62021TJ0383
JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)
20 December 2023 (
*1
)
(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 – Duty to state reasons – Principle of good administration – Principle of effective judicial protection – Plea of illegality – Limitation of the temporal effects of the judgment)
In Case T‑383/21,
La Banque postale, established in Paris (France), represented by A. Gosset-Grainville and M. Trabucchi, lawyers,
applicant,
v
Single Resolution Board (SRB), represented by J. Kerlin, C. De Falco and C. Flynn, acting as Agents, and by H.-G. Kamann, F. Louis, P. Gey and V. Del Pozo Espinosa de los Monteros, lawyers,
defendant,
supported by
European Parliament, represented by J. Etienne, O. Denkov and M. Menegatti, acting as Agents,
by
Council of the European Union, represented by E. d’Ursel, A. Westerhof Löfflerová and J. Bauerschmidt, acting as Agents,
and by
European Commission, represented by D. Triantafyllou, A. Nijenhuis 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 10 March 2023,
gives the following
Judgment
1
By its action under Article 263 TFEU, the applicant, La Banque postale, 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.
I. Background to the dispute
2
The applicant is a credit institution established in France.
3
By the contested decision, the SRB set, pursuant to Article 70(2) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1), the ex ante contributions to the Single Resolution Fund (SRF) (‘the ex ante contributions’) for 2021 (‘the 2021 contribution period’) of the institutions covered by Article 2 in conjunction with Article 67(4) of that regulation (‘the institutions’), including the applicant.
4
By assessment notice of 28 April 2021, the Autorité de contrôle prudentiel et de résolution (Authority for Prudential Supervision and Resolution, France; ‘the ACPR France’), 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 2021 contribution period, as set by the SRB.
II. 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 2021 contribution period; that process applies to all of the institutions.
7
Specifically, in Section 5 of that decision, the SRB set 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 No 806/2014 with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1) for the 2021 contribution period (‘the annual target level’).
8
The SRB explained that it had set that annual target level at one eighth of 1.35% of the average amount of covered deposits, calculated quarterly, of all of the institutions in 2020 (‘the average amount of covered deposits in 2020’), as that amount had been obtained from the data communicated by the deposit guarantee schemes pursuant to 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).
9
In Section 6 of the contested decision, the SRB described the method to be used to calculate the ex ante contributions for the 2021 contribution period. In that regard, it stated, in recital 59 of that decision, that, for that period, 13.33% of the ex ante contributions had been calculated on the ‘national base’, that is to say, on the basis of the data communicated by institutions authorised in the territory of the participating Member State concerned (‘the national base’), in accordance with Article 103 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), and in accordance with Article 4 of Delegated Regulation 2015/63. The remainder of the ex ante contributions (86.67%) was calculated on the ‘banking union base’, that is to say, on the basis of the data communicated by all of the institutions authorised in the territories of all of the Member States participating in the Single Resolution Mechanism (SRM) (‘the union base’ and ‘the participating Member States’) in accordance with Articles 69 and 70 of Regulation No 806/2014 and Article 4 of Implementing Regulation 2015/81.
10
Next, the SRB calculated the ex ante contributions of the institutions, such as the applicant, in accordance with the following main stages.
11
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, with respect to the total liabilities, excluding own funds and covered deposits, 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 total liabilities of the institution which are to be taken into account in order to determine that contribution.
12
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. It assessed that risk profile on the basis of the four risk pillars set out in Article 6 of Delegated Regulation 2015/63, which are composed of risk indicators. With a view to classifying the institutions according to their level of risk, the SRB began by establishing – for each risk indicator applied for the 2021 contribution period – bins into which the institutions were grouped, in accordance with point 3 of ‘Step 2’ in Annex I to that delegated regulation. Institutions belonging to the same bin were assigned a common value for the particular risk indicator, referred to as the ‘discretized value’. Combining the discretized values for each risk indicator, the SRB calculated the ‘risk adjusting multiplier’ of the institution concerned). By multiplying the basic annual contribution of that institution by its risk adjusting multiplier, the SRB obtained the ‘risk-adjusted basic annual contribution’ of the institution.
13
Next, the SRB added together the risk-adjusted basic annual contributions to get a ‘common denominator’ which was used to calculate the share of the annual target level each institution had to pay.
14
Finally, the SRB calculated the ex ante contribution of each institution by distributing the annual target level among all of the institutions on the basis of the ratio between the risk-adjusted basic annual contribution, on the one hand, and the common denominator, on the other hand.
15
Annex I to the contested decision contains an individual sheet for each institution subject to the payment of the ex ante contributions, including the applicant, which includes the results of the calculation of the ex ante contribution of each of those institutions (‘the individual sheet’). Each of those sheets sets out the amount of the basic annual contribution of the institution concerned as well as the value of its risk adjusting multiplier, both on the union base and on the national base, stating for each risk indicator the number of the bin to which that institution was assigned. In addition, the individual sheet sets out data used to calculate the ex ante contributions of all of the institutions concerned, which the SRB determined by adding together or combining the individual data of all of those institutions. Finally, that sheet includes the data reported by the institution concerned in the reporting form and used in the calculation of its ex ante contribution.
16
Annex II to the contested decision contains statistical data relating to the calculation of the ex ante contributions for each participating Member State, in summary and collective form. That annex states, inter alia, the total amount of the ex ante contributions to be paid by the institutions concerned for each of those Member States. Furthermore, the annex lists, for each risk indicator, the number of bins, the number of institutions belonging to each of the bins and the minimum and maximum values of those bins. In the case of the bins relating to the national base, those values are reduced or increased by a random amount for reasons of confidentiality, with the original distribution between the institutions being maintained.
17
Annex III to the contested decision, entitled ‘Evaluation of the submissions made in the consultation on the 2021 ex ante contributions to the Single Resolution Fund’, examines the observations submitted by the institutions over the course of the consultation procedure conducted by the SRB between 5 and 19 March 2021 with a view to the adoption of the contested decision.
III. Forms of order sought
18
The applicant claims that the Court should:
–
annul the contested decision in so far as that decision concerns it;
–
order the SRB to pay the costs.
19
The SRB contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs;
–
in the alternative, if the Court were to uphold the sixth, seventh or eighth plea of the action, annul only Section 11 of the contested decision concerning the irrevocable payment commitments (‘the IPCs’);
–
in the alternative, if the contested decision is annulled, 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.
20
The European Parliament contends that the Court should:
–
dismiss the action in so far as it is based on the pleas of illegality in respect of Regulation No 806/2014;
–
order the applicant to pay the costs.
21
The Council of the European Union contends that the Court should dismiss the action.
22
The European Commission contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
IV. Law
23
In support of its action, the applicant raises eight pleas in law, alleging, first, breach of the principle of equal treatment; second, breach of the principle of proportionality; third, breach of the principle of legal certainty; fourth, breach of the principle of good administration; fifth, breach of the principle of effective judicial protection; sixth, breach of the duty to state reasons for the contested decision as regards the use of IPCs; seventh, manifest errors of assessment by the SRB as regards the limitation of the use of IPCs to 15% of the amount of the ex ante contributions and the limitation of the collateral to cash only; and, eighth, an error in law as regards the limitation of the use of IPCs.
24
At the hearing, the applicant stated that it was withdrawing the sixth plea.
A. The pleas of inadmissibility
25
The first five pleas in law contain pleas of illegality in respect of a number of provisions of Regulation No 806/2014, Delegated Regulation 2015/63 and Implementing Regulation 2015/81.
26
In the Commission’s view, the pleas of illegality in support of the first three pleas in law must be dismissed as inadmissible.
27
The SRB has not raised any plea of inadmissibility in the present case.
28
Since the Commission, as an intervening party, is not entitled to raise pleas of inadmissibility which were not raised by the party it is supporting (see, to that effect and by analogy, judgments of 24 March 1993, CIRFS and Others v Commission, C‑313/90, EU:C:1993:111, paragraphs 20 to 22; of 17 June 1998, Svenska Journalistförbundet v Council, T‑174/95, EU:T:1998:127, paragraphs 77 and 78; and of 7 March 2013, Cindu Chemicals and Others v ECHA, T‑95/10, EU:T:2013:108, paragraph 32), which is not the case here, the pleas of inadmissibility raised by the Commission are inadmissible.
29
However, it is necessary to examine ex officio the admissibility of the pleas of illegality raised by the applicant, since those pleas of inadmissibility involve matters of public policy.
30
According to those pleas, the Commission takes the view that the applicant fails to demonstrate that there is a link between the contested decision and the provisions at issue, and that the applicant has no interest in obtaining a declaration that the provisions at issue are unlawful.
31
In that regard, first, it follows from case-law that a plea of illegality raised indirectly under Article 277 TFEU, when challenging in the main proceedings the legality of another measure, is admissible only if there is a link between the contested measure and the provision forming the subject matter of the plea (judgments of 30 April 2019, Wattiau v Parliament, T‑737/17, EU:T:2019:273, paragraph 56, and of 16 June 2021, Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission, T‑126/19, EU:T:2021:360, paragraph 33).
32
In the present case, it follows from the contested decision that all of the provisions which the applicant claims are unlawful are applied in that decision, either because those provisions form the basis of the ex ante contributions claimed from the applicant, as is the case with Article 70(1) and (2) of Regulation No 806/2014, or because they determine the parameters for the calculation of those contributions, as is the case with Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63. Accordingly, contrary to what the Commission claims, there is a direct legal link between the contested decision and the provisions at issue.
33
Second, it is true that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may, therefore, through its outcome, procure an advantage to the party which brought it. An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation (see judgment of 5 May 2021, Pharmaceutical Works Polpharma v EMA, T‑611/18, EU:T:2021:241, paragraphs 139 and 141 and the case-law cited).
34
Nevertheless, in the present case, all of the provisions to which the pleas of illegality relate either form the basis of the ex ante contributions claimed from the applicant in respect of 2021 or determine the parameters of the calculation of those contributions, and therefore the applicant has a vested and current interest in obtaining the finding that those provisions are unlawful. If the applicant were to be successful, such contributions would lack any legal basis. Accordingly, contrary to what the Commission claims, the applicant has an interest in obtaining a declaration that those provisions are unlawful.
35
The pleas of inadmissibility raised by the Commission must therefore be dismissed.
B. The pleas of illegality in respect of Regulation No 806/2014, Delegated Regulation 2015/63 and Implementing Regulation 2015/81
1.
The first plea, alleging breach of the principle of equal treatment
36
By its first plea, the applicant submits that Article 70(1) and points (a) and (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014, as well as Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, breach the principle of equal treatment. The line of argument put forward in support of that plea is divided into four parts, based, first, on the failure to take account of the differences between the situations of the institutions in the banking union; second, on the unjustified exclusion of covered deposits from the basis for calculating the basic annual contribution; third, on the unjustified non-deduction of the eligible liabilities; and, fourth, on the inappropriateness of the criteria for adjustment of the basic annual contribution in proportion to the risk profile.
37
As a preliminary point, it must be pointed out that none of those parts can be understood as meaning that the applicant claims, in reality, that the abovementioned provisions are vitiated by an error of assessment on the grounds set out in paragraph 36 above. At the hearing, in response to a question put by the Court, the applicant in fact confirmed that, by the first plea taken as a whole, it claimed merely breach of the principle of equal treatment, and not an error of assessment.
38
Furthermore, as regards breach of the principle of equal treatment, it must be recalled that that principle, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 95).
39
Since it is the applicant who is relying on a breach of the principle of equal treatment, it falls to it to identify precisely which comparable situations it considers have been treated differently or which different situations it considers have been treated identically (judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 311).
40
According to settled case-law, the comparable nature of different situations is assessed in the light of all the elements that characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the act making the distinction in question. In addition, the principles and objectives of the field to which the act relates must also be taken into consideration (see judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 99 and the case-law cited).
41
With regard to the subject matter and purpose of Regulation No 806/2014 and of Delegated Regulation 2015/63, it must be recalled that, just like Directive 2014/59, those acts fall within the scope of the SRM, the establishment of which is intended, in accordance with recital 12 of Regulation No 806/2014, to ensure a neutral approach in dealing with failing institutions, to increase the stability of the institutions of the participating Member States and to prevent the spill-over of crises into Member States which do not participate in that mechanism, with a view to facilitating the functioning of the internal market as a whole.
42
In order to ensure the financing of the SRM’s activities, Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63 introduced the ex ante contributions, the specific nature of which consists, as is apparent from recitals 105 to 107 of that directive and from recital 41 of that regulation, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, and in encouraging the institutions to adopt less risky methods of operation (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113).
43
It is in the light of those considerations that it is necessary to examine the legality of the provisions which the applicant pleads are unlawful.
44
Those provisions include, first and foremost, Article 70(1) and points (a) and (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014, which cover the definition of the annual target level to be shared between the institutions authorised in the territories of all of the participating Member States.
45
Furthermore, the applicant contests the legality of Articles 6 and 7 of Delegated Regulation 2015/63, which specify the criteria for the adjustment of the ex ante contributions to the institutions’ risk profile, as laid down in Article 103(7) of Directive 2014/59. More specifically, Article 6 of that delegated regulation lists the risk pillars and risk indicators which the SRB must take into account to assess the risk profile of the institutions, whereas Article 7 of that delegated regulation specifies the relative weight of each risk pillar and risk indicator to be applied by the SRB when assessing the risk profile of each institution.
46
Finally, the applicant pleads the illegality of Annex I to Delegated Regulation 2015/63, which lays down in detail the different steps of the method of calculation used by the SRB to determine the amount of the ex ante contributions and sets out the mathematical formulae to be applied by the SRB.
(a)
The first and second parts, based on the failure to take account of the differences between the situations of the institutions in the banking union and on the unjustified exclusion of covered deposits from the basis for calculating the basic annual contribution
47
The first part of the first plea is divided into two complaints, based, first, on the failure to take account of the differences between the situations of the banking sectors of the participating Member States and, second, on the inconsistency connected with the failure to take into consideration the assessment criteria used in the context of the Single Supervisory Mechanism (SSM).
48
By the second part of the first plea, the applicant submits, in essence, that point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014 breaches the principle of equal treatment because it provides for the exclusion of covered deposits from the liabilities which are taken into account to calculate the basic annual contribution.
49
The SRB, the Parliament, the Council and the Commission dispute that line of argument.
(1) The first complaint of the first part, based on the failure to take account of the differences between the situations of the banking sectors of the participating Member States, and the second part, relating to the unjustified exclusion of covered deposits from the basis for calculating the basic annual contribution
50
In the first place, in the context of the first complaint of the first part, the applicant submits that the distribution of the ex ante contributions between the different institutions in the banking union, which is conducted on the basis of Article 70(1) and (2) of Regulation No 806/2014 and of Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, is applied on the basis of criteria which are calculated according to rules which disregard the differences between the situations of the banking sectors of the participating Member States. Specifically, those provisions failed to take account of the specific characteristics and the unique profile of the institutions which have their registered office in France (‘the French institutions’), such as the applicant. Thus, although those institutions are in different situations from institutions which have their registered office in other participating Member States (‘the institutions of the other Member States’), they are treated identically as far as concerns the calculation of the amount of those contributions.
51
In that regard, the applicant claims that the French institutions differ from the institutions of the other Member States because, although the total amount of liabilities held by them is generally significant, the amount of their covered deposits is relatively low.
52
The applicant submits that it draws attention to that characteristic with a view to claiming that it itself suffers from a breach of the principle of equal treatment. That breach derives from the fact that the small amount of its covered deposits does not enable it to reduce its basic annual contribution and therefore increases ‘artificially’ the relative weight of that contribution in the calculation of its overall ex ante contribution.
53
The applicant’s argument must thus be understood as meaning that it submits, in essence, that it is placed at a disadvantage as compared with institutions with a high amount of covered deposits, which are, inter alia, established in the other Member States, because those institutions are able to benefit from a greater reduction in the liabilities used for the purposes of calculating the ex ante contribution, and that, in reality, it should therefore be being treated differently vis-à-vis those other institutions.
54
This argument overlaps with those raised in the context of the second part of the first plea, alleging the unjustified exclusion of covered deposits from the basis for calculating the basic annual contribution. The arguments should therefore be examined jointly.
55
In that regard, first of all, it must be observed that the exclusion of the covered deposits from the basis for calculating the basic annual contribution, as provided for in point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, applies equally to all of the institutions falling within its scope, including, therefore, the French institutions, such as the applicant, and the institutions of the other Member States, regardless of the amount of their covered deposits.
56
Turning, next, to the question of whether the French institutions, including the applicant, are in a comparable situation to that of the institutions of the other Member States, for the purposes of applying that exclusion, it must be recalled that Directive 2014/59 and Regulation No 806/2014 seek, 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 stated in paragraph 42 above. In return for their obligations to pay ex ante contributions, all of the institutions benefit from those contributions through the stability of the financial system guaranteed by the SRF. That benefit exists regardless of the amount of covered deposits held by the institutions and of the extent to which they can exclude that amount from the basis for calculating their basic annual contribution.
57
In those circumstances, the mere fact that the institutions hold different amounts of covered deposits does not mean that they are placed in different situations in the light of the subject matter and purpose of Directive 2014/59 and Regulation No 806/2014.
58
Finally, the fact that the application of those criteria results in different amounts of ex ante contributions for the applicant and for the other institutions is simply the result of the fact that they hold different amounts of covered deposits.
59
Even assuming that the French institutions, including the applicant, hold a lower amount of covered deposits than that held by the institutions of the other Member States, that fact is not enough to establish a breach of the principle of equal treatment.
60
In that regard, it follows from case-law that the adoption, by the EU legislature, of legislation within an particular field of activity may affect certain traders in different ways because of their individual situation or the national rules to which they are subject; that fact cannot be regarded as a breach of the principle of equal treatment if that legislation is based on objective criteria which are adapted to meet the aims pursued by the legislation (see, to that effect and by analogy, judgment of 19 September 2013, Panellinios Syndesmos Viomichanion Metapoiisis Kapnou, C‑373/11, EU:C:2013:567, paragraph 34 and the case-law cited).
61
In the present case, first, it must be held that the exclusion of covered deposits from the basis for calculating the basic annual contribution is based on objective criteria. In that regard, it follows from Article 3(1)(11) of Regulation No 806/2014, which refers to Article 2(1)(5) of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ 2014 L 173, p. 149), that the concept of ‘covered deposits’, within the meaning of Regulation No 806/2014, corresponds, for the purpose of the exclusion of those deposits from the basis for calculating the basic annual contribution, to the concept of ‘covered deposits’ in the context of the deposit guarantee scheme (DGS). In addition, the latter concept is defined on the basis of the criteria laid down in Article 2(3) and (4) and Article 6 of Directive 2014/49, which are objective.
62
Second, it must be observed that that exclusion is based on criteria which are adapted to the aims pursued by point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014. As the SRB has explained, the purpose of the exclusion is to prevent the covered deposits from being counted twice. In that regard, it must be borne in mind that the institutions are required, by virtue of those deposits, to pay contributions to the DGSs by which they are covered, in accordance with Directive 2014/49. If, as the applicant demands, the covered deposits were not excluded from the basis for calculating the ex ante contributions, the institutions would be required, on account of those same covered deposits, to pay the ex ante contributions alongside the contributions for the financing of the DGSs.
63
In those circumstances, the choice made by the EU legislature in point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014 to exclude the covered deposits from the total liabilities of the institutions to be taken into account in order to calculate the basic annual contribution may be regarded as being based on objective criteria which are adapted to meet the aims pursued by that provision.
64
The applicant’s first argument raised in support of the first complaint of the first part of the first plea and the second part of that plea must therefore be dismissed.
65
In the second place, the applicant claims that, as a result of the method of calculation provided for in the provisions referred to in paragraph 50 above, the ex ante contributions of the French institutions are markedly higher than those of the institutions of the other Member States and that they have increased significantly since 2016.
66
In that regard, first of all, the applicant does not dispute that the criteria for calculation of those ex ante contributions apply in the same way to the French institutions, of which it is one, and to the institutions of the other Member States.
67
Next, the applicant does not explain the impact of the situation set out in paragraph 65 above on the examination of whether it is in a different situation from the institutions of the other Member States.
68
Finally, in any event, the high amount of the ex ante contributions of the French institutions can be explained by several factors which the applicant has not contested.
69
First, the SRB explained, without being contradicted, that the French institutions generally accounted for a greater share of the total liabilities than the institutions of the other Member States, equating to more than one third of those liabilities over the relevant period for the calculation of the ex ante contributions.
70
Such a fact has a significant impact on the amount of the basic annual contributions of the institutions concerned and, as a result, on the amount of their ex ante contributions. Under Article 103(2) of Directive 2014/59 and Article 70(1) of Regulation No 806/2014, the basic annual contribution of each institution is pro rata to the amount of that institution’s liabilities, excluding own funds and covered deposits, with respect to the aggregate liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. Applying those provisions thus means that the French institutions’ annual contributions are often higher than those of the institutions of the other Member States.
71
However, the applicant has not challenged the lawfulness of Article 103(2) of Directive 2014/59 or of Article 70(1) of Regulation No 806/2014, under which the EU legislature decided to base the calculation of the ex ante contributions on the amount of the institutions’ liabilities.
72
Second, nor has the applicant contested the SRB’s claim that the size of the French institutions’ balance sheets and the volume of their liabilities had increased between 2016 and 2021, which had led to an increase in the basic annual contribution of those institutions and, therefore, in the ex ante contributions which the applicant was required to pay.
73
Third, the SRB explained, without being contradicted, that the increase in the ex ante contributions of the French institutions had been accelerated by the phasing-in mechanism of the calculation of those contributions, as provided for in Article 8(1) of Implementing Regulation 2015/81 (‘the phasing-in mechanism’). Under that mechanism, which applies moreover to all of the institutions concerned, an increasingly large share of the institutions’ ex ante contributions is calculated on the union base, rather than on the national base, with that share standing at 86.67% for the calculation of the ex ante contributions for the 2021 contribution period.
74
In that regard, the SRB explained that that fact meant that the risk profile of the French institutions was increasingly measured by reference to that of the institutions of the other Member States. Thus, in view of the French institutions’ share of the total liabilities as compared with the total liabilities of the institutions of the other Member States, as stated in paragraph 69 above, the phasing-in mechanism explains – according to the same uncontested explanations provided by the SRB – why the amount of the ex ante contributions of the French institutions, including the applicant, increased to a greater extent between 2016 and 2021 than that of the institutions of the other Member States.
75
Accordingly, the increase in the ex ante contribution of the French institutions, such as the applicant, is explained by a series of objective factors, including the increasingly high amount of their liabilities, and not by unequal treatment to which they were subject.
76
In those circumstances, the applicant has not established that the provisions referred to in paragraph 50 above breach the principle of equal treatment.
77
In the third place, the applicant’s argument that, in essence, the phasing-in mechanism means that account is not taken of the characteristics specific to each banking sector and that a distortion is created between the banking sectors to the detriment of the French sector must also fail.
78
That argument seeks to call into question the very existence of the phasing-in mechanism, even though the applicant does not plead the illegality of the provision which lays down that mechanism, that is to say, Article 8(1) of Implementing Regulation 2015/81.
79
In any event, that provision concerns all of the institutions, including the applicant. The phasing-in mechanism therefore applies in the same way to the French institutions, including the applicant, and to the institutions of the other Member States. In addition, if the applicant’s criticism were to be understood as meaning that the applicant claims that the French institutions are not in a comparable situation to the institutions of the other Member States in connection with the phasing-in mechanism, it must be observed that the applicant has not presented to the Court any specific evidence that shows that the former institutions are actually in a different situation from the latter institutions with regard to that mechanism.
80
In the fourth place, the applicant submits that, in addition to the fact that it does not present the same risk as the institutions of the other Member States, it is unlikely to be able to benefit from the SRF, in the light of the minimum requirement for own funds and eligible liabilities (‘the MREL’) to which it is subject and of the need to deploy the bail-in tool on a significant scale and before any intervention from the SRF.
81
First of all, it must be recalled that, in accordance with Article 3(1)(40) of Regulation No 806/2014, own funds correspond to the resources made available to an institution by its shareholders, or by other investors, as well as the profits which it has made and which have not been distributed.
82
Next, under Article 3(49) of Regulation No 806/2014, ‘eligible liabilities’ are liabilities and capital instruments that do not qualify as capital instruments falling into certain tiers and that are not excluded from the scope of the bail-in tool.
83
In addition, points (a) to (f) of the first subparagraph of Article 12(16) of Regulation No 806/2014 provide that an eligible liability issued to comply with the MREL within the meaning of paragraph 1 of that same provision must be an instrument that is issued and fully paid up, that it must not be owed to, secured by or guaranteed by the institution itself, that the purchase of the instrument must not have been funded either directly or indirectly by the institution, that the liability has a remaining maturity of at least one year, and that the liability does not arise from a derivative or from a deposit which benefits from preference in the national insolvency hierarchy.
84
Finally, it must be recalled that, as is apparent from recital 73 and Article 27 of Regulation No 806/2014, the bail-in tool minimises the costs of the resolution of a failing entity borne by the taxpayer by ensuring that shareholders and creditors of the failing entity suffer appropriate losses and bear an appropriate part of the costs arising from the failure of the entity. Similarly, it follows from recital 83 of Regulation No 806/2014 that, to ensure that the bail-in tool is effective, Article 12 of that regulation provides that the institutions must hold sufficient amounts of own funds and eligible liabilities to absorb losses and recapitalise the failing institutions.
85
That said, the applicant does not dispute that Regulation No 806/2014 and Delegated Regulation 2015/63 treat it in the same way as the other institutions concerned as regards the account taken of the MREL-related requirements and of the deployment of the bail-in tool.
86
If, in those circumstances, the applicant’s line of argument were to be understood as meaning that it submits, in reality, that it was placed at a disadvantage because Regulation No 806/2014 and Delegated Regulation 2015/63 did not take sufficient account of the MREL-related requirements or of the deployment of the bail-in tool for the purposes of the calculation of the amount of the ex ante contributions, the following should be noted.
87
First of all, the applicant has not presented to the Court any specific evidence intended to challenge the SRB’s finding that institutions with significant liabilities, such as the applicant itself, are the most able to benefit from the resolution mechanisms laid down by Regulation No 806/2014, in spite of the MREL-related requirements or other prudential requirements to which they are subject. On this point, recital 5 of Delegated Regulation 2015/63 states, moreover, that the larger an institution is, the more likely it is that, in case of distress, the resolution authority would consider it in the public interest to resolve that institution and to make use of the SRF to ensure an effective application of the resolution tools.
88
Next, Article 6(2)(a) of Delegated Regulation 2015/63 provides for a risk indicator based, inter alia, on the MREL-related requirements, as part of the assessment of the institutions’ risk profile, for the purposes of calculating the amount of their ex ante contribution. However, the applicant has not claimed that the weight of that risk indicator was insufficient in the context of the calculation of the ex ante contributions.
89
In that regard, it must be added that, although Article 20 of Delegated Regulation 2015/63 does indeed allow the SRB not to take account, on a transitional basis, of that risk indicator when calculating the ex ante contribution, the applicant has not however contested the validity of that provision.
90
Finally, it follows from Articles 22 and 27 of Regulation No 806/2014 that, where a resolution is adopted pursuant to that regulation, the bail-in tool is applicable, equally, to all of the institutions before use is made of the SRF. In addition, the option of having recourse to the bail-in tool does not preclude the potential use of the SRF. In those circumstances, the applicant has not shown that the French institutions were in a different situation from the institutions of the other Member States on account of their MREL or their ability to apply the bail-in tool.
91
In the fifth place, the applicant claims that, at the meeting of 9 December 2014, the Council drew up a political agreement that the ‘French and German contributions’ would be at the same level during the transitional period.
92
It is not, however, apparent from the minutes of that Council meeting, published on its website, that any such agreement was concluded.
93
The applicant’s argument must therefore be dismissed.
94
In the sixth place, the applicant considers that it has been subject to unequal treatment because it was unable to benefit from the scheme for the calculation of ex ante contributions applicable to small and medium-sized institutions.
95
Article 10 of Delegated Regulation 2015/63 and Article 8(5) of Implementing Regulation 2015/81 provide for special schemes for small and medium-sized institutions, from which it is apparent, first, that the ex ante contributions of small institutions consist, in principle and save in special circumstances, of lump-sum amounts and, second, that the ex ante contributions of medium-sized institutions, are, in part, lump-sums and, in part, can be calculated according to the rules applicable to all of the other institutions. However, in view of the considerations set out in paragraph 87 above, large institutions with a very substantial amount of liabilities, such as the applicant, do not present, as regards the use of the SRF, a risk profile equivalent to or lower than that of small and medium-sized institutions. Those two categories are therefore not in a comparable situation for the purposes of the calculation of the ex ante contributions.
96
Accordingly, and in the light of all of the foregoing considerations, the applicant has failed to establish that Article 70(1) and points (a) and (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014, as well as Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, breached the principle of equal treatment.
97
Both the first complaint of the first part of the first plea and the second part of that plea must therefore be dismissed as unfounded.
(2) The second complaint of the first part, based on the inconsistency connected with the failure to take into consideration the assessment criteria used in the context of the SSM
98
The applicant submits that, in view of the continuity of and the strong links between the SSM and SRM, it is inconsistent to assess the risk presented by an institution in the context of the SRM without taking into consideration the assessment criteria used in the context of the SSM, which serve to ensure that the institutions most likely to use the SRF are those which contribute the most to its financing. The failure to take into consideration the assessment criteria used in the context of the SSM thus means that those institutions which are the least likely to make use of the SRF, in view, inter alia, of their recognised soundness within the SSM framework, are penalised.
99
In that regard, it must be observed, first of all, that, despite the requirements arising from the case-law cited in paragraphs 38 and 39 above, the applicant fails to explain with sufficient clarity how the alleged requirement of consistency with the criteria set out in paragraph 98 above is relevant for the purposes of establishing whether it has suffered from a breach of the principle of equal treatment.
100
If, in those circumstances, the applicant’s arguments must be understood as meaning that it claims, in reality, that is treated in the same way as other institutions which have a higher risk profile in the light of the assessment criteria used in the context of the SSM, even though, under those criteria, the likelihood of it making use of the SRF is lower, the following should be noted.
101
It is true, as is apparent from recitals 11, 13, 15 and 52 of Regulation No 806/2014, that there is a complementary relationship between the rules laid down in the context of the SRM and those adopted in the context of the SSM.
102
In particular, some of the assessment criteria used in the context of the SRM are similar to those used within the framework of the SSM, as provided for, inter alia, in Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).
103
Thus, several criteria in the legislation relating to the SRM use concepts which correspond to those of the legislation adopted in the context of the SSM and are even defined by an express reference to the latter. This is the case, in particular, as regards the concepts of ‘own funds’, ‘leverage ratio’ or ‘Common Equity Tier 1 Capital Ratio’, which are decisive factors for the purposes of applying the risk indicators listed in Article 6(2)(a) to (c) of Delegated Regulation 2015/63 and defined in Article 3 of that delegated regulation by reference to Regulation No 575/2013.
104
However, despite that complementary relationship, it must be stated that, as the SRB argues without being contradicted on this point, the objectives pursued by the legislation relating to the SRM as regards the resolution of institutions are different from those pursued by the legislation relating to the SSM as far as concerns supervisory requirements.
105
For instance, on the one hand, the purpose of the EU legislation on the resolution of institutions is intended, as regards the ex ante contributions, to ensure, as is made clear in paragraph 42 above, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions and to encourage the institutions to adopt less risky methods of operation.
106
On the other hand, the purpose of the EU legislation on prudential requirements is, according to recital 32 of Regulation No 575/2013, to encourage economically useful banking activities that serve the general interest and to discourage unsustainable financial speculation without real added value, as well as, pursuant to recital 42 of that regulation, to use better methods for risk measurement and management and also to use them for regulatory own funds purposes.
107
It follows, more specifically, that risk assessment when applying the legislation on the SRM and risk assessment in the context of the SSM satisfy different objectives. Thus, risk assessment in the context of pillar II of the SSM is carried out in order to meet the prudential requirements laid down by that mechanism with a view to ensuring that a given institution has sufficient own funds to face any specific risk which would not be covered by pillar I of the SSM; that corresponds to the transversal assessment of the risk posed by an institution. The outcome of such an assessment tends to determine the prudential requirements to which a given institution must be subject to prevent it from failing.
108
By contrast, risk assessment in the context of the adjustment of the basic annual contribution in proportion to the risk profile, as provided for in point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014 and in Articles 5 to 9 of Delegated Regulation 2015/63, is performed with a view to apportioning the ex ante contributions between all of the institutions concerned. The outcome of such an assessment tends to evaluate not only the risk of a given institution failing but also, in broader terms, the risk of the SRF being used by a failing institution.
109
In addition, the legislation on the SRM is predicated on a specific rationale, such that the risk profile of a given institution is also assessed having regard to the risk profile of all of the other institutions concerned.
110
In view of the specific subject matter and objectives of the legislation on the SSM and of that on the SRM, as well as the comparative rationale of the legislation of the SRM, there cannot be a breach of the principle of equal treatment simply because the legal framework governing the calculation of the ex ante contributions to the SRM does not reproduce, as such, the risk assessment criteria laid down in the context of the SSM.
111
The second complaint of the first part of the first plea must therefore be dismissed, as must that part in its entirety.
(b)
The third part, based on the unjustified non-deduction of the eligible liabilities satisfying the prudential requirements in respect of the MREL
112
The applicant submits that Article 70(1) and (2) of Regulation No 806/2014 as well as Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63 breach the principle of equal treatment because neither point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014 nor Article 5(1) of Delegated Regulation 2015/63 provides for the deduction of eligible liabilities from the liabilities taken into account in order to calculate the basic annual contribution. That legislation should have provided for such a deduction, since eligible liabilities constitute ‘quasi-own funds’ which are established to satisfy the prudential requirements in respect of the MREL and which serve to absorb losses and to establish the bail-in tool.
113
The SRB, the Parliament, the Council and the Commission challenge those arguments.
114
In the light of the explanations provided by the applicant at the hearing, it must be observed that the applicant submits, in essence, in the first place, that the breach of the principle of equal treatment derives from the fact that eligible liabilities are in a comparable situation to own funds, but are treated differently from those funds in so far as they are not excluded, pursuant to point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, from the liabilities which are taken into account in order to calculate the basic annual contribution.
115
In that regard, it must be recalled that, pursuant to point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, own funds are excluded from the liabilities that are taken into account in order to calculate the basic annual contribution. However, neither Article 70(1) of Regulation No 806/2014 nor Article 5(1) of Delegated Regulation 2015/63, which provide for the exclusion of certain liabilities from the calculation of the basic annual contribution, excluded eligible liabilities from those liabilities.
116
In the light of the case-law cited in paragraph 40 above, it is necessary to examine whether, in the light of the subject and purpose of Regulation No 806/2014, eligible liabilities are in a comparable situation to own fund, and should therefore be excluded from the calculation of the basic annual contribution.
117
On this point, it must be stated that, in accordance with Article 17(1) of Regulation No 806/2014 and Article 48(1) of Directive 2014/59, when applying the bail-in tool to an institution in the context of a resolution procedure, the national resolution authorities exercise write-down and conversion powers in relation to claims, first, in respect of own funds and then – ‘if, and only if,’ the own funds available have been unable to absorb the losses – in respect of eligible liabilities.
118
Furthermore, pursuant to Article 21(1) and (7a) of Regulation No 806/2014, the SRB exercises powers to write down or convert eligible liabilities, irrespective of any resolution measure, solely in respect of those eligible liabilities which satisfy the specific and restrictive conditions under Article 12g(2)(a) of that regulation, with the exception of the condition connected with the residual maturity of the liabilities set out in Article 72c(1) of Regulation No 575/2013. Those provisions make clear that the options available to the SRB of writing down and converting eligible liabilities, irrespective of any resolution measure, are restricted by specific and limiting conditions, contrary to what is the case in respect of own funds.
119
Lastly, Article 27(5) of Regulation No 806/2014 provides that, in exceptional circumstances, where the bail-in tool is applied, certain eligible liabilities may be excluded or partially excluded from the application of the write-down or conversion powers. No such possibility exists in relation to own funds.
120
Accordingly, contrary to the applicant’s claims, eligible liabilities do not have the same capacity to absorb the losses of institutions as own funds.
121
In those circumstances, it must be concluded that, despite the requirements arising from the case-law cited in paragraph 39 above, the applicant has not shown that eligible liabilities were in a comparable situation to own funds as regards their capacity to absorb losses and to establish the bail-in tool.
122
In the second place, the applicant criticises the fact that Article 5(1) of Delegated Regulation 2015/63 does not provide for the deduction of eligible liabilities from the liabilities serving as the basis of calculation to determine the basic annual contribution.
123
In that regard, it must be observed that nor does that provision state that own funds are excluded from the liabilities serving as the basis of calculation to determine the basic annual contribution, since that exclusion is provided for in point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014.
124
Furthermore, it follows from case-law that account taken of the principle of equal treatment cannot justify the deduction of eligible liabilities from the liabilities serving as the basis of calculation to determine the basic annual contribution, since Delegated Regulation 2015/63 distinguished situations that have significant features, directly linked to the risk inherent in the liabilities at issue (see, to that effect, judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 95).
125
It follows from the foregoing that the fact that provision was not made in Article 5(1) of Delegated Regulation 2015/63 for the deduction of eligible liabilities from the liabilities serving as the basis of calculation to determine the basic annual contribution does not constitute a breach of the principle of equal treatment.
126
The third part of the first plea must therefore be dismissed as unfounded.
(c)
The fourth part, based on the fact that the ex ante contributions are not representative of the risk actually borne on account of the criteria for calculation of the risk adjusting multiplier
127
By the fourth part of the first plea, the applicant claims that Article 70(1) and (2) of Regulation No 806/2014 as well as Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63 breach the principle of equal treatment because the ex ante contributions are not representative of the risk actually borne on account of the criteria for calculation of the risk adjusting multiplier. In that regard, the applicant puts forward three complaints based, first, on the failure to take account of the inherent overall risk profile of each institution; second, on the failure to assess the risk factors in the light of any requirement imposed by the supervisory authority in the context of the SSM; and, third, on the impossibility of taking overall account of each individual specific aspect of each institution.
(1) The first complaint, based on the failure to take account of the inherent overall risk profile of each institution
128
The applicant submits that the criteria laid down in ‘Article 6 et seq.’ of Delegated Regulation 2015/63 are based on the account taken of risk factors on an individual basis, and not on the account taken of the inherent overall risk profile of each institution.
129
The SRB, the Parliament, the Council and the Commission dispute those arguments.
130
First of all, it must be observed that, contrary to the case-law cited in paragraph 39 above, the applicant has not precisely identified the comparable situations which, in its view, have been treated differently or the different situations which it considers have been treated identically as regards the determination by the EU legislature of the criteria for adjustment of the basic annual contribution in proportion to the risk profile.
131
Next, it is established that the criteria for calculation of the risk adjusting multiplier, which result in the adjustment of the basic annual contribution in proportion to the criterion of risk, apply to all of the institutions concerned, such as the applicant, aside from those which are eligible to pay a lump-sum contribution pursuant to Article 10 of Delegated Regulation 2015/63 and those which are referred to in Article 11 of that delegated regulation. In those circumstances, the applicant is not treated differently in relation to those criteria.
132
In addition, the applicant has not claimed, let alone established, that the breach of the principle of equal treatment stems from the fact that it should not be treated in the same way as the other institutions as regards the application of the abovementioned criteria for calculation of the risk adjusting multiplier.
133
Furthermore, even assuming that the applicant’s criticism must be understood as meaning that it claims that it is not in a comparable situation to that of the other institutions and that it must be treated differently, it must be held that the applicant has not presented to the Court any specific evidence showing that it is in such a situation.
134
Finally, and in any event, the applicant’s line of argument is based on erroneous premisses. In the first place, the applicant wrongly claims that the criteria laid down in Delegated Regulation 2015/63 do not take account of the inherent overall risk profile of the institutions. Some of the four risk pillars set out in Article 6 of Delegated Regulation 2015/63, in particular the risk pillar relating to the importance of an institution to the stability of the financial system or economy, allow for such an overall analysis.
135
In the second place, the applicant’s criticisms vis-a-vis the criteria laid down in ‘Article 6 et seq.’ of Delegated Regulation 2015/63, namely that those provisions take account of the small regional banks, the effect of which is a negative bias against the large institutions because those regional banks hold a significant amount of covered deposits, unlike the large institutions, such as the applicant, whose activities are not however more risky, must also be dismissed.
136
First, it is apparent from paragraphs 51 to 63 above that the applicant has not established that the exclusion of covered deposits for the purposes of calculating the ex ante contribution breached the principle of equal treatment. Second, in view of the considerations set out in paragraphs 94 and 96 above, large institutions with a very large number of liabilities, such as the applicant, do not present a risk profile equivalent to or lower than that of small and medium-sized institutions. Those two categories are therefore not in a comparable situation for the purposes of the assessment to be made by the SBR in order to calculate the ex ante contributions.
137
The first complaint must therefore be dismissed as unfounded.
(2) The second complaint, based on the failure to assess the risk factors in the light of the requirements imposed by the supervisory authority in the context of the SSM
138
The applicant submits that the method of adjusting the basic annual contribution in proportion to the risk profile means that the risk factors are assessed regardless of any requirement imposed by the supervisory authority in the context of the SSM. However, according to the SSM criteria, the French institutions are the least risky in the banking union, even though they appear to be the most risky under the assessment criteria set out in Delegated Regulation 2015/63.
139
The SRB and the Council dispute that line of argument.
140
The first complaint and the second complaint of the first part of the first plea, which has been dismissed in paragraphs 100 to 110 above, essentially overlap.
141
This complaint must thus be dismissed on the same grounds.
(3) The third complaint, based on the impossibility of taking overall account of each individual specific aspect of each institution
142
The applicant takes the view that Article 70(1) and (2) of Regulation No 806/2014 and Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63 breach the principle of equal treatment because, in the context of a process applied uniformly to all of the institutions and with a view to distributing the amount corresponding to the annual target level equally and proportionally between them, it is not possible to take account of each individual specific aspect of each institution.
143
The SRB and the Council dispute that line of argument.
144
First of all, it must be observed that, by the wording of its complaint, the applicant itself acknowledges that the method of calculating the ex ante contributions criticised applies in the same way to all of the institutions.
145
Next, if the applicant’s criticism were to be understood as meaning that it claims that it is not in a comparable situation to the other institutions and that it should be treated differently, it must be observed that the applicant has not presented to the Court any specific evidence showing that it is in such a situation.
146
Lastly, and in any event, the applicant’s line of argument amounts to claiming, in actual fact, that the criteria for adjustment of the basic annual contribution in proportion to the risk profile are inappropriate. However, the applicant has not presented to the Court any detailed evidence specifically intended to demonstrate that those criteria are inappropriate, rather it has simply made unsubstantiated assertions.
147
The third complaint must therefore be dismissed, as must the fourth part of the first plea and that plea in its entirety.
2.
The second plea, alleging breach of the principle of proportionality
148
The applicant submits that Article 70(1) and points (a) and (b) of the second subparagraph of Article 70(2), as well as Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, lay down rules governing the calculation of ex ante contributions which breach the principle of proportionality.
149
The SRB, the Parliament, the Council and the Commission dispute that line of argument.
150
The principle of proportionality, which is one of the general principles of EU law, requires that acts of the EU institutions 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; where 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; see also, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 51).
151
With regard to the judicial review of the conditions set out in paragraph 150 above, it must be recalled that, when determining the method of calculating the ex ante contributions, the EU legislature has broad discretion, since it is asked to intervene in an area which entails political and economic choices on its part, and in which it is called upon to undertake complex assessments (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 117 and 118).
152
Similarly, in the context of a delegated power under Article 290 TFEU, the Commission enjoys, in the exercise of the powers conferred on it, broad discretion where it is called on, inter alia, to undertake complex assessments and evaluations (see, to that effect, judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 53 and the case-law cited).
153
The same applies, inter alia, in respect of Delegated Regulation 2015/63, by which the Commission specified the rules for adjustment of the ex ante contributions to the risk profile, pursuant to Article 103(7) of Directive 2014/59.
154
As is clear from the documents related to the adoption of Delegated Regulation 2015/63, in particular the document entitled ‘JRC technical work supporting Commission second level legislation on risk based contributions to the (single) resolution fund’ (‘the JRC technical study’) and ‘Commission Staff Working Document: estimates of the application of the proposed methodology for the calculation of contributions to resolution financing arrangements’, the drawing up of such rules entailed complex assessments and evaluations on the part of the Commission, since it had to examine the different factors in the light of which various types of risk were perceived in the banking and financial sectors.
155
In those circumstances, and in accordance with case-law (see, to this effect, judgments of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraphs 79, 96 and 97 and the case-law cited, and of 21 December 2022, Firearms United Network and Others v Commission, T‑187/21, not published, under appeal, EU:T:2022:848, paragraphs 122 and 123 and the case-law cited), the Court’s review of compliance with the principle of proportionality must be confined to examining whether the measures adopted by the EU legislature and by the Commission are manifestly inappropriate having regard to the objective pursued, whether they manifestly exceed the limits of what is necessary to achieve that objective, and whether they cause disadvantages that are manifestly disproportionate to that objective.
156
In that regard, the applicant raises, in essence, three arguments.
157
In the first place, it is necessary to examine the applicant’s argument that Article 70(1) and point (a) and (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014, as well as Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, breach the principle of proportionality because the calculation of the ex ante contribution of each institution depends on the situation of other institutions, without however the objective of a balanced distribution, in proportion to risk, being met. In particular, on account of that interdependence between the institutions, the French banking sector shoulders a disproportionate burden.
158
With regard, first of all, to the appropriateness of the method of calculating the ex ante contributions, it must be recalled that the Court of Justice has already acknowledged that the EU legislature could have opted, within the scope of its broad discretion, for a method of calculating the ex ante contributions based on the comparative account taken, in particular, of the financial situation of each institution authorised in the participating Member States (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 118).
159
In addition, the applicant has not put forward any evidence capable of calling into question the grounds supporting that finding or the assertion by the SRB that such a method of calculation seeks to encourage the institutions to adopt less risky methods of operation by motivating them, in particular, to improve their position vis-à-vis that of the other institutions.
160
In those circumstances, the applicant cannot claim that the calculation of the ex ante contributions on the basis of the comparative account taken of the financial situation of each institution constitutes a manifestly inappropriate measure to achieve the objective referred to in paragraph 159 above.
161
As regards the necessity of the method referred to in paragraph 159 above, the applicant claims that the ex ante contributions could have been calculated using an alternative method, based solely on the data specific to the institution concerned. However, assuming that such a method were to result in a lower ex ante contribution and that it were thus to be less onerous for the institutions, it is not established that it would enable the objective set out in paragraph 159 above to be achieved as effectively as the comparative method of calculation established by the EU legislature and the Commission.
162
In the light of the content of the applicant’s arguments, it is thus not established that the method of calculation manifestly exceeds the limits of what is necessary to achieve the objective set out in paragraph 159 above.
163
Lastly, the applicant has not shown that the calculation of the ex ante contributions on the basis of the comparative account taken of the financial situation of each institution would cause disadvantages which are manifestly disproportionate to the objective pursued, as described in paragraph 159 above.
164
In the second place, the applicant submits that the assessment of the institutions’ risk profile for the purposes of calculating the ex ante contributions is based on criteria which are out of step with those applied in the context of the SSM. Given that lack of correlation, the amount of the ex ante contribution to which the applicant is subject is artificially high and disproportionate.
165
With regard, first, to the appropriateness of the criteria for assessment of the institutions’ risk profile, as established in Article 103(7) of Directive 2014/59 – to which, moreover, point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014 refers – and Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, it is apparent from their content and from recital 107 of Directive 2014/59, recital 109 of Regulation No 806/2014 and recital 5 of Delegated Regulation 2015/63 that those criteria seek to ensure that institutions with more risky methods of operation are required to pay higher ex ante contributions than those which have adopted a less risky model.
166
Furthermore, the applicant has not presented to the Court any specific evidence challenging the fact that those criteria are capable of enabling such an objective to be achieved. In that regard, it simply made an unsubstantiated assertion that the criteria used to assess risk in the context of the SSM are more appropriate to ensuring that the institutions presenting a higher risk contribute the most to the SRF. However, in the light of the considerations set out in paragraphs 104 to 111 above, such an argument cannot be accepted, since the objectives of the legislation on the SRM and those of the legislation on the SSM are different.
167
In those circumstances, the applicant’s arguments seeking to show that the provisions referred to in paragraph 165 above, which lay down the criteria for adjustment of the ex ante contributions to the institutions’ risk profile, are manifestly inappropriate in the light of the object set out in that paragraph must be dismissed.
168
With regard, second, to the necessity of the account taken of the criteria under the provisions referred to in paragraph 165 above, the applicant alleges that, if account were taken of the criteria used in the context of the SSM, for the purposes of calculating the ex ante contributions, this could give rise to lower charges for the institutions concerned.
169
However, as the Court of Justice pointed out 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 113), the criteria provided for in the provisions referred to in paragraph 165 above seek to apportion the amount of the annual target level between all of the institutions concerned. Thus, if alternative criteria to those set out in the abovementioned provisions, such as the criteria used in the context of the SSM, gave rise to lower charges for some institutions, they would, at the same time, mean higher charges for other institutions. Despite that fact, the applicant has not explained how the application of those alternative criteria would spell lower charges for all of the institutions concerned.
170
In addition, assuming that such criteria do result in a lower ex ante contribution for the institutions, the applicant does not explain how the application of those criteria would enable the objective set out in paragraph 165 above to be achieved as effectively as the application of the criteria under the provisions referred to in that paragraph, despite the fact that, as follows from paragraphs 104 to 111 above, the objectives pursued by the SSM and, more specifically, by the EU legislation on supervisory requirements are different from those laid down in the legislation specific to the resolution of institutions.
171
In those circumstances, the applicant has not established how the criteria established by the provisions referred to in paragraph 165 above manifestly exceeded what is necessary to achieve the objective set out in the same paragraph.
172
Third, nor has the applicant shown that the adjustment of the ex ante contributions to the institutions’ risk profile, in the light of the criteria introduced in the provisions referred to in paragraph 165 above, caused disadvantages manifestly disproportionate to the objective pursued as described in the abovementioned paragraph.
173
In the third place, the applicant claims that the principle of proportionality is breached because the amount of the ex ante contributions is almost exclusively determined by the basic annual contribution. In its view, the main parameter of the ex ante contributions remains the size of the balance sheet rather than the risk adjusting multiplier which, since it varies between 0.8 and 1.5, has a limited influence. Such a mechanism means that the basic annual contributions of large institutions are overestimated, even though they present a low risk profile in the context of the SSM.
174
In that regard, it is apparent from point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, read together with recital 5 of Delegated Regulation 2015/63, that the basic annual contribution is pro-rata based on the amount of the liabilities of the institution concerned excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of all of the participating Member States; that contribution is thus based on the size of the institution.
175
As regards the appropriateness of the account taken of the size of the institutions for the purposes of calculating the basic annual contribution, it must be recalled, in view of the considerations set out in paragraph 87 above, that the institutions with significant liabilities – and therefore those which are large in size – are the most likely to have a resolution tool applied to them and thus to benefit from SRF funding.
176
It is on the basis of the criterion of the scale of the institutions’ liabilities – and, therefore, of their size – that the EU legislature and the Commission sought to guarantee the objectives reproduced in paragraph 42 above, which consist, first, in providing adequate financial resources for the SRM for the purposes of the efficient application of the resolution tools and, second, in encouraging the institutions to adopt less risky methods of operation by reducing, inter alia, their liabilities.
177
On that basis, the applicant has not shown that, by taking the size of the institutions as the basis for calculating the basic annual contribution, the EU legislature and the Commission had advocated a manifestly inappropriate measure to achieve the objectives referred to in paragraph 176 above.
178
With regard to the necessity of the criterion relating to size, the applicant submits, in essence, that, if the calculation of the ex ante contributions were based more on the risk adjusting multiplier than on the size of the institutions, the amount of those contributions would be lower, since it would reflect the low risk profile of the institutions.
179
However, if the applicant’s argument were to be interpreted as meaning that it requests that a wider range of adjusting risk multiplier is applied than that laid down in Article 9(3) of Delegated Regulation 2015/63, that is to say, a range also including values greater than 1.5%, it is not established that the calculation of the ex ante contributions on the basis of such a range would give rise to fewer charges for the institutions. In such a situation, the risk adjusting multiplier could be set at a value greater than 1.5%, with the result that the amount of those contributions would increase.
180
It cannot therefore be alleged that, by basing the calculation of the ex ante contribution more on the size of the institutions than on the risk adjusting multiplier, the method of calculating those contributions provided for by the EU legislature and clarified by the Commission manifestly exceeds what is necessary to achieve the objective referred to in paragraph 176 above.
181
Thus, the applicant has not demonstrated that the account taken of the size of the institutions for the purposes of calculating the ex ante contributions caused disadvantages which were manifestly disproportionate to the objectives pursued.
182
In the light of the foregoing, the second plea must be dismissed as unfounded.
3.
The third plea, alleging breach of the principle of legal certainty
183
By its third plea, the applicant submits that Article 69(1) and (2) and Article 70(1) and (2) of Regulation No 806/2014, Articles 4(2), 6 and 7 of and Annex I to Delegated Regulation 2015/63 and Article 4 of Implementing Regulation 2015/81 breach the principle of legal certainty. The line of argument supporting that plea is divided into three parts, based, first, on the impossibility of the institutions to ascertain the amount of their ex ante contributions in advance, second, on the failure to take account of certain risk indicators and, third, on the inappropriate rules for determining the ‘rate of growth of covered deposits’, which is used to determine the annual target level. In the context of this plea, the applicant also put forward a fourth part, alleging infringement of Article 290 TFEU.
184
As a preliminary point, it is necessary to clarify the scope of this plea of illegality.
185
In that regard, it must be observed that, even though the applicant formally raises a plea of illegality against all of the provisions referred to in paragraph 183 above, its arguments in support of that plea relate solely to the compatibility of Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63 with the principle of legal certainty. Accordingly, the applicant does not put forward any argument specifically concerning the lawfulness, in the light of that principle, of Article 69(1) and (2) and Article 70(1) and (2) of Regulation No 806/2014, of Article 4(2) of Delegated Regulation 2015/63 or of Article 4 of Implementing Regulation 2015/81. In those circumstances, it must be found that the present plea of illegality relates, in actual fact, only to Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63.
(a)
The first part, based on the impossibility of ascertaining the level of the ex ante contribution in advance
186
The applicant submits, in essence, that Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63 breach the principle of legal certainty because it cannot ascertain sufficiently in advance the amount of the ex ante contribution which will be imposed on it. First of all, the method of calculation taken as a whole is difficult to understand. Next, the adjustment of the basic annual contribution in proportion to the risk profile is dependent on the rules laid down in those provisions, which are opaque. Finally, it was assigned to the different bins in a unilateral and incomprehensible manner.
187
In addition, the setting of the ex ante contributions is based on the use of data which were not made public. Lastly, the amount of the ex ante contributions depends on the evolution of the situation of the other institutions, which entails significant degrees of interdependence between the amounts of the individual contributions of the different institutions, making it impossible to calculate a precise ex ante contribution in advance.
188
The SRB, the Parliament, the Council and the Commission dispute that line of argument.
189
The principle of legal certainty requires, on the one hand, that the rules of law be clear and precise and, on the other, that their application be foreseeable for those subject to the law, in particular, where they may have adverse consequences. That principle requires, inter alia, that legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly (judgments of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 51, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 319).
190
However, those requirements cannot be interpreted as precluding an EU institution from having recourse, in a norm that it adopts, to an abstract legal notion, nor as requiring that such an abstract norm refer to the various specific hypotheses to which it applies, given that all those hypotheses could not be determined in advance by that institution (see, by analogy, judgments of 20 July 2017, Marco Tronchetti Provera and Others, C‑206/16, EU:C:2017:572, paragraphs 39 and 40, and of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 320).
191
Accordingly, a provision of an act of the European Union does not breach the principle of legal certainty, on account of its lack of clarity, unless it displays such ambiguity as to prevent individuals from resolving with sufficient certainty any doubts as to the scope or meaning of that provision (see, to that effect, judgments of 14 April 2005, Belgium v Commission, C‑110/03, EU:C:2005:223, paragraph 31, and of 22 May 2007, Mebrom v Commission, T‑216/05, EU:T:2007:148, paragraph 108).
192
Similarly, the fact that an act of the European Union confers discretion on the authorities responsible for implementing it is not itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give adequate protection against arbitrary interference (see judgment of 16 February 2022, Poland v Parliament and Council, C‑157/21, EU:C:2022:98, paragraph 321 and the case-law cited).
193
In accordance with the case-law cited in paragraphs 191 and 192 above, it is therefore necessary to examine, in the present case, whether the applicable legislation is so ambiguous that it prevents the institutions from being able to resolve with sufficient certainty any doubts as to the scope or meaning of Articles 6 and 7 of and Annex I to Delegated Regulation 2015/63, which the applicant pleads are unlawful.
194
In the first place, as regards the alleged opacity of the method of calculation taken as a whole, it is for the applicant to identify the lack of clarity, the inaccuracies or the lack of foreseeability in the rules of law which it contests. The applicant has, however, failed to identify them and has simply made general and unsubstantiated assertions.
195
In any case, it follows from case-law that the applicable legislation does not necessarily have to enable the institutions to verify the accuracy of the calculation of their ex ante contribution, since such a requirement would necessarily mean precluding the EU legislature and the Commission from establishing a method of calculating that contribution which incorporated data the confidentiality of which is protected by EU law and, therefore, reducing unduly the broad discretion which the legislature and the Commission must have for that purpose by preventing them, inter alia, from opting for a method capable of ensuring dynamic adjustment of the financing of the SRF according to developments in the financial sector, by taking into account, in particular, the relative financial situation of each institution authorised in one of the Member States participating in the SRF (see, to that effect and by analogy, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 118).
196
Thus, it is sufficient for the persons concerned by a decision fixing ex ante contributions, while not being sent data which are business secrets, to have the method of calculation used by the SRB and sufficient information to understand, in essence, how their individual situation was taken into account, for the purposes of calculating their ex ante contribution, relative to the situation of all of the other institutions concerned (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 122).
197
The information which must thus be made available to the institutions includes, in particular, the limit values of each bin and those of the relevant risk indicators, on the basis of which the institutions’ ex ante contribution was adjusted to their risk profile (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 167).
198
In addition, Delegated Regulation 2015/63 does not prevent the SRB from disclosing, in collective and anonymised form, sufficient information to enable an institution to understand how its individual situation was taken into account in the calculation of its ex ante contribution relative to the situation of all of the other institutions concerned (judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 139).
199
In those circumstances, the first complaint must be dismissed.
200
In the second place, as regards the adjustment of the basic annual contribution of the institutions in proportion to their risk profile, it must be observed that the applicant merely submits that Articles 6 and 7 of Delegated Regulation 2015/63 are ‘opaque by virtue of their scale’ and therefore claims, in general terms, that the concepts used in those provisions lack clarity such that they entail a breach of the principle of legal certainty.
201
However, the applicant has not presented to the Court any specific evidence to contest the lawfulness of Articles 6 and 7 of Delegated Regulation 2015/63 because of their alleged lack of clarity, their inaccuracy or their lack of foreseeability.
202
In those circumstances, the second complaint cannot be upheld.
203
In the third place, as regards the applicant’s argument that the binning method, described in paragraph 204 below, in particular the assignment to the different bins, is implemented in a unilateral and incomprehensible manner, the following should be noted.
204
In accordance with ‘Step 2’ in Annex I to Delegated Regulation 2015/63, it is for the SRB to determine, as a first stage, a number of bins with a view to comparing the institutions in the light of the various risk indicators and sub-indicators. As a second stage, the SRB is to assign the institutions to each bin. As a third stage, the SRB is to assign all of the institutions in a particular bin the same score, referred to as the ‘discretized indicator’, which it must take into account for the remainder of the calculation of their risk adjusting multiplier.
205
Furthermore, Annex I to Delegated Regulation 2015/63 details, inter alia, the different steps of the binning method and sets out the mathematical formulae to be applied by the SRB.
206
The applicant has not, however, presented to the Court any specific evidence intended to identify a lack of clarity, precision or foreseeability in relation to those different steps or those formulae.
207
In any event, in the light of the considerations set out in paragraphs 195 to 197 above, the Commission was not required to provide that the institutions are to be supplied with data enabling them to verify fully the accuracy of the application of the binning method.
208
In addition, Delegated Regulation 2015/63 does not prevent the SRB, in order to satisfy the requirements referred to in paragraphs 196 and 197 above, from disclosing the limit values of each bin and the relevant indicators, with a view to enabling the institution concerned to ensure, inter alia, that the classification assigned to it in the course of discretization of the indicators, as defined in Annex I to that delegated regulation, does actually reflect its economic situation, that that discretization was performed in a manner consistent with the method laid down in that delegated regulation on the basis of plausible data, and that all of the factors to be taken into consideration in applying Regulation No 806/2014 and the delegated regulation were indeed taken into account.
209
In the fourth place, the applicant cannot rely, in support of the present plea of illegality, on the fact that the calculation tool made available to the institutions by the SRB before the adoption of the contested decision did not allow those institutions to review the analyses carried out by the SRB to assign them to the different bins. That calculation tool is not provided for in the applicable legislation, more specifically in Delegated Regulation 2015/63. Such criticism is therefore concerned with the legality of the SRB’s actions and not with the legality of that delegated regulation.
210
Assuming that complaint is to be understood as meaning that, by the complaint, the applicant contests the lawfulness of the contested decision, it is sufficient to state that the applicant fails to explain how, despite the fact that the applicable legislation does not require the SRB to make the calculation tool referred to in paragraph 209 above available to the institutions and that that tool was communicated before that decision was adopted, allegedly insufficient data in the tool affect the validity of the decision. In any case, it follows from the case-law cited in paragraphs 195 and 196 above that the SRB is not required to disclose data which are business secrets relating to the economic situation of each of the other institutions concerned.
211
In the fifth place, the applicant states that the publication of certain aggregated data points in the decisions fixing the ex ante contributions of a particular year is insufficient, as other non-confidential information needed to understand properly and to foresee the calculations are not always published by the SRB.
212
By such a line of argument, the applicant likewise does not call into question the provisions of the applicable legislation referred to in paragraph 186 above, which it pleads are unlawful in the light of the principle of legal certainty.
213
The applicant merely criticises the SRB’s failure to publish certain non-confidential information needed to calculate the ex ante contributions before the adoption of the decisions fixing those contributions. This complaint therefore concerns not the lawfulness of the applicable legislation but the manner of its application by the SRB.
214
Assuming that that complaint must be understood as meaning that, by the complaint, the applicant challenges the lawfulness of the contested decision, the applicant does not explain with sufficient clarity which specific information the SRB was required to publish in order to satisfy the requirements arising from the case-law cited in paragraphs 195 and 196 above, but which it failed to publish. In that regard, it follows moreover from that same case-law that it would be excessive to require the SRB to disclose each of the figures on which the calculation of the ex ante contribution of each institution concerned is based (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 123 and the case-law cited).
215
In the sixth place, with regard to the fact that the calculation of the ex ante contributions of an institution depends on confidential data relating to the situation of the other institutions, which makes the method of calculation more unforeseeable, it must be observed that the applicant’s line of argument in that regard is not developed at all.
216
In any event, those arguments run counter to the guidance provided 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), which does indeed concern respect for the duty to state reasons but which applies equally as regards compliance with the principle of legal certainty.
217
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), the Court of Justice acknowledged that the very principle of the method of calculating ex ante contributions, as set out in Directive 2014/59 and Regulation No 806/2014, could mean that the SRB had to use data from other institutions which are business secrets (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 114).
218
In those circumstances, first, the applicant cannot rely on the mere fact that it cannot calculate in advance the ex ante contribution to which it is liable because it is not informed of the data from the other institutions.
219
Second, as observed in paragraph 198 above, Delegated Regulation 2015/63 does not prevent the SRB from disclosing, in collective and anonymised form, sufficient information to enable an institution to understand how its individual situation was taken into account in the calculation of its ex ante contribution relative to the situation of all of the other institutions concerned.
220
The first part of the third plea must therefore be dismissed.
(b)
The second part, based on the lack of foreseeability as regards the application of certain risk indicators
221
The applicant submits that some of the risk indicators were not applied to calculate the ex ante contributions for the 2021 contribution period, namely the ‘net stable funding ratio’, the MREL and the ‘complexity’ and ‘resolvability’ indicators. The failure to take account of those risk indicators, as well as the lack of foreseeability as to their use, runs counter to the principle of legal certainty, since the applicant cannot foresee their application.
222
In addition, the fact that Delegated Regulation 2015/63 leaves to the SRB, in the transitional provisions, the option of not using certain risk indicators, whilst allowing it, however, to adjust the basic annual contribution in proportion to the risk profile, is a source of legal uncertainty.
223
The SRB and the Commission dispute that line of argument.
224
According to the case-law cited in paragraphs 189 to 192 above, it is necessary to examine, in the present case, whether the applicable regulation is so ambiguous that it prevents the institutions from being able to resolve with sufficient certainty any doubts as to the application of certain risk indicators, such as the ‘net stable funding ratio’, the MREL and the ‘complexity’ and ‘resolvability’ indicators.
225
The circumstances in which the SRB can refrain, on a transitional basis, from applying such risk indicators are laid down in Article 20(1) of Delegated Regulation 2015/63, according to which, ‘where the information required by a specific indicator as referred to in Annex II [to that delegated regulation] is not included in the applicable supervisory reporting requirement referred to in Article 14 [of that delegated regulation] for the reference year, that risk indicator shall not apply until that supervisory reporting requirement becomes applicable’.
226
Article 20(1) of Delegated Regulation 2015/63 thus provides for two circumstances in which the SRB does not apply a risk indicator on a transitional basis, namely, in the first place, where the information required by such an indicator is not included in the applicable supervisory reporting requirement referred to in Article 14 of that delegated regulation and, in the second place, where that indicator is referred to in Annex II to the delegated regulation, which is entitled ‘Data to be submitted to the resolution authorities’ and includes 15 categories of data. However, the applicant has not claimed, let alone established, that those circumstances are so ambiguous that they prevent the institutions from being able to resolve with sufficient certainty any doubts as to the application of certain risk indicators.
227
In those circumstances, the applicant’s arguments intended to show that Regulation No 806/2014 or Delegated Regulation 2015/63 is unlawful because it allegedly breaches the principle of legal certainty due to the lack of foreseeability vis-à-vis the use of the risk indicators must be dismissed.
228
The second part of the third plea must therefore be dismissed.
(c)
The third part, based on the rules for determining the ‘rate of growth of covered deposits’
229
The applicant takes the view that the objective of reaching a final target level – equal to 1% of the amount of covered deposits of the banking union – means that, each year, the SRB assesses a ‘rate of growth of covered deposits’, which is determined in an opaque manner and the evolution of which is difficult for the institutions to foresee.
230
The SRB disputes that line of argument.
231
It must be observed that the applicant has not presented to the Court any specific evidence intended to show that the provisions referred to in paragraph 183 above are so ambiguous that they prevent the institutions from being able to resolve with sufficient certainty any doubts as to the determination of the final target level or the annual target level.
232
In addition, part of the applicant’s line of argument contests, in reality, the failure to state reasons for the contested decision as regards the determination of the annual target level. That complaint does not concern the legality of the provisions referred to in paragraph 183 above and will be examined in paragraphs 271 to 308 below.
233
The third part of the third plea must therefore be rejected in so far as the applicant contests the legality of those provisions.
(d)
The fourth part, alleging infringement of Article 290 TFEU by the calculation criteria defined in Delegated Regulation 2015/63
234
In the context of the third plea, the applicant also took the view that the fact that essential calculation criteria were defined in Delegated Regulation 2015/63 and not in Regulation No 806/2014 gave rise to an infringement of Article 290 TFEU. At the hearing, the applicant explained that, by that argument, it claimed that Directive 2014/59 had only determined the main risk categories, which it had grouped into four risk pillars, but that it had not taken a position on the criteria themselves, which had been defined by the Commission in Delegated Regulation 2015/63.
235
The Parliament contests the merits of this part of the third plea and questions its admissibility, since it was not raised in a sufficiently clear and precise manner in the application.
236
In that regard, it follows from case-law that, if an action is to be admissible, the essential points of fact and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible, in order to ensure legal certainty and the sound administration of justice. Thus, any plea which is not adequately articulated in the application initiating the proceedings must be held to be inadmissible. Similar requirements apply where a complaint is relied upon in support of a plea. That absolute bar to proceedings must be raised ex officio by the Courts of the European Union (see judgments of 30 June 2021, Italy v Commission, T‑265/19, not published, EU:T:2021:392, paragraph 33 and the case-law cited, and of 7 July 2021, Bateni v Council, T‑455/17, EU:T:2021:411, paragraph 135 and the case-law cited).
237
Here, the application simply stated, in paragraph 125 thereof, that ‘the eminently structural and decisive function of the calculation criteria defined in [Delegated Regulation 2015/63] [led] to those criteria being regarded, by definition, as essential to [Regulation No 806/2014], which [gave] rise to an infringement of Article 290 TFEU’ and, in paragraph 139 thereof, that ‘the fact that essential calculation criteria were adopted in the context of the Delegated Regulation and not of [Regulation No 806/2014] infringe[d] Article 290[(1)] TFEU’.
238
Those assertions are not accompanied by any arguments in the application. For instance, the applicant has, inter alia, failed to identify the provisions of Delegated Regulation 2015/63 which, in its view, contained essential elements within the meaning of the second sentence of the second subparagraph of Article 290(1) TFEU, which should have appeared in Directive 2014/59. Similarly, the applicant has not specified which specific elements of those provisions are ‘essential’ or put forward any arguments in that regard.
239
Lastly, the lack of clarity of this part is exacerbated by the fact that it was raised in the context of a plea alleging infringement of a different rule of law, namely the principle of legal certainty.
240
Accordingly, it must be found that the essential points of fact and law upon which the complaint alleging infringement of Article 290 TFEU is based are not apparent, even if only stated briefly, from the text of the application itself. Such a complaint does not therefore satisfy the requirements set out in paragraph 236 above.
241
In those circumstances, the line of argument put forward by the applicant at the hearing cannot be regarded as an amplification of the complaint set out in paragraphs 125 and 139 of the application, since such a complaint was not relied on properly.
242
The fourth part of the third plea must therefore be dismissed as inadmissible.
4.
The fourth and fifth pleas, alleging breach of the principle of good administration and breach of the principle of effective judicial protection, in so far as they include a plea of illegality
243
The applicant takes the view that Articles 4(2), 6 and 7 of and Annex I to Delegated Regulation 2015/63, on the one hand, and the contested decision based on those provisions, on the other hand, breach the principle of good administration, which includes the duty to state reasons, and the principle of effective judicial protection. According to the applicant, the institutions do not have access to all of the data which are essential to enabling them to understand and to verify the contested decision. In particular, the detailed rules for the calculation of the ‘rate of adjustment of covered deposits’ are not known by the institutions, which prevents them from ensuring the validity of the calculations made in that regard.
244
The SRB disputes that line of argument.
245
In the first place, it must be recalled that the principle of good administration requires, in cases in which, as in the present case, EU institutions or bodies enjoy discretion, that the guarantees afforded by the Union legal order are respected in administrative proceedings; those guarantees include, inter alia, the duty on the part of the competent institution or body to examine carefully and impartially all of the relevant aspects of the individual case (judgments of 21 November 1991, Technische Universität München, C‑269/90, EU:C:1991:438, paragraph 14; of 30 September 2003, Atlantic Container Line and Others v Commission, T‑191/98, T‑212/98 to T‑214/98, EU:T:2003:245, paragraph 404; and of 9 April 2019, Qualcomm and Qualcomm Europe v Commission, T‑371/17, not published, EU:T:2019:232, paragraph 200).
246
In the second place, according to settled case-law, if the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) is to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision itself or by requesting and obtaining notification of those reasons, without prejudice to the power of the court with jurisdiction to require the authority concerned to provide that information, so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in applying to the court with jurisdiction, and in order to put the latter fully in a position in which it may carry out the review of the lawfulness of the decision in question (see judgments of 26 April 2018, Donnellan, C‑34/17, EU:C:2018:282, paragraph 55, and of 24 November 2020, Minister van Buitenlandse Zaken, C‑225/19 and C‑226/19, EU:C:2020:951, paragraph 43).
247
Furthermore, having regard to the adversarial principle that is an element of the rights of the defence which are referred to in Article 47 of the Charter, the parties to a case must have the right to examine all the documents or observations submitted to the court for the purpose of influencing its decision, and to comment on them. The fundamental right to an effective legal remedy prevents a judicial decision from being founded on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to state their views (see judgments of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraphs 55 and 56, and of 23 October 2014, Unitrading, C‑437/13, EU:C:2014:2318, paragraph 21).
248
However, in certain exceptional cases, an EU authority may preclude the disclosure to the person concerned of the precise and full grounds which form the basis of a decision taken against that person, relying on reasons covered by the protection of confidential data. In such a case, it is necessary to apply the techniques and rules of law which accommodate, on the one hand, legitimate considerations relating to the protection of confidential data taken into account in the adoption of such a decision and, on the other hand, the need sufficiently to guarantee to an individual respect for his or her procedural rights, such as the right to be heard and the requirement for an adversarial process (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 115 to 120; see also, to that effect and by analogy, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 125).
249
In the light of the specific nature of the ex ante contributions, such an accommodation must also be made in the case of the calculation of those contributions. As is apparent from recitals 105 to 107 of Directive 2014/59 and from recital 41 of Regulation No 806/2014, the purpose of the contributions 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 function, while encouraging the adoption, by the institutions concerned, of less risky methods of operation. Thus, the calculation of those contributions is based not on the application of a rate to a basis of assessment but rather, pursuant to Articles 102 and 103 of Directive 2014/59 and Articles 69 and 70 of Regulation No 806/2014, on the fixing of a final target level that must be met by an aggregate of all of those same contributions collected before the end of the initial eight-year period from 1 January 2016 (‘the initial period’ and ‘the final target level’), and thereafter on an annual target level to be apportioned between the institutions authorised in the territories of all of the participating Member States (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).
250
Since the final target level is defined as required to be 1% of the amount of covered deposits of all of those institutions and the annual basic contribution of each institution is to be pro rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate net liabilities (excluding own funds) less covered deposits of all the institutions authorised in the territories of all of the participating Member States, it becomes clear that the very principle of the method of calculating ex ante contributions, as set out in Directive 2014/59 and Regulation No 806/2014, means that the SRB must use data which are business secrets (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 114).
251
EU institutions and bodies are, in principle, required, in accordance with the principle of the protection of business secrets, which is a general principle of EU law, to which concrete expression is given inter alia in Article 339 TFEU, not to disclose to the competitors of a private operator confidential information which that operator has provided (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 109 and 114 and the case-law cited).
252
In those circumstances, it fell to the Commission and to the Council, when establishing the system of calculating ex ante contributions by means of Delegated Regulation 2015/63 and Implementing Regulation 2015/81, to reconcile respect for business secrets with the principle of effective judicial protection, such that data constituting business secrets cannot be disclosed to the persons concerned and those data cannot, inter alia, be included in the statement of reasons for the decisions determining the amount of ex ante contributions.
253
That feature of the system of calculating ex ante contributions does not however prevent the Courts of the European Union from conducting an effective judicial review.
254
First, nothing in the provisions which the applicant pleads are illegal precludes the SRB, in accordance with the first subparagraph of Article 88(1) of Regulation No 806/2014, from disclosing, when adopting its decision determining the ex ante contributions, confidential information received in the context of its activity in summary or collective form, such that the institutions concerned cannot be identified (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 136).
255
Second, where the statement of reasons for such a decision has to be limited in order to ensure the protection of confidential data, it is for the decision-maker, in the event of submissions before the Courts of the European Union calling those data into question, to establish its case before them in the course of their investigation (see, to that effect, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 110, and 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 145).
256
Where appropriate, in order to carry out an effective judicial review, in accordance with the requirements of Article 47 of the Charter, the Courts of the European Union may thus request that the SRB produce data capable of justifying calculations the accuracy of which has been challenged before them, by ensuring, where necessary, the confidentiality of those data (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 146).
257
In addition, when carrying out an examination of all of the matters of fact or law produced by the SRB, it is for the Courts of the European Union to determine whether the reasons relied on by the SRB as grounds to preclude the disclosure of the data used for the purposes of calculating the ex ante contribution are well founded (see, to that effect and by analogy, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 126).
258
If it turns out that the reasons relied on by the SRB do actually preclude the disclosure of information or evidence produced before the Courts of the European Union, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from the protection of business secrets (see, to that effect and by analogy, judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 128).
259
It follows from the foregoing that the calculation of the ex ante contributions on the basis of data constituting business secrets, in accordance with Articles 4(2), 6 and 7 of and Annex I to Delegated Regulation 2015/63, and without those data being made available to the persons concerned, does not in itself mean that those provisions are incompatible with the principle of good administration and the principle of effective judicial protection.
260
That conclusion is not called into question by the applicant’s arguments.
261
In that regard, first, the applicant cannot rely on the judgments of 28 November 2019, Portigon v SRB (T‑365/16, EU:T:2019:824), and of 23 September 2020, Landesbank Baden-Württemberg v SRB (T‑411/17, EU:T:2020:435). On one hand, the latter judgment was set aside by the Court of Justice in its 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), and the considerations on the principle of effective judicial protection upon which the applicant relies were overturned. On the other hand, contrary to what the applicant claims, the judgment of 28 November 2019, Portigon v SRB (T‑365/16, EU:T:2019:824) does not contain any analysis specifically concerning the principle of effective judicial protection.
262
Second, the applicant cannot contest the legality of Delegated Regulation 2015/63 on the ground that neither Regulation No 806/2014 nor Directive 2014/59 lays down a method of calculating the ex ante contributions under which a target level is first defined and then those same contributions are distributed between the institutions.
263
In that regard, it is sufficient to recall that, as has been stated in paragraphs 254 to 258 above, the Court of Justice has accepted that the EU legislature may use a method of calculation based on the definition of a target level, and then of an annual target level to be apportioned between all of the institutions, without however the duty to state reasons or the principle of effective judicial protection being breached (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 136, 145 and 146).
264
In those circumstances, Delegated Regulation 2015/63 could also introduce such a method.
265
Third, the applicant takes the view that the institutions do not have access to all of the data which are essential to enabling them to understand and to verify the contested decision.
266
In that regard, on one hand, it is sufficient to recall that the provisions referred to in paragraph 243 above do not prevent the SRB, in order to satisfy the requirements referred to in paragraphs 245 to 258 above, from disclosing the information needed to enable the institutions concerned to ensure, inter alia, that they have access to all of the data which are essential in order to understand and verify the contested decision.
267
On the other hand, in so far as it concerns the lawfulness of the contested decision, the applicant has not raised before the Court any arguments in support of the complaint.
268
Such a complaint cannot therefore succeed.
269
Fourth, as regards the applicant’s line of argument concerning the lack of data in the contested decision on the determination of the ‘rate of adjustment of covered deposits’ which serves to determine the annual target level, such a line of argument does not call into question the provisions referred to in paragraph 243 above, which the applicant pleads are unlawful having regard to the principle of good administration and the principle of effective judicial protection, but rather the legality of the contested decision. It will therefore be examined in paragraphs 309 to 314 below.
270
The fourth and fifth pleas must therefore be dismissed in so far as they are raised in support of the plea of illegality in respect of Articles 4(2), 6 and 7 of and Annex I to Delegated Regulation 2015/63.
C. The pleas concerning the lawfulness of the contested decision
1.
The statement of reasons for the determination of the annual target level
271
As stated in paragraph 232 above, by the third part of the third plea the applicant contests, inter alia, in actual fact, the failure to state reasons in the contested decision as regards the determination of the annual target level.
272
In that regard, 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 of the institutions authorised in the territories of all of the participating Member States.
273
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 272 above is reached, but with due account taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.
274
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.
275
In relation to the method of calculating 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.
276
Similarly, under Article 4 of Implementing Regulation 2015/81, the SRB is to calculate the ex ante contribution for each institution on the basis of the annual target level, which must be established having regard to the final target level and in accordance with the methodology set out in Delegated Regulation 2015/63.
277
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 11287677 212.56 for the 2021 contribution period.
278
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.
279
The SRB set out the approach followed to determine the coefficient in recitals 38 to 47 of the contested decision.
280
In recital 38 of the contested decision, the SRB found there to be a constant growth trend in covered deposits for all of the institutions in the participating Member States. Specifically, the average amount of those deposits, calculated quarterly, amounted to EUR 6.689 trillion in 2020.
281
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%.
282
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 gross domestic product growth forecast and the projections of the European Central Bank (ECB) in that regard or the private-sector credit flow as a percentage of gross domestic product.
283
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.
284
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 11287677 212.56’.
285
However, at the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period as follows.
286
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.
287
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 at the end of the initial period, namely approximately EUR 75 billion.
288
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.
289
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 277 above, that is to say, approximately EUR 11.287 billion.
290
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 286 to 289 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 entitled ‘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 sources well before the contested decision was adopted.
291
In order to examine whether the SRB complied with its obligation 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 European Union 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.
292
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 confirmed the methodology which it had actually followed to determine the annual target level for the 2021 contribution period, as set out in paragraphs 286 to 289 above.
293
Next, as regards the content of the duty to state reasons, it follows from case-law that the statement of reasons for the decision of an EU institution, body, office or agency is particularly important in so far as it allows persons concerned to decide in full knowledge of the circumstances whether it is worthwhile to bring an action against the decision and the court with jurisdiction to review it, and that it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 103 and the case-law cited).
294
Such a statement of reasons must be adapted to the nature of the legal act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the act concerning him or her (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 104 and the case-law cited).
295
Furthermore, that statement of reasons must not, inter alia, 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 that 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).
296
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).
297
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 293 and 294 above. In particular, such inconsistency prevents the persons concerned from knowing the real reasons for the contested decision, before bringing an action, 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.
298
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 calculating 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).
299
The same must apply to the method of determining the annual target level, as that amount is of critical importance in the scheme of such a decision. As is clear from Article 4 of Implementing Regulation 2015/81, the method of calculating 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 same amount means a corresponding increase or reduction in the ex ante contribution of each of those institutions.
300
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.
301
However, that is not the case here.
302
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 determining 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 286 to 289 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. Those two steps of the calculation are not expressed in the mathematical formula.
303
Furthermore, that finding cannot be called into question by the SRB’s assertion that, in May 2021, it published the fact sheet, which contained a range indicating the potential amounts of the final target level, and, on its website, it published the amount of financial resources available in the SRF. Regardless of whether the applicant was actually aware of those amounts, the latter were incapable, on their own, of enabling it to understand that the two operations referred to in paragraph 302 above had actually been applied by the SRB, bearing in mind, moreover, that the mathematical formula provided for in recital 48 of the contested decision did not even mention them.
304
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 303 above. That coefficient could be understood as meaning that it is based, amongst other parameters, on the forecasted growth in covered deposits over the remaining years of the initial period. However, that is inconsistent with the explanations provided by the SRB at the hearing, from which it is apparent that that coefficient was determined so as to be able to justify the result of the calculation of the amount of the annual target level, that is to say, after the SRB calculated that amount by following the four steps set out in paragraphs 286 to 289 above and, in particular, by dividing by three the amount obtained from the deduction of the available financial means in the SRF from the final target level. No reference to those steps is made in the contested decision.
305
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 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.
306
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.
307
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.
308
The third part of the third plea, in so far as it is based on a failure to state reasons for the contested decision as regards the determination of the annual target level, must therefore be upheld. In view of the legal and economic implications of this 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.
2.
The remainder of the fourth and fifth pleas, alleging breach of the principle of good administration and breach of the principle of effective judicial protection by the SRB in the contested decision
309
As is clear from paragraph 269 above, by its fourth and fifth pleas the applicant also contests the breach of the principle of good administration and the principle of effective judicial protection by the contested decision itself.
310
The applicant’s line of argument relates more specifically to the lack of data in the contested decision relating to the determination of the ‘rate of adjustment of covered deposits’ which serves to determine the annual target level, that is to say, the coefficient.
311
As is apparent from the examination contained in paragraphs 271 to 308 above, the SRB breached the duty to state reasons as far as concerned the determination of the annual target level.
312
Furthermore, it follows from Article 41(2)(c) of the Charter and from the case-law cited in paragraph 246 above that the statement of reasons for a decision of an EU body is one of the requirements for the effectiveness of the principles of good administration and effective judicial protection.
313
It follows that the breach of the duty to state reasons for the contested decision as regards the determination of the annual target level also constitutes a breach of the principle of good administration and of the principle of effective judicial protection.
314
The fourth and fifth pleas must therefore be upheld in so far as they concern the breach of the principles of good administration and effective judicial protection as a result of the breach of the duty to state reasons.
3.
The seventh and eighth pleas, alleging manifest errors of assessment and an error in law resulting from the limitations imposed on the use of IPCs
315
By the seventh plea, the applicant submits that the SRB made a number of manifest errors of assessment when evaluating the level of use of IPCs and the collateral to be accepted in return.
316
By the eighth plea, the applicant submits that the SRB infringed Article 70(3) of Regulation No 806/2014 and Article 103(3) of Directive 2014/59 when it determined the level of use of IPCs and the collateral to be accepted in return.
317
The SRB disputes that line of argument.
318
As a preliminary point, it must be recalled that the ex ante contributions may be made either via an immediate cash payment or via an IPC, in accordance with Article 70(3) of Regulation No 806/2014. If an IPC is used, the institution concludes an agreement with the SRB by which the institution undertakes to pay the corresponding amount, as part of the ex ante contribution, on first demand.
319
In that regard, it must be stated that, in the contested decision, the SRB limited the use of IPCs to 15% of the amount of the ex ante contributions due in respect of the 2021 contribution period and the collateral provided for the IPCs to cash only.
320
In addition, it must be recalled that Article 70(3) of Regulation No 806/2014 provides that the available financial means to be taken into account in order to reach the final target level may include IPCs which are fully backed by collateral of low-risk assets unencumbered by any third-party rights, at the free disposal of the SRB, it being recalled that the share of IPCs cannot exceed 30% of the total amount of the ex ante contributions each year. Article 103(3) of Directive 2014/59 also provides for such an option.
321
Under Article 13(3) of Delegated Regulation 2015/63, it is for the SRB to specify, in the decision relating to the ex ante contributions for a particular contribution period, the share of IPCs that each institution can use, with the SRB accepting collateral only of the kind and under the conditions that allow for swift realisability, including in the event of a resolution decision over the weekend.
322
Where the SRB defines the share of those IPCs, it must ensure, in accordance with Article 7(1) of Implementing Regulation 2015/81, that recourse to IPCs in no way affects the financial capacity or the liquidity of the SRF.
323
Finally, Article 8(3) of Implementing Regulation 2015/81 states that, during the initial period, under normal circumstances, the SRB is to allow the use of IPCs upon request from an institution and is to allocate the use of IPCs evenly among those institutions requesting it. That provision also specifies that the allocated IPCs are not to be less than 15% of the total payment obligations of the institution concerned and that, when calculating the annual contributions of each institution, the SRB is to ensure that, in any given year, the sum of those IPCs does not exceed 30% of the total amount of those contributions.
324
It follows from the abovementioned provisions, first, that the specific rate of IPCs allocated to an institution requesting their use is a minimum of 15% of its total payment obligations and, second, that the sum of all of those authorised IPCs must not exceed the maximum limit of 30% of the total of the ex ante contributions for the whole of the contribution period concerned. As is confirmed by Article 7(1) of Implementing Regulation 2015/81, the purpose of the latter cap set by the EU legislature is to avoid jeopardising the liquidity and operational capacity of the SRF.
325
Accordingly, it is for the SRB to determine the exact share of IPCs granted to an institution requesting their use; that share cannot be lower than 15% of the institution’s total payment obligations, and the SRB must ensure that the cap vis-à-vis the sum of all of the IPCs authorised, referred to in paragraph 324 above, is not exceeded. In addition, although those provisions do not contain any clarifications as to the nature of the collateral to be accepted, the fact remains that the SRB can accept IPCs only if they are backed by low-risk assets unencumbered by any third-party rights and if the conditions of those IPCs allow for their swift realisability.
326
The determination of the exact share of IPCs granted to an institution requesting their use and the nature of the acceptable collateral thus entail complex economic and technical assessments, and therefore the review by the Courts of the European Union must be limited to verifying whether the exercise of the discretion afforded to the SRB has been vitiated by a manifest error of assessment or a misuse of powers, or whether the SRB has manifestly exceeded the limits of that discretion.
327
It is in the light of those considerations that the applicant’s arguments must be examined.
328
In the first place, with regard to the limitation of the use of IPCs to 15% of the amount of the ex ante contributions, the applicant takes the view that such a limitation is contrary to the spirit, the context and the objectives of Article 70(3) of Regulation No 806/2014, because the SRB did not intend to allow the institutions to benefit fully from the possibility of using IPCs beyond that 15% threshold.
329
In that regard, as already stated in paragraph 320 above, Article 70(3) of Regulation No 806/2014 states that the share of IPCs cannot exceed the threshold of 30% of the total amount of all of the ex ante contributions paid each year. However, that provision does not state that the SRB must set the share of IPCs at 30% of the total payment obligations of the institution requesting their use.
330
In addition, the SRB’s determination of the share of IPCs granted to the institutions requesting their use must be based on a specific assessment of the situation of those institutions and of the position of the SRF, since the SRB must also ensure that recourse to IPCs does not in any way affect the financial capacity or the liquidity of the SRF, in accordance with recital 16 and Article 7(1) of Implementing Regulation 2015/81.
331
In addition, as is clear, inter alia, from recital 150 of the contested decision, the SRB decided not to set the share of IPCs at a level greater than 15% of the amount of the ex ante contributions on the basis of a specific examination of all of the circumstances which it deemed to be relevant, inter alia those related to the COVID-19 pandemic, as well as the long-term consequences that a call for a higher level of IPCs would have on the position of the institutions.
332
In those circumstances, the applicant cannot claim that limiting the use of IPCs to 15% of the total payment obligations of the institution requesting their use is contrary to Article 7(3) of Regulation No 806/2014.
333
In the second place, the applicant submits, with regard to the requirement imposed by the SRB that the collateral for the IPCs must be in the form of cash, that neither Article 103(3) of Directive 2014/59 nor Article 70(3) of Regulation No 806/2014 leaves to the SRB’s discretion the choice of defining the type of collateral which the institutions may provide. The SRB therefore goes beyond the legal requirements limiting its powers by imposing, as a matter of principle and in a quasi-regulatory manner, such a type of collateral.
334
In that regard, as found in paragraph 326 above, it is apparent from the provisions referred to in paragraphs 320 to 323 above that the SRB enjoys discretion as regards the arrangements for the use of IPCs and the nature of the collateral to be accepted in return for them.
335
It is true that that discretion is limited by the requirement that that collateral must be low-risk assets unencumbered by any third-party rights, at the free disposal of the SRB, which in no way affect the financial capacity or the liquidity of the SRF.
336
However, the applicant has not presented to the Court any evidence capable of demonstrating which other types of assets would provide collateral comparable to cash as far as those conditions were concerned.
337
In those circumstances, the applicant cannot submit that the SRB has infringed Article 103(3) of Directive 2014/59 and Article 70(3) of Regulation No 806/2014 by determining the type of collateral which the institutions had to provide in respect of IPCs.
338
That conclusion is not called into question by the fact that the SRB justified that requirement by referring, in recital 152 of the contested decision, to the IPCs already entered into in previous contribution periods, since such a fact has no bearing on the error of law alleged.
339
In the third place, the applicant claims that the limitation on the use of IPCs is unclear because the SRB refused the request made by certain institutions for Decision SRB/ES/2020/71 of 16 December 2020 determining the policy for the 2021 contribution period concerning IPCs (‘the decision determining the IPC policy’) to be communicated to them or to be published.
340
In that regard, the applicant does not provide sufficient explanations of the impact of that fact on the examination of the error in law relied on in the context of the present pleas.
341
Furthermore, in so far as the present complaint must be understood as meaning that, by the complaint, the applicant calls into question the adequacy of the statement of reasons for the contested decision, it must be stated that there is an overlap between that complaint and the sixth plea, based on a failure to state reasons for the contested decision in relation to IPCs. In addition, at the hearing, the applicant withdrew that plea, thereby suggesting that it no longer contested the statement of reasons for the contested decision as far as the use of IPCs was concerned.
342
In any event, in response to a measure of inquiry of the Court of 9 November 2022, the SRB produced the interim decisions relevant to the calculation of the ex ante contributions for the 2021 contribution period. The non-confidential versions of those decisions, which were then served on the applicant, include, inter alia, the decision determining the IPC policy. Moreover, the contested decision itself provides, in recitals 145 to 155 thereof, a statement of reasons concerning IPCs.
343
Furthermore, the applicant has failed to identify any element in the decision determining the IPC policy which was not reproduced in the contested decision itself.
344
Accordingly, there is nothing to show that the failure to publish the decision determining the IPC policy had any impact whatsoever on the scope of the information available to the applicant to be able to verify the legality of the use of IPCs.
345
In the fourth place, the applicant submits that the SRB made manifest errors of assessment as regards the liquidity and pro-cyclical risks which would be triggered by recourse to IPCs above the rate of 15% of the ex ante contributions. Contrary to the SRB’s assessment, provision was made for the use of IPCs in order to mitigate the pro-cyclical effects that ex ante contributions might cause on account of their amount. For instance, in the light of the macroeconomic context of 2020, the increased use of IPCs helped offset the increase in those contributions due to the increase in the institutions’ deposits.
346
In that regard, it is true that, if the SRB sets the share of IPCs of each institution requesting their use at a level greater than 15% of its total payment obligations, that level may provide short-term relief for the institutions in question, as the applicant claims, because it reduces the share of their ex ante contributions which has to be paid immediately in cash.
347
However, as the SRB essentially contends, without being contradicted in this regard, a level greater than 15% risks having pro-cyclical effects on the long-term position of the institutions. Article 7(2) of Implementing Regulation 2015/81 provides that, when a resolution action involves the SRF in accordance with Article 76 of Regulation No 806/2014, part or all of the IPCs are called by the SRB in order that the corresponding sums are paid to the SRF. It follows from that fact that, in such a situation, the institutions which have used IPCs have to mobilise those IPCs and pay the corresponding sums, which entails a risk of significant losses for them, a risk which would be even greater if the share of IPCs were set at a high level.
348
That is a fortiori the case given the particular circumstances in which the contested decision was adopted, circumstances marked by the economic uncertainty linked to the COVID-19 pandemic. In that context, the effects triggered by any call for IPCs on the position of the institutions could have been even more serious, as the SRB observes in essence in recitals 150, 152 and 153 of the contested decision.
349
In those circumstances, the SRB was entitled to take the view that a higher level of IPCs could have long-term pro-cyclical effects for the institutions by increasing their losses following the payment of the sums corresponding to the IPCs in the context of any resolution action.
350
The applicant has therefore failed to demonstrate that the SRB made a manifest error of assessment, misused its powers or manifestly exceeded the limits of its discretion by setting the share of IPCs at 15% of the amount of the ex ante contributions for the 2021 contribution period.
351
That finding is not called into question by the judgments to which the applicant refers, namely the judgments of 9 September 2020, Société générale v ECB (T‑143/18, not published, EU:T:2020:389); of 9 September 2020, Crédit agricole and Others v ECB (T‑144/18, not published, EU:T:2020:390); of 9 September 2020, Confédération nationale du Crédit mutuel and Others v ECB (T‑145/18, not published, EU:T:2020:391); of 9 September 2020, BPCE and Others v ECB (T‑146/18, not published, EU:T:2020:392); of 9 September 2020, Arkéa Direct Bank and Others v ECB (T‑149/18, not published, EU:T:2020:393); and of 9 September 2020, BNP Paribas v ECB (T‑150/18 and T‑345/18, EU:T:2020:394). Those judgments concern decisions of the ECB by which the latter required that the cumulative amounts of IPCs subscribed to the SRF or the DGSs be deducted from own funds. In those judgments, the European Union judicature did not rule on the SRB’s determination of the level of use of IPCs or on the collateral to be accepted in return.
352
In the fifth place, the applicant submits that the SRB has not explained how there was a liquidity risk in the case of collateral consisting exclusively of cash and denominated in euros. In that regard, the model agreement on IPCs provides for a mechanism which ensures the healthy liquidity of the SRF, since it stipulates, first, that the SRB has the option to seize, at short notice, cash corresponding to the IPCs provided as collateral and, second, that the SRB has full ownership over that cash and has the option to use it freely in case of non-payment by the institution concerned.
353
In so far as this complaint must also be understood as meaning that, by the complaint, the applicant calls into question the adequacy of the statement of reasons for the contested decision as regards the liquidity risk in the case of collateral consisting exclusively of cash and denominated in euros, it must be observed that there is an overlap between that complaint and the sixth plea, based on a failure to state reasons for the contested decision as regards IPCs. However, as stated in paragraph 341 above, the applicant withdrew that plea at the hearing.
354
Furthermore, if the applicant’s line of argument in relation to this complaint were to be understood as meaning that it claims that the SRB made a manifest error of assessment when it limited the share of IPCs to 15% of the amount of the ex ante contributions, even though the related collateral consists exclusively of cash and therefore does not present any liquidity risk having regard to the model agreement on IPCs, the following must be noted.
355
First, although it is established that collateral for IPCs consisting exclusively of cash constitutes low-risk assets on account of the possibility of liquidating it at short notice, that fact does not call into question the considerations set out in paragraphs 347 to 349 above, under which the SRB was entitled to take the view, in the particular circumstances marking the period in question and without making a manifest error of assessment, that an IPC rate greater than 15% of the total amount of the ex ante contributions could have long-term pro-cyclical effects for the institutions.
356
Second, the applicant wrongly relies on the model agreement on IPCs to claim that the SRB should have authorised a share of IPCs of more than 15% because it is stated in that model that the SRB has full ownership of the cash transferred, such that that cash constitutes low-risk assets.
357
It is true that the model agreement on IPCs does provide, in Article 3.1 thereof, that, in order to secure the full and punctual payment of the secured obligation, the institution is to constitute cash collateral in favour of the SRB and to transfer full ownership to it of an amount in cash equal to the IPC amount and, in Article 3.5 thereof, that the SRB has full ownership of the cash transferred and that it is entitled to use that cash freely, subject to the obligation to return the corresponding amount of cash collateral in case of payment of the secured obligations when due.
358
However, Articles 2, 5 and 6 of the model agreement on IPCs lay down a procedure by which the SRB calls for payment of the IPC and the consequences for the institution concerned.
359
In Articles 2.1 and 2.2 of the model agreement on IPCs, it is provided that the SRB is to send the institution a notice requesting the payment of the IPC. Article 5 of the same model agreement states that, upon receipt of payment of the called amount, the SRB is to return an amount of cash collateral equal to the amount called and paid. Article 6 of the model agreement on IPCs states, inter alia, that, in case of failure of the institution to pay on first demand, the SRB is entitled to seize and apply the cash collateral in discharge of the secured obligations and may, in particular, in that regard, proceed to a set-off between the amount of the secured obligations unpaid and its obligation to repay the cash collateral.
360
It follows from the analysis of the provisions of the model agreement on IPCs that, even though the SRB has full ownership of the cash collateral for the IPCs, it can mobilise that cash collateral, in favour of the SRF, only by following a specific procedure.
361
In those circumstances, the SRB was entitled to take the view, in accordance with Article 7(1) of Implementing Regulation 2015/81, that such IPCs did not provide the same degree of collateral as far as concerned the financial capacity and liquidity of the SRF as an immediate cash payment.
362
In the sixth place, while the applicant claims that the SRB did not mention the possibility of using types of assets other than cash which could nevertheless be regarded as being low risk and unencumbered by any third-party rights, it did not specify which other types of assets would provide collateral comparable to cash and not jeopardise the financial capacity or liquidity of the SRF. That argument must therefore be dismissed.
363
In those circumstances, the applicant has not shown that the SRB made manifest errors of assessment or an error of law when it limited the use of IPCs to 15% of the amount of the ex ante contributions due in respect of the 2021 contribution period and the collateral provided in respect of the IPCs to cash only.
364
The seventh and eighth pleas must therefore be dismissed.
D. Conclusion
365
Since the third part of the third plea and the fourth and fifth pleas, in so far as they are directed directly against the contested decision, are well founded, the contested decision must be annulled in so far as it concerns the applicant.
E. Limitation of the temporal effects of the judgment
366
The SRB asks the Court, in the event that the contested decision is annulled, to 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 has become final.
367
The applicant observed during the hearing that any annulment of the contested decision on account of unlawfulness as regards its substance should result in the SRB returning to it the amount of its ex ante contribution. In addition, it claimed that such an annulment would have no impact on the functioning of the SRB or on the financial stability of the European Union, because the SRF is at a very advanced stage in its constitution.
368
It must be recalled that, under the second paragraph of Article 264 TFEU, the European Union judicature may, if it considers this necessary, state which of the effects of the act which it has declared void are to be considered as definitive.
369
In that regard, it follows from case-law that, on grounds of legal certainty, the effects of such an act may be maintained, in particular where the immediate effects of its annulment would give rise to serious negative consequences and where the lawfulness of the act in question is contested not because of its aim or content, but on grounds of infringement of essential procedural requirements (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 175 and the case-law cited).
370
In the present case, the contested decision was taken in infringement of essential procedural requirements. However, the Court has not found, in the present proceedings, any error affecting the lawfulness of that decision as regards to the substance.
371
In addition, 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), it must be found that to annul the contested decision without providing for its effects to be maintained until it is replaced by a new act could undermine the implementation of Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63, which form an integral part of the banking union, thereby contributing to the stability of the euro area.
372
In those circumstances, the Court considers it appropriate to maintain the effects of the contested decision at issue, in so far as it concerns the applicant, 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 the applicant’s ex ante contribution to the SRF for the 2021 contribution period.
Costs
373
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.
374
The Parliament, the Council and the Commission are to bear their own costs, in accordance with Article 138(1) of the Rules of Procedure.
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 La Banque postale;
2.
Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns La Banque postale, 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 the applicant’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 La Banque postale;
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 20 December 2023.
[Signatures]
Table of contents
I. Background to the dispute
II. Contested decision
III. Forms of order sought
IV. Law
A. The pleas of inadmissibility
B. The pleas of illegality in respect of Regulation No 806/2014, Delegated Regulation 2015/63 and Implementing Regulation 2015/8
1. The first plea, alleging breach of the principle of equal treatment
(a) The first and second parts, based on the failure to take account of the differences between the situations of the institutions in the banking union and on the unjustified exclusion of covered deposits from the basis for calculating the basic annual contribution
(1) The first complaint of the first part, based on the failure to take account of the differences between the situations of the banking sectors of the participating Member States, and the second part, relating to the unjustified exclusion of covered deposits from the basis for calculating the basic annual contribution
(2) The second complaint of the first part, based on the inconsistency connected with the failure to take into consideration the assessment criteria used in the context of the SSM
(b) The third part, based on the unjustified non-deduction of the eligible liabilities satisfying the prudential requirements in respect of the MREL
(c) The fourth part, based on the fact that the ex ante contributions are not representative of the risk actually borne on account of the criteria for calculation of the risk adjusting multiplier
(1) The first complaint, based on the failure to take account of the inherent overall risk profile of each institution
(2) The second complaint, based on the failure to assess the risk factors in the light of the requirements imposed by the supervisory authority in the context of the SSM
(3) The third complaint, based on the impossibility of taking overall account of each individual specific aspect of each institution
2. The second plea, alleging breach of the principle of proportionality
3. The third plea, alleging breach of the principle of legal certainty
(a) The first part, based on the impossibility of ascertaining the level of the ex ante contribution in advance
(b) The second part, based on the lack of foreseeability as regards the application of certain risk indicators
(c) The third part, based on the rules for determining the ‘rate of growth of covered deposits’
(d) The fourth part, alleging infringement of Article 290 TFEU by the calculation criteria defined in Delegated Regulation 2015/63
4. The fourth and fifth pleas, alleging breach of the principle of good administration and breach of the principle of effective judicial protection, in so far as they include a plea of illegality
C. The pleas concerning the lawfulness of the contested decision
1. The statement of reasons for the determination of the annual target level
2. The remainder of the fourth and fifth pleas, alleging breach of the principle of good administration and breach of the principle of effective judicial protection by the SRB in the contested decision
3. The seventh and eighth pleas, alleging manifest errors of assessment and an error in law resulting from the limitations imposed on the use of IPCs
D. Conclusion
E. Limitation of the temporal effects of the judgment
Costs
(
*1
)	Language of the case: French.