JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
23 October 2024 (*)
( Economic and monetary union – Banking union – Single Resolution Mechanism of credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Decision of the Single Resolution Board (SRB) on the calculation of the ex ante contributions for the 2022 contribution period – Article 70(2) of Regulation (EU) No 806/2014 – Error of law – Limitation of the temporal effects of the judgment )
In Case T‑431/22,
Nordea Kiinnitysluottopankki Oyj, established in Helsinki (Finland), represented by H. Berger, M. Weber and D. Schoo, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by J. Kerlin, C. Flynn, K.‑P. Wojcik and C. De Falco, acting as Agents, and by G. Coppo and K. Bongs, lawyers,
defendant,
supported by
European Parliament, represented by O. Denkov, J. Etienne and E. Ni Chaoimh, acting as Agents,
and by
Council of the European Union, represented by J. Haunold, E. d’Ursel and A. Westerhof Löfflerová, acting as Agents,
interveners,
THE GENERAL COURT (Eighth Chamber, Extended Composition),
composed of A. Kornezov, President, G. De Baere, D. Petrlík, K. Kecsmár and S. Kingston (Rapporteur), Judges,
Registrar: S. Jund, Administrator,
having regard to the written part of the procedure, in particular:
–        the SRB’s request of 15 June 2023 to join the present case with Cases T‑430/22, Nordea Bank
v SRB (2022 ex ante contributions), and T‑432/22, Nordea Rahoitus Suomi v SRB (2022 ex ante contributions), for the purposes of any oral part of the procedure, and the decision of the Eighth Chamber of 12 December 2023 not to join the cases in question and to organise a joint hearing in accordance with Article 106a of the Rules of Procedure of the General Court;
–        the measure of organisation of procedure of the General Court of 19 September 2023 asking the SRB to produce all the interim decisions taken by it which are relevant to the determination of the final target level and/or the annual target level set out in Decision SRB/ES/2022/18 of the SRB of 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRF) and the SRB’s response of 28 September 2023 stating that it was not in a position to produce the documents sought in view of their confidential nature and asking the Court to adopt a measure of inquiry; and
–        the order of 14 November 2023 requiring the SRB to produce the abovementioned documents, to which the SRB replied within the prescribed period,
further to the hearing on 7 February 2024,
gives the following
Judgment
1        By its action based on Article 263 TFEU, the applicant, Nordea Kiinnitysluottopankki Oyj, seeks annulment of Decision SRB/ES/2022/18 of the Single Resolution Board (SRB) of 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRF) (‘the contested decision’), in so far as that decision concerns its ex ante contribution.
Background to the dispute
2        The applicant is a credit institution established in Finland.
3        By the contested decision, the SRB determined, pursuant to Article 70(2) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a SRF 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 2022 (‘the 2022 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation (‘the institutions’), including the applicant.
4        By an assessment notice of 28 April 2022, the Rahoitusvakausvirasto (Financial Stability Authority, Finland), in its capacity as the 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 2022 contribution period, as determined by the SRB.
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 2022 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, at the end of the initial period of eight years from 1 January 2016 (‘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 of all institutions authorised in the Member States participating in the Single Resolution Mechanism of credit institutions and certain investment firms (SRM) (‘the covered deposits’ and ‘the participating Member States’).
8        Then, in Section 5 of the contested decision, the SRB determined the annual target level, to which reference is made in Article 4 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1) for the 2022 contribution period (‘the annual target level’). In that regard, the SRB stated that it had taken into account the information provided for in Article 3 of Commission Delegated Regulation (EU) 2017/747 of 17 December 2015 supplementing Regulation No 806/2014 of the European Parliament and the Council 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).
9        In addition, the SRB explained that it had determined that the annual target level would be ⅛ of 1.6% of the amount of covered deposits of all institutions in 2021, as obtained from data provided by deposit guarantee schemes in accordance with Article 16 of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).
10      In Section 6 of the contested decision, the SRB described the method to be used to calculate the ex ante contributions for the 2022 contribution period.
11      In Section 6 of the contested decision, the SRB also explained that institutions other than those paying a flat-rate contribution in view of their particular characteristics had to pay an ex ante contribution adjusted depending on their risk profile, which it had determined following the main stages set out below.
12      In the first stage, the SRB calculated, in accordance with point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, the basic annual contribution of each institution, which is pro-rata based on the amount of the liabilities of the institution concerned excluding own funds and covered deposits (‘the net liabilities’), with respect to the net liabilities of all of the institutions authorised in the territories of all of the participating Member States. Pursuant to Article 5(1) of Delegated Regulation 2015/63, the SRB deducted certain types of liabilities from the net liabilities of the institution that were to be taken into account in order to determine that contribution.
13      In the second stage of the calculation of the ex ante contribution, the SRB adjusted the basic annual contribution in proportion to the risk profile of the institution concerned, in accordance with point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014.
14      The SRB calculated the ex ante contribution of each institution by spreading out the annual target level among all of the institutions using a ratio based on the basic annual contribution adjusted according to the risk profile.
Forms of order sought
15      The applicant claims that the Court should:
–        annul the contested decision, including its annexes, in so far as it concerns its ex ante contribution;
–        order the SRB to pay the costs.
16      The SRB contends that the Court should:
–        dismiss the action as inadmissible or, in any event, as unfounded;
–        in the alternative, in the event that the contested decision is annulled in full or in part, 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; and
–        order the applicant to pay the costs.
17      The European Parliament contends that the Court should:
–        dismiss the action in so far as it is based on a plea of illegality in respect of Regulation No 806/2014;
–        order the applicant to pay the costs.
18      The Council of the European Union contends that the Court should:
–        dismiss the action; and
–        order the applicant to pay the costs.
Law
19      In support of its action, the applicant raises four pleas in law, alleging:
–        first, infringement of Article 69 of Regulation No 806/2014 and of Articles 16, 17, 41 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’);
–        second, manifest errors of assessment in determining the annual target level;
–        third, infringement of Article 70(2) of Regulation No 806/2014 and of Articles 16, 17 and 52 of the Charter;
–        fourth, in the alternative, a plea of illegality in respect of Articles 69 and 70 of Regulation No 806/2014, based on an infringement of the ‘principle of the risk-oriented setting of contributions’, of the principle of proportionality, of Articles 16, 17 and 52 of the Charter, of the requirements of the rule of law as regards legal certainty and of the principles stemming from the judgment of 13 June 1958, Meroni v High Authority (10/56, EU:C:1958:8).
20      In the present case, the Court considers that it is appropriate to start by examining the third plea in law.
The third plea in law, alleging infringement of Article 70(2) of Regulation No 806/2014 and of Articles 16, 17 and 52 of the Charter
21      The third plea consists of two complaints, alleging, first, infringement of Article 70(2) of Regulation No 806/2014 and, second, infringement of Articles 16, 17 and 52 of the Charter.
22      It is appropriate to start by examining the first complaint.
23      By that complaint, the applicant submits that, by determining that the annual target level was EUR 14 253 573 821.46, which corresponds to ⅛ of 1.6% of covered deposits in 2021, 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’).
24      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, since the first rule constitutes a lex specialis ratione temporis as compared with the second requirement, which, by contrast, is merely a lex generalis.
25      In the alternative, the SRB contends, in essence, and as indicated in particular at the hearing, that the rule laid down in Article 70(2) of Regulation No 806/2014 that the 12.5% cap must not be exceeded is not absolute. It argues that it is impossible to apply that rule at the same time as the requirement under Article 69(1) of that regulation which requires it to ensure that the SRF reaches its final target level, which is equivalent to at least 1% of covered deposits, by the end of the initial period. It claims that the main reason why it is impossible to do so is the dynamic nature of the final target level, in the sense that that target level is likely to increase during the initial period. Thus, in the event of an increase in covered deposits, which would result in an increase in the final target level, and an underestimation by the SRB of the amount of that target level at the beginning of the initial period, the literal application of Article 70(2) of Regulation No 806/2014 would prevent the SRB from making any subsequent adjustment to the financial means to be collected in the SRF in order to remedy that underestimation. It is difficult, if not impossible, for the SRB to predict precisely what the final target level will be, on account of the unforeseen events that may arise during the initial period, which would affect the evolution of the amount of covered deposits. In the light of those circumstances, and having regard to the objective of general interest pursued by the SRF – namely to contribute to the financial stability of the European Union – the SRB should have given priority to the aim of achieving the final target level by the end of the initial period, with the result that the requirement laid down in Article 70(2) of Regulation No 806/2014 should be disregarded or interpreted flexibly.
26      In that regard, in addition, the SRB submits that if the rule laid down in Article 70(2) of Regulation No 806/2014 that the 12.5% cap must not be exceeded were applicable during the initial period and if it were to be applied strictly, it would be impossible for it to comply with Article 69(2) of that regulation, which requires, first, that ex ante contributions be spread out in time as evenly as possible and, second, that due account be taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of institutions. In order to resolve the tension between the two provisions concerned, it is necessary, in particular, to interpret the 12.5% cap as being intended merely to give concrete expression, in a non-binding manner, to the requirement that ex ante contributions must be spread out in time as evenly as possible.
27      In the further alternative, the SRB submits that, since the amount of the final target level will be set definitively at the end of the initial period, compliance with the 12.5% cap can be verified only at the end of 2023. Where Article 70(2) of Regulation No 806/2014 refers to the ‘target level’, it is referring to the actual and certain final target level, known at the end of that period.
28      The Parliament and the Council claim that, contrary to the SRB’s primary submission, the requirement in Article 70(2) of Regulation No 806/2014 that the 12.5% cap must not be exceeded applies during the initial period. However, they agree with the SRB’s position in the alternative that that requirement is not absolute and must be read and applied flexibly in the light of the main objective that the SRF must reach the final target level at the end of the initial period.
29      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.
30      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 29 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.
31      Next, the first subparagraph of Article 70(2) of Regulation No 806/2014 provides that, ‘each year, the Board 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’.
32      In the first place, as regards the temporal application of the requirement to apply a 12.5% cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, it should be recalled that the Court has already held that that requirement was intended to apply during the initial period (see, to that effect, judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraphs 68, 69 and 100).
33      That follows, first of all, from the clear wording of Article 69(2) of Regulation No 806/2014, which provides that, ‘during the initial period’, ex ante contributions are to be calculated ‘in accordance with Article 70’ of that regulation, such a reference indicating, unambiguously, that all the requirements laid down in the latter provision, including the requirement laid down in the first and fourth subparagraphs of paragraph 2 thereof, are to apply during the initial period.
34      Next, the first subparagraph of Article 70(2) of Regulation No 806/2014 states that the SRB must comply with the requirement to apply a 12.5% cap ‘each year’, without in any way limiting its application in time to the period following the initial period.
35      Similarly, no other provision of Regulation No 806/2014 states that the requirement to apply a 12.5% cap is not to apply during the initial period or that the SRB may derogate from it during that period.
36      Lastly, the interpretation according to which that requirement is to apply during the initial period is confirmed by the origin of Regulation No 806/2014.
37      It is apparent from point 4.3.2 of the explanatory memorandum to the European Commission’s proposal of 10 July 2013 (COM(2013) 520 final) and from Article 65(1) of that proposal, which led to the adoption of Regulation No 806/2014, that the Commission had proposed, in its legislative proposal, that the initial period for the establishment of the SRF should be 10 years.
38      During the subsequent stages of the legislative procedure, the Council had proposed – as is apparent from the interinstitutional document of 27 March 2014 (8078/1/14 REV 1), which was discussed at the hearing – that the ex ante contributions due by all of the institutions authorised in the territories of all the participating Member States should not exceed, annually, 10% of the final target level. When the Parliament and the Council agreed, during the legislative procedure, to shorten the initial period to eight years, they decided at the same time to increase the cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 to 12.5%.
39      It follows, as indeed the Council confirmed in the present proceedings, that the EU legislature established a link between the number of years in the initial period and the percentage of the cap laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014.
40      It follows from all the foregoing 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.
41      That is, moreover, what the SRB itself acknowledged in paragraph 106 of Annex III to the contested decision, which contains its assessment of the observations of the institutions participating in the consultation relating to the 2022 ex ante contributions to the SRF, stating that, ‘by the application of [a] coefficient to [⅛] of the total amount of the deposits in question, [it] respects the 12.5% cap’.
42      In the second place, as regards the substance of the requirement to apply a 12.5% cap, the Court recalls that, under the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, the SRB is required to ensure that the 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, as provided for in Article 69(1) of Regulation No 806/2014.
43      In that regard, the Court notes that, as is confirmed by the travaux préparatoires for Regulation No 806/2014, Article 69(1) of that regulation is based on a dynamic approach to the final target level, in the sense that the final target level must be determined in the light of the amount of the covered deposits at the end of the initial period. In point 4.3.2 of the explanatory memorandum to proposal COM(2013) 520 final of 10 July 2013, which led to the adoption of that regulation, the Commission explained that the final target level would remain dynamic and that it would increase if the banking sector grows.
44      The need to take account of changes in the amount of covered deposits is explained, in addition, by the objective of collecting ex ante contributions, which is, inter alia, 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 turn, according to recital 12 of that regulation, the objective of the SRM is, inter alia, to increase the stability of institutions in participating Member States and to prevent the spill-over of any crises into non-participating Member States.
45      In that regard, it is apparent from point 4.3.2 of the explanatory memorandum for proposal COM(2013) 520 final that the more the banking sector grows over time, the greater the financial resources that must be made available to the SRF. An estimate of that size thus makes it possible to predict the amount of the financial means that should be provided to the SRF so that it can be used, in the event of a crisis affecting the banking sector, to finance resolution tools and thus ensure their effective application, in accordance with Article 76(1) of Regulation No 806/2014, read in the light of recital 101 of that regulation.
46      In the context of Article 69(1) of Regulation No 806/2014, the EU legislature opted for an approach whereby the amount of covered deposits is used to estimate the size of the banking sector and thus to calculate the financial resources that must be made available to the SRF. From that perspective, any increase in the amount of covered deposits between the beginning and the end of the initial period reflects an increase in the size of the banking sector, which entails an increase in the financial resources required by the SRF by the end of that period.
47      It follows from the foregoing that the amount of the final target level, to which the 12.5% cap applies, must be determined in the light of the amount of covered deposits as it will be at the end of the initial period, it being understood that that amount cannot be known with certainty until the end of that period.
48      That said, in so far as, pursuant to Articles 69 and 70 of Regulation No 806/2014, the calculation of ex ante contributions is an annual exercise based on the definition of a final target level that must be reached at the end of the initial period, then of an annual target level to be apportioned 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), it is for the SRB, in respect of each contribution period, to make as precise an estimate as possible of the final target level in the light of the data available at the time of that estimate (‘the forecast final target level’).
49      It follows that, contrary to what is argued by the SRB, it is the forecast final target level that is decisive for the application of the 12.5% cap.
50      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.
51      That conclusion is not called into question by the line of argument of the SRB, the Parliament and the Council that the requirement to apply a 12.5% cap should either be disregarded or be interpreted ‘flexibly’. In that regard, the SRB argued, in essence, that it would be impossible for it to comply with both that cap and 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. In particular, the SRB inferred from this – supported in that regard by the Parliament and the Council – that the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 had to be interpreted in the light of Article 69(2) of that regulation, according to which ex ante contributions must be spread out ‘in time as evenly as possible’, which, in their view, permits a flexible interpretation of the requirement to apply a 12.5% cap.
52      In that regard, the Court holds 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.
53      It is settled case-law that an interpretation of a provision of EU law in the light of its context and purpose cannot have the result of depriving the clear and precise wording of that provision of all effectiveness, otherwise it would be contra legem and, as a result, incompatible with the requirements of the principle of legal certainty. Thus, where the meaning of a provision of EU law is absolutely plain from its very wording, the EU judicature cannot depart from that interpretation (see, to that effect, judgments of 13 July 2023, Mensing, C‑180/22, EU:C:2023:565, paragraph 34 and the case-law cited, and of 16 June 2021, Lucaccioni v Commission, T‑316/19, EU:T:2021:367, paragraph 118 and the case-law cited).
54      That is all the more so in the case of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, since 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). 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.
55      In those circumstances, it cannot be argued that the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 may be interpreted, in the light of the requirement laid down in Article 69(1) of that regulation, as meaning that the 12.5% cap could be disregarded or is merely indicative, with the result that it was open to the SRB to depart from it with the objective of achieving the final target level.
56      Similarly, Article 69(2) of Regulation No 806/2014, which provides, inter alia, that ex ante contributions must be spread out in time as evenly as possible until the final target level is reached, does not allow the 12.5% cap provided for in the first and fourth subparagraphs of Article 70(2) of that regulation to be interpreted as meaning that it is not binding or is merely indicative. Aside from the fact that such an interpretation would run counter to the clear and precise wording of the first and fourth subparagraphs of Article 70(2) of that regulation, first, the Court points out that, by expressly providing in Article 69(2) of that regulation that the ex ante contributions must be ‘calculated in accordance with Article 70’, the EU legislature itself envisaged the simultaneous application of both the 12.5% cap and the requirement to spread out in time those ex ante contributions as evenly as possible. Second, Article 69(2) of Regulation No 806/2014 is intended to spread out in time and as evenly as possible the financial burden on institutions, in order to avoid significant variations in that burden from one year to the next and thus to take account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of those institutions. By contrast, the first and fourth subparagraphs of Article 70(2) of that regulation seek to cap, for each year taken individually, the amount of the contributions due by all of the institutions authorised in the territories of all of the participating Member States. It follows that Article 69(2) and the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 pursue different, albeit complementary, aims. Therefore, the argument that Article 69(2) of that regulation requires a ‘flexible’ interpretation of the requirement to apply a 12.5% cap laid down in the first and fourth subparagraphs of Article 70(2) of that regulation must be rejected.
57      That conclusion is all the more appropriate since, contrary to what is claimed by the SRB, it is not impossible to reconcile the requirements referred to in paragraph 51 above.
58      It is true that, on account of the duration of the initial period and the risk of unforeseeable events occurring during that period, the estimate of the final target level is based on a prospective analysis of the evolution of the amount of covered deposits, an assessment which involves uncertainties.
59      However, the taking into account of such uncertainties is inherent in the tasks entrusted to the SRB. In that regard, the Court recalls that the SRB is responsible for ensuring the effective and consistent functioning of the SRM, in accordance with Article 7(1) of Regulation No 806/2014. To that end, it is for the SRB to ensure that the final target level is reached by the end of the initial period while respecting the 12.5% cap. The prospective nature of its estimate of the final target level means that it must estimate with sufficient care the evolution of the amount of covered deposits throughout the initial period in order to have sufficient funds to reconcile compliance with the 12.5% cap with the requirements to which reference is made in paragraph 51 above.
60      That is particularly the case given that, in accordance with Article 69(1) of Regulation No 806/2014, the final target level must reach ‘at least’ 1% of covered deposits by the end of the initial period. That provision does not therefore require the SRB to ensure that that target level corresponds to exactly 1% of the amount of covered deposits, but allows it to estimate, on the basis of conservative projections, the evolution of the amount of covered deposits in such a way that that target level is reached, while observing the 12.5% cap.
61      Moreover, the Court notes that, when drafting Delegated Regulation 2017/747, the Commission also envisaged that the 12.5% cap and the requirements arising from Article 69(1) and (2) of Regulation No 806/2014, to which reference is made in paragraph 51 above, would apply simultaneously. Indeed, Delegated Regulation 2017/747, the purpose of which, according to Article 1(1) thereof, inter alia, is to set out the criteria for the spreading out in time of the contributions to the SRF pursuant to Article 69(2) of Regulation No 806/2014, provides, in Article 3(4) thereof, that, during any given contribution period, the level of annual contributions may be relatively lower than the average of the annual contributions ‘calculated in accordance with [Article] 69(1) and [Article] 70(2) of Regulation … No 806/2014’ only where the SRB verifies that, on the basis of conservative projections, the final target level can be reached at the end of the initial period.
62      In the third place, it is therefore necessary to examine whether, in the contested decision, the SRB complied with the requirement to apply a 12.5% cap, as laid down in the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014.
63      In that regard, it is apparent, first of all, from recitals 45 and 60 of the contested decision that the SRB estimated the forecast final target level at EUR 79 987 450 580.
64      Thus, 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 EUR 9 998 431 322.50.
65      As is apparent from recital 62 of the contested decision, in conjunction with point 124 of Annex III to that decision and with the column headed ‘2022 Final Amount Notified (iii)’ in the table on the first page of Annex II to that decision, the SRB determined the annual target level for the 2022 contribution period to be EUR 14 253 573 821.46, an amount which was reduced to EUR 13 675 366 302.18 after, inter alia, deductions made under Article 8(2) of Implementing Regulation 2015/81.
66      Consequently, the Court finds that – as, moreover, the SRB acknowledged at the hearing – the contested decision 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.
67      It follows that the SRB infringed the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014 and that the first complaint of the third plea must therefore be upheld.
68      That error in law alone is such as to justify the annulment of the contested decision in so far as it concerns the applicant.
69      Accordingly, the contested decision must be annulled in so far as it concerns the applicant, without there being any need to examine the second complaint put forward in support of the third plea or the other pleas.
Limitation in time of the effects of the judgment
70      The SRB asks that, in the event that the contested decision is annulled in full or in part, the Court maintain the effects of that decision until it is replaced or, at least, for a period of six months from the date on which the judgment has become final, since such an annulment would have serious consequences for financial stability in the banking union.
71      The applicant submits that no reasons have been provided for a limitation in time of the effects of any annulment of the contested decision. The amounts which the SRB would be required to repay to the institutions are much lower than the financial resources available in the SRF, such that the integrity of the SRF would not be affected. Furthermore, since the SRB erred in law, there are no grounds for it retaining the funds which could be used by institutions in the course of their activities.
72      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).
73      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).
74      In the present case, although the contested decision was adopted in breach of the first and fourth subparagraphs of Article 70(2) of Regulation No 806/2014, with the result that it was able to set the applicant’s ex ante contribution at too high an amount, the Court has not, by contrast, been led, in the present proceedings, to find any error affecting the applicant’s obligation itself to pay an ex ante contribution for the 2022 contribution period.
75      In those circumstances, and as the Court of Justice held in the 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 177), to annul the contested decision without providing for its effects to be maintained could undermine the implementation 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), Regulation No 806/2014 and Delegated Regulation 2015/63, which form an integral part of the banking union, thereby contributing to the financial stability of the European Union as a whole. 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 other institutions, such as those which have brought a similar action, raising the same plea as the one upheld in the present action, even though those institutions remain in principle subject to the obligation to pay ex ante contributions, such a repayment would risk depriving the SRF of the financial means that may prove necessary to ensure the stability of the euro area and the financial stability of the European Union.
76      Consequently, the rejection of the request to maintain the effects of the contested decision would risk undermining the objective of financial stability and the objective of creating an economic and monetary union whose currency is the euro, as provided for in Article 3(4) TEU.
77      In those circumstances, the Court finds that it must 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 judgment, which must occur within a reasonable period that cannot exceed six months from the day on which the present judgment becomes final.
The request to reopen the oral part of the procedure concerning the limitation in time of the effects of the judgment
78      By document lodged at the Court Registry on 15 March 2024, the applicant requested that the oral part of the procedure be reopened. In that request, it states that it became aware, after the hearing had been held on 7 February 2024, of a speech by the President of the SRB of 13 February 2024 and a press release from the SRB of 15 February 2024, in which it is stated that, first, ex ante contributions would not be levied in 2024 and, second, on 31 December 2023, the amount of the financial means available in the SRF was EUR 78 billion, whereas the final target level, corresponding to 1% of the covered deposits, was EUR 75 billion. According to the applicant, the SRF therefore has a surplus of EUR 3 billion, which is relevant for any decision by the General Court as to whether it maintains the effects of the contested decision in the event that it annuls that decision. As regards the institutions which brought an action against that decision by raising a plea that corresponds to the first complaint of the third plea in the present appeal, that surplus would indeed make it possible to repay those institutions’ ex ante contributions without, in principle, the financial means available in the SRF falling below the final target level of EUR 75 billion.
79      Under Article 113(2)(c) of those rules of procedure, the Court may order the reopening of the oral part of the procedure where requested by a main party who is relying on facts which are of such a nature as to be a decisive factor for the decision of the Court but which that party was unable to put forward before the oral part of the procedure was closed.
80      In that regard, it is clear that the new fact relied on by the applicant cannot, in any event, have a decisive influence on the Court’s decision.
81      First, as the applicant itself acknowledges, the speech of the President of the SRB and the press release, referred to in paragraph 78 above, are irrelevant for the purposes of assessing the lawfulness of the contested decision and ruling on the form of order sought in the application. Second, those factors are also not decisive as regards maintaining the effects of the contested decision. It suffices to observe in that regard that the amount of the applicant’s ex ante contribution, combined with the amounts of the ex ante contributions of other institutions such as those that have brought a similar action by raising the same complaint as the one upheld in the present action, could, in any event, potentially exceed the amount of EUR 3 billion referred to by the applicant.
82      Accordingly, the applicant’s request that the oral part of the procedure be reopened must be rejected.
Costs
83      Under Article 134(1) of the Rules of Procedure of the General Court, 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.
84      In accordance with Article 138(1) of the Rules of Procedure, the Parliament and the Council are to bear their own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber, Extended Composition)
hereby:
1.      Annuls Decision SRB/ES/2022/18 of the Single Resolution Board (SRB) of 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRF) in so far as it concerns Nordea Kiinnitysluottopankki Oyj;
2.      Maintains the effects of Decision SRB/ES/2022/18, in so far as it concerns Nordea Kiinnitysluottopankki, until the SRB has taken the measures necessary to implement the present judgment, which must occur within a reasonable period that cannot exceed six months from the day on which the present judgment becomes final;
3.      Orders the SRB to bear its own costs and to pay those incurred by Nordea Kiinnitysluottopankki;
4.      Orders the European Parliament and the Council of the European Union to bear their own costs.
Kornezov
De Baere
Petrlík
Kecsmár
Kingston
Delivered in open court in Luxembourg on 23 October 2024.
T. Henze, Deputy Registrar
S. Papasavvas
Registrar
President
*      Language of the case: English.