1 By its appeal, NRW.Bank seeks the annulment of the judgment of the General Court of the European Union of 26 June 2019, NRW.Bank v SRB (T‑466/16, not published, EU:T:2019:445) (‘the judgment under appeal’) by which that court dismissed its action seeking, first, the 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, secondly, the annulment 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’, together with the first contested decision, ‘the contested decisions’) in so far as they concern it.
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 67(4) of Regulation No 806/2014 provides: ‘Contributions referred to in Articles 69, 70 and 71 shall be raised from entities referred to in Article 2 by the national resolution authorities and transferred to the [SRF] in accordance with the Agreement [between the participating Member States].’
4 Article 69 of that regulation, entitled ‘Target level’, provides, in paragraph 1 thereof: ‘By the end of an initial period of eight years from 1 January 2016 or, otherwise, from the date on which this paragraph is applicable by virtue of Article 99(6), the available financial means of the [SRF] shall reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States.’
5 Article 70 of Regulation No 806/2014, entitled ‘Ex-ante contributions’, provides, in paragraphs 1 and 2 thereof: ‘1. The individual contribution of each institution shall be raised at least annually and shall be calculated pro-rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. 2. Each year, the Board shall, after consulting the [European Central Bank (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 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)], 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.’
6 Article 5(1) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive [2014/59] with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44), provides: ‘The contributions referred to in Article 103(2) of Directive [2014/59] shall be calculated by excluding the following liabilities: … (b) the liabilities created by an institution, which is member of an [institutional protection scheme (IPS)] as referred to in point (8) of Article 2(1) of Directive [2014/59] and which has been allowed by the competent authority to apply Article 113(7) of [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)], through an agreement entered into with another institution which is member of the same IPS; … (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 promotional bank towards its funding parties in so far as the amount of these liabilities is matched by the promotional loans of that institution.’
7 Annex I to Delegated Regulation 2015/63, entitled ‘Procedure for the calculation of the annual contributions of institutions’, sets out the formula and procedures for, and the steps in the calculation of those contributions. Step 6 in the calculation, entitled ‘Calculation of the annual contributions’ is set out as follows: ‘1. The resolution authority shall rescale the final composite indicator resulting from Step 5, FCIn, over the range defined in Article 9 by applying the following formula: where the arguments of the minimum and the maximum functions shall be the values of all institutions, contributing to the resolution financing arrangement, for which the final composite indicator is calculated. 2. The resolution authority shall compute the annual contribution of each institution n, except in respect of institutions which are subject to Article 10 and except for the lump-sum portion of the contributions of institutions to which Member States apply Article 20(5), as: where: p, q index institutions; Target is the annual target level as determined by the resolution authority in accordance with Article 4(2), minus the sum of the contributions calculated in accordance with Article 10 and minus the sum of any lump sum that may be paid under Article 20(5); Bn is the amount of liabilities (excluding own funds) less covered deposits of institution n, as adjusted in accordance with Article 5 and without prejudice to the application of Article 20(5).’
8 Article 5 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation No 806/2014 (OJ 2015 L 15, p. 1) provides: ‘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.’
9 The background to the dispute is set out in paragraphs 1 to 9 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.
10 NRW.Bank is the promotional bank of the Land Nordrhein-Westfalen (Land of North Rhine-Westphalia, Germany). In essence, it carries on three types of activity: promotional activities, ancillary promotional activities and other activities.
11 In the course of 2015, before Regulation No 806/2014 came into force and in accordance with Directive 2014/59, as supplemented by Delegated Regulation 2015/63, the German regulatory authority, the Bundesanstalt für Finanzmarktstabilisierung (Federal Agency for Financial Market Stabilisation, Germany) (‘the FMSA’), set the appellant’s ex ante contribution for 2015, pursuant to Article 103 of that directive, taking the view that both its promotional activities and its ancillary promotional activities should be excluded from calculation of that contribution.
12 In the course of 2016, on the form entitled ‘Ex ante contributions to the [SRF] - Declaration form for the 2016 contribution period’, created by the SRB and sent by the FMSA to the appellant, the appellant initially declared the total of all its commitments relating both to its promotional activities and to its ancillary promotional activities as liabilities to be excluded from calculation of its ex ante contributions for 2016 for the purposes of Article 5(1) of Delegated Regulation 2015/63. However, after being informed that, according to the SRB, ancillary development activity should not be excluded from the calculation, the appellant filed a corrected declaration according to which only the total value of its commitments associated with its promotional activities was to be excluded from the calculation.
13 By the first contested decision, at its executive session of 15 April 2016, the SRB established, on the basis of Article 54(1)(b) and Article 70(2) of Regulation No 806/2014, the amount of the ex ante contribution of each of the entities referred to in Article 2 of that regulation, including the appellant, for the year 2016.
14 By an assessment notice of 22 April 2016, which the appellant received on 25 April 2016, the FMSA informed the appellant that the SRB had set its 2016 ex ante contribution to the SRF and indicated the amount to be paid.
15 By the second contested decision, at its executive session of 20 May 2016, the SRB adjusted the ex ante contributions to the SRF for 2016, increasing the appellant’s contribution.
16 By assessment notice of 10 June 2016, which the appellant received on 13 June 2016, the FMSA informed the appellant that it had to pay the amount of the increase, mentioned in the preceding paragraph of this judgment, resulting from the second contested decision.
17 By document lodged at the Registry of the General Court on 23 August 2016, the appellant brought an action disputing the amount of its ex ante contribution to the SRF for 2016, in that ancillary promotional activities had not received preferential treatment and, as a result, its contribution had been set too high. In support of its action, it alleged, in substance, infringement of Article 103(2) and (7) of Directive 2014/59, of Article 70(2) of Regulation No 806/2014 and of the regulations implementing those acts, as well as the unlawfulness of those regulations.
18 By decisions of 10 and 11 January 2017, the President of the Eighth Chamber of the General Court granted the applications of the European Commission and the Council of the European Union to intervene in support of the form of order sought by the SRB.
19 By the judgment under appeal, the General Court, without ruling on the pleas put forward by the appellant, dismissed the action as inadmissible and ordered the appellant to pay the costs.
20 The appellant claims that the Court should: - set aside the judgment under appeal and annul the SRB’s decision determining its annual contribution to the SRF for 2016; - in the alternative, set aside the judgment under appeal and refer the case back to the General Court, and - order the SRB to pay the costs.
21 The SRB contends that the Court should: - dismiss the appeal as partly inadmissible and, in any event, unfounded; - order the appellant to pay the costs of the appeal and of the proceedings before the General Court, and - in the event that the Court should find the appeal to be well founded, refer the case back to the General Court for final judgment and reserve the decision on the costs of the appeal.
22 The Council requests the Court, in the event that it sets aside the judgment under appeal, to find that there is nothing to call into question the lawfulness or validity of Implementing Regulation 2015/81.
23 The Commission requests the Court to: - dismiss the appeal and - order the appellant to pay the costs.
24 In support of its appeal, the appellant puts forward two grounds, alleging, first, infringement of the sixth paragraph of Article 263 TFEU and of Article 60 of the Rules of Procedure of the General Court and, secondly, infringement of its right to be heard.
25 By its first ground of appeal, the appellant argues that the General Court infringed the sixth paragraph of Article 263 TFEU and Article 60 of its Rules of Procedure by holding that it had failed to comply with the time limit for bringing an action for annulment. That ground of appeal is divided into four parts, the first of which is put forward as the appellant’s principal argument, while the other three are raised in the alternative.
26 In the first and second parts of its first ground of appeal, which it is appropriate to consider together, the appellant submits, in essence, that the General Court erred in law, since the time limit for bringing an action was observed, irrespectively of how the scope of the second contested decision might be assessed.
27 The appellant argues, first, that the second contested decision is a new substantive decision and not merely a decision confirming the first contested decision. The contested decisions set for the appellant annual contributions of different amounts, and consequently its legal situation was altered by the second contested decision. Moreover, the second contested decision was based on new factors, including an amended analysis of one essential partial indicator, and it did not, therefore, merely correct a calculation error.
28 Secondly, the appellant maintains that, even if the second contested decision did not entirely replace the first contested decision, but simply amended it, its action against the second contested decision was still not brought out of time. In that context, it argues that the General Court failed consider the import of the judgment of 18 October 2007, Commission v Parliament and Council (C‑299/05, EU:C:2007:608), concerning the amendment of legislation, and failed to state the reasons for which the principles flowing from that judgment should not apply in the present case, the judgment being clear that the amendment of a legislative act, even a final act, gives rise to a fresh time limit for bringing an action as regards not only the amended provision, but all the provisions which form a whole together with it.
29 The SRB argues that the appellant is in essence challenging the General Court’s assessment of the facts and that its line of argument is inadmissible. It adds that the second contested decision is not based on any new factor relating to the subject matter of the dispute, which is to say the exclusion of liabilities associated with ancillary promotional activities from the calculation of its ex ante contributions to the SRF for 2016. The calculation of the contributions fixed in that second decision merely rectified an accidental typing error in the calculation formula relating to the IPS indicator for membership of an institutional protection scheme. It did not involve any assessment of new facts or any new legal assessment and, consequently, the second contested decision is a confirmatory act with regard to the subject matter of the dispute. The fact that the contested decisions fix different amounts for the appellant’s contribution does not, therefore, alter the conclusion that, in so far as the subject matter of the dispute is concerned, the second contested decision confirms the first contested decision.
30 As regards the line of argument relating to the precedent set in the judgment of 18 October 2007, Commission v Parliament and Council (C‑299/05, EU:C:2007:608), the SRB submits that it is inadmissible because it lacks specific arguments directed against the judgment under appeal. Moreover, that judgment concerned a legislative act of general application and so it is not relevant in a case concerning an individual decision. Lastly, the appellant has neither alleged nor proved that the unamended parts of the first contested decision form a whole with the parts that were amended by the second contested decision.
31 As they did before the General Court, the Council and the Commission have confined their observations to the validity, interpretation and application of the relevant legislation and, in particular, of Implementing Regulation 2015/81, and merely argue that that regulation and the SRB’s decisions are not vitiated by any legal flaw, without expressing a position on the first ground of appeal.
32 As regards the first contested decision, in the judgment under appeal, after establishing that the contested decisions had been neither published nor notified to the appellant and were not addressed to it, the General Court stated that, in such a case, the period for bringing an action started to run only from the point in time at which the person concerned acquired precise knowledge of the content and grounds of the decision, provided that it requested the full text of the decision within a reasonable period. In that connection, the General Court found that the appellant had acquired knowledge of the existence of the first contested decision when, on 25 April 2016, it received the first assessment notice, and that it had submitted a request to the FMSA to inspect its file on 22 August 2016, that is to say, nearly four months from the date on which it had received the assessment notice. The General Court added that the way in which the FMSA had implemented the contested decisions did not indicate that the second contested decision had replaced the first contested decision. The General Court inferred from that that the action, brought on 23 August 2016, was out of time as regards the first contested decision.
33 As regards the second contested decision, the General Court pointed out that the appellant was, in essence, alleging that the SRB had infringed a number of provisions of the applicable legislation, in so far as it had not excluded its liabilities associated with its ancillary promotional activities from its ex ante contribution to the SRF for 2016. In this connection, the General Court pointed out that the second contested decision contained no new factor and that the SRB had not in any way reconsidered the assessment, already carried out in connection with the adoption of the first contested decision, of whether or not the liabilities associated with the appellant’s ancillary promotional activities should be excluded from the calculation of its contribution, and that the appellant had not made any request for reconsideration of that matter based on substantial new facts, either to the SRB or the FMSA. The General Court concluded from that that the action against the second contested decision was inadmissible on the grounds that, having regard to the subject matter of the dispute, the second contested decision merely confirmed the first contested decision and that the appellant had not adduced any plea in law or argument challenging the second contested decision.
34 In the first place, the SRC’s objections to the admissibility of the appellant’s line of argument must be dismissed.
35 It must first be borne in mind that deciding whether the contested decision was merely confirmatory of an initial decision was a determination of legal characterisation of the facts, which the Court has jurisdiction to review in an appeal. Indeed, according to the settled case-law of the Court of Justice, where the General Court has determined or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review their legal characterisation and the legal conclusions which were drawn from them (judgment of 28 June 2018, Andres (Insolvency of Heitkamp BauHolding) v Commission, C‑203/16 P, EU:C:2018:505, paragraph 77 and the case-law cited).
36 Secondly, it is true that, according to the Court’s case-law, it is apparent from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169 of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment or order of the General Court and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see, inter alia, judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 34, and order of 31 January 2019, Iordăchescu v Parliament and Others, C‑426/18 P, not published, EU:C:2019:89, paragraph 28). An appeal that does not contain any arguments aimed at specifically identifying the error of law by which the judgment or order in question is allegedly vitiated does not satisfy that requirement (judgment of 20 May 2021, Dickmanns v EUIPO, C‑63/20 P, not published, EU:C:2021:406, paragraph 49 and the case-law cited).
37 However, in the present case, the appellant’s line of argument is nether general nor imprecise. On the contrary, it is clear from the appeal that it alleges that the General Court, first of all, erred in law in its characterisation of the second contested decision as an act purely confirmatory of the first contested decision and, consequently, in its determination of whether the action had been brought out of time and, secondly, failed to take account of its arguments relating to the judgment of 18 October 2007, Commission v Parliament and Council (C‑299/05, EU:C:2007:608).
38 In the second place, as regards the characterisation of the second contested decision, it must be borne in mind that it is settled case-law that actions for annulment, provided for under Article 263 TFEU, are available in the case of all measures adopted by the institutions of the European Union, whatever their nature or form, which are intended to have binding legal effects (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 44 and the case-law cited).
39 Moreover, it is also settled case-law that, since confirmatory and purely implementing measures do not produce such legal effects, they fall outside the scope of that article (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 45 and the case-law cited).
40 In order to determine whether an act produces binding legal effects capable of affecting the interests of the complainant, by bringing about a distinct change in the complainant’s legal position, it is necessary to look to the actual substance of that act (judgments of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraphs 51 et 52, and of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 40 and the case-law cited).
41 In this connection it is important to recall that, according to the Court’s case-law, a measure is to be regarded as purely confirmatory of an existing measure if it contains no new factors as compared with the existing measure (judgments of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 69 and the case-law cited, and of 15 November 2018, Estonia v Commission, C‑334/17 P, not published, EU:C:2018:914, paragraph 46 and the case-law cited).
42 In the present case, the contested decisions establish the amount of the ex ante contribution to be paid by each of the entities referred to in Article 2 of Regulation No 806/2014. It is apparent from the information before the Court that, for 2016, after calculating the contributions to the SRF for each of those entities, the SRB then recalculated them, since the IPS indicator for membership of an institutional protection scheme, as referred to in Article 5(1)(b) of Delegated Regulation 2015/63, had been calculated incorrectly. The correction of that calculation error resulted in a new calculation of the ex ante contribution for 2016 for all the institutions, even those not members of an IPS, and the amount of the ex ante contribution to the SRF for 2016 established in the second contested decision reflects the changes resulting from that new calculation.
43 Consequently, as the Advocate General observed in point 87 of his Opinion, the second contested decision does contain a new factor compared with the first contested decision, in that the IPS indicator figure used in the second contested decision is different from that used in the first contested decision.
44 Moreover, even though the contested decisions both concern the same matter, in that they establish the ex ante contributions to the SRF for 2016, their substance is different, in that the amounts of the contributions they set are different.
45 Therefore, by requiring the appellant to pay an ex ante contribution to the SRF in an amount different from that established in the first contested decision, the second contested decision altered the appellant’s legal position in such a way that annulment of that decision would not be the same thing as annulment of the first contested decision (see, to that effect, the judgment of 25 October 1977, Metro SB-Großmärkte v Commission, 26/76, EU:C:1977:167, paragraph 4).
46 The SRB nevertheless maintains that the General Court did not err in law in taking the view that the second contested decision was confirmatory of the first contested decision, in so far as concerns the subject matter of the dispute, since the appellant claims that the SRB made a mistake in not excluding the liabilities associated with its ancillary promotional activities from the calculation of its ex ante contribution to the SRF for 2016, whereas, in the calculation of that contribution, there was no change in so far as concerns the taking into account of liabilities associated with ancillary activities.
47 It should be borne in mind in this connection that, where a provision in an act is amended, a fresh right of action arises, not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it (see, to that effect, the judgment of 18 October 2007, Commission v Parliament and Council, C‑299/05, EU:C:2007:608, paragraphs 29 and 30).
48 Contrary to what the SRB maintains, the unaltered elements in the calculation which resulted, in the first contested decision, in the setting of the ex ante contribution to the SRF for 2016 form a whole with the element in that calculation, namely the IPS indicator, that was altered for the purpose of adopting the second contested decision.
49 It must be borne in mind in this context that the amount of an ex ante contribution to the SRF depends on two factors. First, the aggregate amount of all the individual contributions is determined by reference to the target level defined in Article 69(1) of Regulation No 806/2014. Secondly, in accordance with Article 70(1) and (2) of that regulation, the calculation of the contribution from each institution depends on its size, in terms of own liabilities, and the level of risk of its activities (see, by analogy, the judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraphs 77 to 79). Within that framework, Articles 6 to 12 of Delegated Regulation 2015/63 set out the methodology for evaluating the liabilities of institutions and assessing their risk profile.
50 It is apparent from the procedure for the calculation of individual contributions set out in Annex I to Delegated Regulation 2015/63, and from step 6 of that calculation in particular, that, after determining an institution’s liabilities and risk factor, by reference to the various indicators stipulated in the legislation, the SFB divides the amount corresponding to the target level among the various institutions.
51 Consequently, while it is true that some indicators, such as the IPS indicator, apply only to some institutions and influence the determination of the liabilities or risk factor of those institutions, to the exclusion of other institutions, the fact remains that, since the target level is divided among all the institutions, a change in one such indicator will alter the amounts of the contributions from the institutions to which that indicator applies and will necessarily affect the contributions of all the institutions.
52 It follows that, in accordance with the case-law mentioned in paragraph 47 of this judgment, a change in one of the elements in the calculation of an ex ante contribution to the SRF, such as the IPS indicator, will give rise to a fresh time limit for bringing an action as regards not only that element of the calculation of the contribution, but all the other elements of the calculation too.
53 That conclusion is not called into question by the fact that the error regarding the taking into account of the IPS indicator was unintentional. Indeed, whether the error which led to the adoption of an act altering an earlier act was intentional or otherwise is irrelevant to the determination, in accordance with the case-law mentioned in paragraphs 39, 40 and 41 of this judgment, of whether the amending act contains any new factor by comparison with the earlier act and produces legal effects.
54 It follows from all those considerations that the General Court erred in law in holding that the second contested decision was merely confirmatory of the first contested decision, having regard to the subject matter of the dispute, and that, for that reason, the action was inadmissible.
55 Accordingly, the first and second parts of the first ground of appeal must be upheld and, on that basis, the judgment appeal set aside in its entirety, without it being necessary for the Court to rule on the other parts of that ground of appeal or on the second ground of appeal.
56 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, itself give final judgment in the matter.
57 In the present case, since the General Court dismissed the appellant’s action as inadmissible and consequently did not examine the pleas in law relied on by the appellant in support of its action, the state of the proceedings does not permit final judgment to be given. Accordingly, the case must be referred back to the General Court.
58 Since the case is being referred back to the General Court, it is appropriate to reserve the costs.