1 By its appeal, Credito Fondiario SpA seeks the annulment of the order of the General Court of the European Union of 19 November 2018, Credito Fondiario v SRB (T‑661/16, not published, EU:T:2018:806; ‘the order under appeal’), by which it dismissed its action seeking, first, annulment of the decision of the Single Resolution Board (SRB) in its executive session of 15 April 2016 on the 2016 ex ante contributions to the Single Resolution Fund (SRF) (SRB/ES/SRF/2016/06) (‘the first contested decision’) and of the decision of the SRB in its executive session of 20 May 2016 on the adjustment of the 2016 ex ante contributions to the SRF, supplementing the first contested decision (SRB/ES/SRF/2016/13) (‘the second contested decision’ and, together with the first contested decision, ‘the contested decisions’), in so far as they concern it and, second, a finding of unlawfulness of Article 5(1)(f) 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) and Annex I thereto or, as the case may be, that delegated regulation as a whole.
2 Article 54(1) 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), provides as follows: ‘The Board, in its executive session, shall: (a) prepare all of the decisions to be adopted by the Board in its plenary session; (b) take all of the decisions to implement this Regulation, unless this Regulation provides otherwise.’
3 Article 70 of Regulation No 806/2014, entitled ‘Ex-ante contributions’, states in paragraph 2: ‘Each year, the Board shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level. Each year the calculation of the contributions for individual institutions shall be based on: (a) a flat contribution, that is pro-rata based on the amount of an institution’s liabilities 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 the participating Member States; and (b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of Directive 2014/59/EU, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States. The relation between the flat contribution and the risk-adjusted contributions shall take into account a balanced distribution of contributions across different types of banks. In any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States, calculated under points (a) and (b), shall not exceed annually the 12.5% of the target level.’
4 Article 5 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 (OJ 2015 L 15, p. 1) states: ‘1. The Board shall communicate to the relevant national resolution authorities its decisions on calculation of annual contributions of the institutions authorised in their respective territories. 2. After receiving the communication referred to in paragraph 1, each national resolution authority shall notify each institution authorised in its Member State of the Board’s decision on calculation of the annual contribution due from that institution.’
5 According to Article 5(1) of Delegated Regulation (EU) 2015/63: ‘The contributions referred to in Article 103(2) of Directive 2014/59/EU shall be calculated by excluding the following liabilities: … (f) in the case of institutions operating promotional loans, the liabilities of the intermediary institution towards the originating or another promotional bank or another intermediary institution and the liabilities of the original promotional bank towards its funding parties in so far as the amount of these liabilities is matched by the promotional loans of that institution.’
6 The background to the dispute was set out in paragraphs 1 to 10 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.
7 By the first contested decision, the SRB, in its executive session of 15 April 2016, approved the 2016 ex ante contributions to the SRF. That decision was notified to the national resolution authorities (‘NRAs’) responsible for raising individual contributions from the banks concerned in their territories.
8 In that context, the Banca d’Italia (Bank of Italy), as the Italian national resolution authority, informed the appellant, by Communication No 585762/16 of 3 May 2016, received on the same day, that the SRB had adopted its 2016 ex ante contribution to the SRF and indicated the amount thereof.
9 By the second contested decision, the SRB, in its executive session of 20 May 2016, adjusted the 2016 ex ante contributions to the SRF and increased the appellant’s contribution.
10 That second decision was also notified to the NRAs and, by Communication No 709489/16 of 27 May 2016, received on 30 May 2016, the Banca d’Italia informed the appellant of the need to pay the amount of the increase thus decided.
11 The appellant requested an explanation from the Banca d’Italia as to the method of calculation and the reasons for the amount of its contribution.
12 On 15 June 2016, the appellant informed the Banca d’Italia and the SRB that it had brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio, Italy) seeking, after interim measures have been granted, the annulment of Communications No 585762/16 and No 709489/16 of the Banca d’Italia. In those proceedings, the Banca d’Italia annexed the contested decisions to its defence lodged on 8 July 2016.
13 By order of 14 July 2016, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio) dismissed the appellant’s application for interim measures.
14 By application lodged at the Registry of the General Court on 19 September 2016, the appellant brought the action referred to in paragraph 1 above.
15 In support of its action, the appellant put forward seven pleas in law alleging (i) failure to notify the contested decisions, (ii) failure to state reasons for those decisions and infringement of the principle of audi alteram partem, (iii) misapplication of Article 5(1)(f) of Delegated Regulation 2015/63, (iv) infringement of Article 4(1) and Article 6 of that delegated regulation, (v) infringement of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, (vi) infringement of the principles of proportionality and legal certainty and (vii) infringement of Article 16 of the Charter of Fundamental Rights of the European Union.
16 By the order under appeal, adopted on the basis of Article 126 of its Rules of Procedure, the General Court, without ruling on the pleas in law put forward by the appellant, dismissed the action as manifestly inadmissible and ordered the appellant to pay the costs.
17 The appellant claims that the Court should: - set aside the order under appeal and refer the case back to the General Court; - order the SRB to bear the costs of both sets of proceedings; and - in the alternative, set aside the order under appeal in so far as the General Court ordered it to pay the costs of the SRB, and make an equitable decision as to the costs of the proceedings at first instance.
18 The SRB claims that the Court should: - declare the appeal inadmissible in part or, in any case, unfounded, and - order the appellant to pay the costs of the present proceedings and of the proceedings before the General Court.
19 The Italian Republic asks the Court to uphold the appeal and set aside the order under appeal.
20 The European Commission contends that the Court should: - dismiss the appeal as regards the admissibility of the action brought at first instance against the first contested decision; - make an appropriate order as to the admissibility of the appeal brought at first instance against the second contested decision; and - in the event of the appeal being dismissed, order the appellant to pay the costs of these proceedings and of the proceedings at first instance.
21 In support of its appeal, the appellant raises five grounds of appeal. The first ground of appeal alleges an error in the legal characterisation of the facts as regards the date on which the appellant became aware of the contested decisions and an error in the legal characterisation of the facts as regards the assessment that the period within which it acted was unreasonable. The second ground of appeal alleges an error of law in the interpretation and application of the case-law relating to the reasonable period within which, in the absence of publication or notification of the act to be contested, the person concerned must request communication thereof. The third ground of appeal alleges infringement of Article 126 of the Rules of Procedure of the General Court and of the appellant’s rights of defence. The fourth ground of appeal alleges an error of law in the assessment of the application based on Article 277 TFEU. Finally, should the Court of Justice dismiss the appeal, the fifth ground of appeal, put forward in the alternative, seeks to have the order under appeal set aside in so far as the General Court ordered the appellant to bear its own costs and to pay the costs of the SRB.
22 By the first and second grounds of appeal, which should be dealt with together, the appellant, supported in essence by the Italian Republic, claims that the General Court committed an error in law in interpreting and applying the case-law relating to the reasonable period within which, in the absence of publication or notification of the act to be contested, the person concerned must request that it be communicated, as well as two errors in the legal characterisation of the facts.
23 First, the General Court, on the basis of erroneous information, erred in its legal characterisation of the facts as to the date on which the appellant became aware of the existence of the contested decisions. Moreover, since the General Court did not indicate on what grounds the ‘close cooperation’ between the SRB and the NRAs was irrelevant in this respect, the contested order is, it is claimed, inadequately reasoned.
24 Second, the case-law cited by the General Court as regards the reasonable period within which, in the absence of publication or notification of the act to be contested, the person concerned must request communication thereof is irrelevant and the General Court erred in its legal characterisation of the facts in holding that the appellant had not acted within a reasonable period in order to request communication of the contested decisions.
25 The SRB submits that the first and second grounds of appeal are inadmissible on the ground that the appellant puts forward the same arguments in support of those grounds and challenges the factual findings of the General Court without alleging distortion of the facts or of the evidence.
26 The SRB claims that, in any event, those grounds are unfounded. In addition to the fact that the General Court did not err in finding that the appellant had been aware of the existence of the contested decisions through the Banca d’Italia’s Communications No 585762/16 and No 709489/16, the order under appeal is, in that regard, sufficiently reasoned and the appellant does not claim to have requested communication of those decisions or to have taken specific steps to that end.
27 Furthermore, the General Court correctly recalled the case-law relating to the reasonable period within which the party concerned must request communication of the act to be contested, but that Court did not apply it in the present case and therefore did not err in that regard.
28 The Commission supports the SRB but, on the merits, defers to the Court’s assessment with regard to the second contested decision.
29 As regards the admissibility of the first and second grounds of appeal, it should be noted, first, that the appellant raises separate arguments in support of the error of law relied on. Second, it does not contest the factual findings of the General Court with regard to the relevant dates, but claims, in essence, that those dates could not be regarded by the General Court as being those on which it had become aware of the existence of the contested decisions for the purposes of Article 263 TFEU. Consequently, it relies on two errors of the General Court in the legal characterisation of the facts, which is a question of law that may be raised in the context of an appeal and which is subject to review by the Court of Justice (see judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 49, and of 23 November 2017, Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:886, paragraph 55 and the case-law cited).
30 It follows that the first and second grounds of appeal are admissible.
31 As regards the substance, it should be recalled that, in order to declare the action based on Article 263 TFEU for annulment of the contested decisions to be manifestly inadmissible, the General Court, having established that those decisions had not been published or notified to the appellant, who was not an addressee of those decisions, stated that, according to the case-law, in such a case the time limit for bringing an action only runs from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based, provided that it requests the full text of that decision within a reasonable period. In that context, the General Court found that the appellant had become aware of the existence of the contested decisions, on 3 May and 30 May 2016 respectively, through the Banca d’Italia’s Communications No 585762/16 and No 709489/16, and that it had not requested that those decisions be communicated to it at all, let alone within a reasonable period. Since the appellant neither relied on nor established the existence of unforeseeable circumstances or force majeure which would allow the time limit for bringing an action to be waived, the General Court held that the action under Article 263 TFEU, brought on 19 September 2016, was manifestly out of time and had to be dismissed as manifestly inadmissible.
32 In the first place, in order to determine whether the General Court erred in its legal characterisation of the facts as regards the dates on which the appellant became aware of the existence of the contested decisions, it should be borne in mind that the General Court relied, in paragraphs 38 and 39 of the order under appeal, on two factors.
33 Thus, first, the General Court pointed out that the documents and questionnaires received by the appellant, in order for it to provide the data enabling its individual contribution to the SRF to be calculated, mentioned the applicable legal bases and informed the appellant that such a contribution was calculated by the SRB. Second, the General Court referred to Communications No 585762/16 and No 709489/16 of the Banca d’Italia, brought to the appellant’s attention on 3 May and 30 May 2016 respectively, which stated that its contribution, calculated by the SRB, was intended for the SRF.
34 However, the General Court could, without committing an error, legally infer from those communications, sent to the appellant when it had already received and completed the documents and questionnaires necessary for the calculation of the individual contributions by the SRB, that the appellant had become aware of the existence of the contested decisions on 3 May and 30 May 2016 respectively.
35 That assessment is not called into question by the appellant’s arguments.
36 First, the fact that the appellant did not have full knowledge of the reasons for the contested decisions until 8 July 2016, that is to say, when the Banca d’Italia, in the context of the proceedings brought by the appellant before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio), lodged its statement of defence to which those decisions were annexed, in no way implies that it was unaware of the existence of those decisions before that date.
37 Second, it is irrelevant that the Banca d’Italia, in its Communications No 585762/16 and No 709489/16, did not indicate precisely the dates of adoption of the contested decisions or mention the applicable EU legislation and the correct legal bases. Not only do those circumstances not concern the appellant’s awareness of the existence of the contested decisions, but, above all, they do not prevent the appellant from having become aware of the existence of those decisions through the factors mentioned by the General Court in paragraphs 38 and 39 of the order under appeal.
38 Third, since, in paragraph 30 of the order under appeal, the General Court determined that the SRB was the author of the contested decisions without drawing any conclusion as to the date on which the appellant became aware of those decisions, the lack of reasoning alleged by the appellant is irrelevant with regard to the legal characterisation of the facts.
39 It follows that the General Court correctly drew the consequences from its own findings of fact and did not err in its legal characterisation of the facts by considering that the appellant had knowledge of the existence of the contested decisions on 3 May and 30 May 2016.
40 In the second place, the appellant submits that the General Court, first, erred in law in that it misinterpreted and misapplied the case-law relating to the reasonable period within which, in the absence of publication or notification of the measure to be contested, the person concerned must request communication of it and, second, erred in its legal characterisation of the facts by holding that the appellant had not requested communication of the contested decisions within a reasonable period.
41 In that regard, it is sufficient to note that the General Court did not base the inadmissibility of the action for annulment on the fact that the appellant had not requested communication of the contested decisions within a reasonable period and therefore did not apply that case-law. In paragraph 47 of the order under appeal, the General Court pointed out that, after becoming aware of the existence of those decisions, the appellant did not request that they be communicated to it.
42 It follows that the General Court could not have committed any errors in the light of that case-law.
43 In those circumstances, the first and second grounds of appeal must be rejected as unfounded.
44 By the third ground of appeal, alleging infringement of Article 126 of the Rules of Procedure of the General Court and of its rights of defence, the appellant challenges the manifest inadmissibility of its action at first instance and adds that it was dismissed without the appellant having been able to take a position on inadmissibility, which, moreover, had not been pleaded by the SRB.
45 The SRB doubts the admissibility of that ground of appeal and considers that it is, in any event, unfounded. The Commission contends that the second ground of appeal is inadmissible.
46 As regards the admissibility of the third ground of appeal, it should be noted, first, that the appellant put forward detailed arguments that its action at first instance was not manifestly inadmissible and concerning the infringement of its rights of defence and, second, that the question whether the General Court infringed Article 126 of its Rules of Procedure is a question of law which is subject to review by the Court of Justice (see, by analogy, judgment of 1 July 1999, Alexopoulou v Commission, C‑155/98 P, EU:C:1999:345, paragraphs 9 to 15; see, to that effect, judgment of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraphs 21 to 24).
47 It follows that that ground of appeal is admissible.
48 As regards the substance, in the first place, with respect to the alleged infringement of Article 126 of the Rules of Procedure of the General Court, it should be pointed out that, if the General Court considers that it has been sufficiently informed by the documents in the file, it may at any time decide to give judgment by way of reasoned order based on that provision (see, to that effect, order of 29 October 2004, Ripa di Meana v Parliament, C‑360/02 P, EU:C:2004:690, paragraph 35).
49 It should also be pointed out that manifest inadmissibility in the context of the application of Article 126 of the Rules of Procedure of the General Court may be obvious not only in the sense that it is detected at an early stage of the proceedings with regard, in particular, to the document instituting the proceedings, but also in the sense that it is not in doubt, having regard, in particular, to the settled case-law of the Court of Justice.
50 It must be noted that, in the present case, in order to declare the action manifestly inadmissible, the General Court relied, in paragraphs 36 and 51 of the order under appeal, on settled case-law.
51 In that regard, the appellant’s argument that the inadmissibility of the action at first instance, on the ground of being out of time, was not manifest, in so far as it resulted not from the infringement of the two-month time limit for bringing an action, but from the assessment of the reasonableness of the time limit within which the person concerned must request communication of the contested act, cannot succeed.
52 It is clear from paragraph 47 of the order under appeal that, since the appellant did not request communication of the contested decisions, the General Court did not assess the reasonableness of the time limit in the present case.
53 Moreover, contrary to what the appellant claims, the fact that the case was heard by the General Court, that it granted applications to intervene and that it had recourse to measures of organisation of procedure and measures of inquiry did not prevent it from adopting an order of manifest inadmissibility based on Article 126 of its Rules of Procedure. In particular, recourse to such measures, which are intended, inter alia, to enable the preparation of cases and the conduct of proceedings, is not, in itself, capable of precluding an order from being adopted on such a basis (see, to that effect, judgment of 19 January 2006, AIT v Commission, C‑547/03 P, EU:C:2006:46, paragraphs 28 to 30).
54 Finally, since the admissibility of the action is a matter of public policy which must be raised by the General Court, the adoption of an order under Article 126 of the Rules of Procedure of the General Court is not subject to the defendant contesting the admissibility of the action. Accordingly, in the present case, it is immaterial, for the purposes of assessing the manifest nature of the inadmissibility, that the SRB, the defendant in the action before the General Court, did not plead that the action was out of time (see, to that effect, order of 17 July 2014, Melkveebedrijf Overenk and Others v Commission, C‑643/13 P, not published, EU:C:2014:2118, paragraph 38).
55 Consequently, the General Court did not err in law in holding that the action was manifestly inadmissible within the meaning of Article 126 of its Rules of Procedure.
56 In the second place, as regards the alleged infringement of the appellant’s rights of defence, it must be pointed out that, according to settled case-law, the application of the procedure laid down in Article 126 of the Rules of Procedure of the General Court does not in itself prejudice the right to proper and effective judicial process, since that provision is applicable only to cases in which the action brought before the General Court is manifestly inadmissible (see, by analogy, judgment of 19 February 2009, Gorostiaga Atxalandabaso v Parliament, C‑308/07 P, EU:C:2009:103, paragraph 36 and the case-law cited).
57 It follows from paragraphs 43 and 55 of the present judgment that the General Court did not err in concluding that the action was manifestly inadmissible. Consequently, the appellant’s argument that, first, the adoption of an order based on Article 126 of the Rules of Procedure of the General Court resulted in infringement of its rights of defence and, second, that Article 129 of the Rules of Procedure of the General Court constituted a more appropriate legal basis in the present case, in that it guarantees respect for the rights of defence, cannot succeed.
58 In the light of the foregoing considerations, the third ground of appeal must be rejected as unfounded.
59 By its fourth ground of appeal, the appellant claims that the General Court erred in law in holding that the application based on Article 277 TFEU was inadmissible on the ground that the action based on Article 263 TFEU was manifestly inadmissible.
60 The SRB, supported by the Commission, challenges the merits of that ground.
61 After pointing out that the possibility of relying on the unlawfulness of an act of general application under Article 277 TFEU does not constitute an independent right of action, and recourse may not be had to it in the absence of an independent right of action, the General Court held that the appellant’s application to have Delegated Regulation 2015/63 partially or in its entirety declared unlawful, was manifestly inadmissible since there is no independent right of action to plead the illegality of a measure of general application.
62 Furthermore, the General Court pointed out that, since such an application was implicitly but necessarily aimed at obtaining a finding of illegality in the context of an application for annulment of the contested decisions, the manifest inadmissibility of the action for annulment, in so far as it was directed against those decisions, led to the inadmissibility of the plea of illegality.
63 In the context of the fourth ground of appeal, the appellant confines itself to submitting, with reference to the arguments put forward in support of its first two grounds of appeal, that the General Court erred in finding that the application based on Article 263 TFEU was inadmissible. It concludes that the General Court relied on an erroneous premiss in dismissing as manifestly inadmissible the application under Article 277 TFEU for a declaration that the Delegated Regulation 2015/63 is unlawful, in whole or in part.
64 However, it follows from the rejection of the first three grounds of appeal that the General Court’s finding that the action under Article 263 TFEU was manifestly inadmissible has not been called into question. Accordingly, the General Court rightly held, in accordance with settled case-law, that the inadmissibility of the main action led to the inadmissibility of the plea of illegality based on Article 277 TFEU (see orders of 28 June 1993, Donatab and Others v Commission, C‑64/93, EU:C:1993:266, paragraphs 19 and 20, and of 8 December 2006, Polyelectrolyte Producers Group v Commission and Council, C‑368/05 P, not published, EU:C:2006:771, paragraph 72).
65 Consequently, the fourth ground of appeal must be rejected.
66 In the alternative, and in the event that the Court dismisses the appeal, the appellant seeks to have set aside the order under appeal in so far as the General Court ordered it to bear its own costs and to pay the costs of the SRB. Since the SRB’s conduct contributed to prolonging the investigation of the case before the General Court and increasing the costs, the appellant claims that the Court should have made use of the possibilities provided for in Article 135 of its Rules of Procedure.
67 The SRB and the Commission contend that that ground of appeal is inadmissible. The SRB adds that it is, in any event, unfounded.
68 In accordance with settled case-law, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of the second paragraph of Article 58 of the Statute of the Court of Justice of the European Union, which provides that no appeal is to lie regarding only the amount of the costs or the party ordered to pay them (judgment of 30 January 2020, České dráhy v Commission, C‑538/18 P and C‑539/18 P, not published, EU:C:2020:53, paragraphs 85 and 86 and the case-law cited).
69 In the present case, since the first four grounds of appeal have been rejected, the fifth and last ground of appeal, relating to the allocation of costs, must therefore be declared inadmissible.
70 It follows from all of the foregoing considerations that the present appeal must be dismissed in its entirety.
71 In accordance with the Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
72 Since the SRB has applied for the appellant to be ordered to pay the costs and the appellant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the SRB.
73 In accordance with Article 140(1) of those rules, under which Member States and institutions which have intervened in the proceedings are to bear their own costs, the Italian Republic and the Commission must be ordered to bear their own costs.