediate effect, the amount of the applicant’s ex ante contribution and the amounts of the ex ante contributions of the other institutions concerned, even though those institutions remain in principle subject to the obligation to pay the legally owed ex ante contributions, such a repayment would risk depriving the SRF of the financial means necessary to achieve its objectives.
40      In such a context, the Court held, in response to a request for limitation of the temporal effects of the judgment made by the SRB in the cases relating to the decision on the calculation of the ex ante contributions for the 2022 contribution period, that the rejection of the request to maintain the effects of that decision would risk undermining the objective of financial stability and the objective of creating an economic and monetary union (judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions), T‑411/22, under appeal, EU:T:2024:216, paragraph 74).
41      Therefore, in so far as the contested decision in the present case is of the same nature as that which was annulled in the judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, under appeal, EU:T:2024:216), it is necessary to adopt the same decision as that adopted in that judgment and maintain the effects of the contested decision in so far as it concerns the applicant until the SRB has taken the measures necessary to implement the present order, which must occur within a reasonable period that cannot exceed six months from the day on which the present order becomes final.
42      It is true that some applicants indicated to the Court that they had become aware of a press release from the SRB issued on 15 February 2024, in which it stated that, on 31 December 2023, the amount of available financial means in the SRF was EUR 78 billion, whereas the final target level corresponding to 1% of covered deposits was EUR 75 billion, and that it was not necessary to request additional contributions from the institutions in 2024. In the present case, however, the SRF surplus amounting to EUR 3 billion is not decisive as regards the temporary maintenance of the effects of the contested decision. The amount of the applicant’s ex ante contribution and the ex ante contributions of the other institutions concerned would risk exceeding that surplus. Moreover, the temporary maintenance of the effects of the contested decision in the present case enables the SRB to define a common position as regards the 2023 and 2022 contribution periods, in respect of which the method for calculating ex ante contributions applied by the SRB has a defect of the same nature.
Costs
43      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has applied for costs and the SRB has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the applicant.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1.      Decision SRB/ES/2023/23 of the Single Resolution Board (SRB) of 2 May 2023 on the calculation of the 2023 ex ante contributions to the Single Resolution Fund (SRF) is annulled in so far as it concerns Nordea Bank Abp.
2.      The effects of Decision SRB/ES/2023/23, in so far as it concerns Nordea Bank, are maintained until the SRB has taken the measures necessary to implement the present order, which must occur within a reasonable period that cannot exceed six months from the day on which the present order becomes final.
3.      The SRB shall bear its own costs and pay those incurred by Nordea Bank.
Luxembourg, 6 August 2024.
V. Di Bucci
A. Marcoulli
Registrar
President
*      Language of the case: English.