1 The request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 19(1) TEU, of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Articles 3(3) and 85(2) and (3) 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), as amended by Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 150, p. 296) (‘Directive 2014/59’).
2 The request has been made in proceedings between the Rada Nadzorcza Getin Noble Bank S.A. (Supervisory Board of Getin Noble Bank S.A.) (‘Supervisory Board of GN Bank’) and a large number of natural and legal persons, on the one hand, and Bankowy Fundusz Gwarancyjny (Bank Guarantee Fund, Poland) (‘the BGF’), on the other, concerning the BGF’s decision to open a resolution procedure against Getin Noble Bank (‘GN Bank’).
3 Article 47 of the Charter, headed ‘Right to an effective remedy and to a fair trial’, provides: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. …’
4 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), as amended by Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 150, p. 1) (‘Regulation No 575/2013’), states as follows in Article 1: ‘This Regulation lays down uniform rules concerning general prudential requirements that institutions, financial holding companies and mixed financial holding companies supervised under Directive 2013/36/EU [of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338)] shall comply with in relation to the following items:
5 Article 2(1) and (2) of Regulation No 575/2013 provides: ‘1. For the purpose of ensuring compliance with this Regulation, competent authorities shall have the powers and shall follow the procedures set out in Directive 2013/36/EU and in this Regulation. 2. For the purpose of ensuring compliance with this Regulation, resolution authorities shall have the powers and shall follow the procedures set out in Directive 2014/59/EU … and in this Regulation.’
6 Under Article 4(1) of that regulation: ‘For the purposes of this Regulation, the following definitions shall apply: …
7 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) provides as follows in Article 1(1): ‘This Directive lays down rules and procedures relating to the establishment and the functioning of deposit guarantee schemes (DGSs).’
8 Under Article 11(2) of that directive, the financial means of a deposit guarantee scheme are to be used in order to finance the resolution of credit institutions in accordance with Article 109 of Directive 2014/59.
9 Recitals 15, 40, 88, 90 to 92, 110 and 130 of Directive 2014/59 state:
10 Article 2 of that directive provides as follows in paragraph 1:
11 Article 3 of that directive, headed ‘Designation of authorities responsible for resolution’, provides, in paragraphs 3 and 4: ‘3. Resolution authorities may be national central banks, competent ministries or other public administrative authorities or authorities entrusted with public administrative powers. Member States may exceptionally provide for the resolution authority to be the competent authorities for supervision for the purposes of Regulation (EU) No 575/2013 and Directive 2013/36/EU. Adequate structural arrangements shall be in place to ensure operational independence and avoid conflicts of interest between the functions of supervision pursuant to Regulation (EU) No 575/2013 and Directive 2013/36/EU or the other functions of the relevant authority and the functions of resolution authorities pursuant to this Directive, without prejudice to the exchange of information and cooperation obligations as required by paragraph 4. In particular, Member States shall ensure that, within the competent authorities, national central banks, competent ministries or other authorities there is operational independence between the resolution function and the supervisory or other functions of the relevant authority. The staff involved in carrying out the functions of the resolution authority pursuant to this Directive shall be structurally separated from, and subject to, separate reporting lines from the staff involved in carrying out the tasks pursuant to Regulation (EU) No 575/2013 and Directive 2013/36/EU or with regard to the other functions of the relevant authority. For the purposes of this paragraph, the Member States or the resolution authority shall adopt and make public any necessary relevant internal rules including rules regarding professional secrecy and information exchanges between the different functional areas. 4. Member States shall require that authorities exercising supervision and resolution functions and persons exercising those functions on their behalf cooperate closely in the preparation, planning and application of resolution decisions, both where the resolution authority and the competent authority are separate entities and where the functions are carried out in the same entity.’
12 Title III of that directive, headed ‘Early intervention’, includes Article 29, which provides: ‘1. Where replacement of the senior management or management body as referred to in Article 28 is deemed to be insufficient by the competent authority to remedy the situation, Member States shall ensure that competent authorities may appoint one or more temporary administrators to the institution. Competent authorities may, based on what is proportionate in the circumstances, appoint any temporary administrator either to replace the management body of the institution temporarily or to work temporarily with the management body of the institution and the competent authority shall specify its decision at the time of appointment. If the competent authority appoints a temporary administrator to work with the management body of the institution, the competent authority shall further specify at the time of such an appointment the role, duties and powers of the temporary administrator and any requirements for the management body of the institution to consult or to obtain the consent of the temporary administrator prior to taking specific decisions or actions. The competent authority shall be required to make public the appointment of any temporary administrator except where the temporary administrator does not have the power to represent the institution. Member States shall further ensure that any temporary administrator has the qualifications, ability and knowledge required to carry out his or her functions and is free of any conflict of interests. … 3. The role and functions of the temporary administrator shall be specified by [the] competent authority at the time of appointment and may include ascertaining the financial position of the institution, managing the business or part of the business of the institution with a view to preserving or restoring the financial position of the institution and taking measures to restore the sound and prudent management of the business of the institution. The competent authority shall specify any limits on the role and functions of the temporary administrator at the time of appointment. … 6. The competent authority may require that a temporary administrator draws up reports on the financial position of the institution and on the acts performed in the course of its appointment, at intervals set by the competent authority and at the end of his or her mandate. …’
13 Title IV of Directive 2014/59, headed ‘Resolution’, contains Articles 31 and 32 thereof. Article 31, headed ‘Resolution objectives’, states: ‘1. When applying the resolution tools and exercising the resolution powers, resolution authorities shall have regard to the resolution objectives, and choose the tools and powers that best achieve the objectives that are relevant in the circumstances of the case. 2. The resolution objectives referred to in paragraph 1 are: … 3. Subject to different provisions of this Directive, the resolution objectives are of equal significance, and resolution authorities shall balance them as appropriate to the nature and circumstances of each case.’
14 Article 32 of that directive, headed ‘Conditions for resolution’, provides: ‘1. Member States shall ensure that resolution authorities shall take a resolution action in relation to an institution referred to in point (a) of Article 1(1) only if the resolution authority considers that all of the following conditions are met: … 5. For the purposes of point (c) of paragraph 1 of this Article, a resolution action shall be treated as in the public interest if it is necessary for the achievement of and is proportionate to one or more of the resolution objectives referred to in Article 31 and winding up of the institution under normal insolvency proceedings would not meet those resolution objectives to the same extent. …’
15 Article 85 of that directive, headed ‘Ex-ante judicial approval and rights to challenge decisions’, provides as follows in paragraphs 2 to 4: ‘2. Member States shall provide in national law for a right of appeal against a decision to take a crisis prevention measure or a decision to exercise any power, other than a crisis management measure, under this Directive. 3. Member States shall ensure that all persons affected by a decision to take a crisis management measure have the right to appeal against that decision. Member States shall ensure that the review is expeditious and that national courts use the complex economic assessments of the facts carried out by the resolution authority as a basis for their own assessment. 4. The right to appeal referred to in paragraph 3 shall be subject to the following provisions: Where it is necessary to protect the interests of third parties acting in good faith who have acquired shares, other instruments of ownership, assets, rights or liabilities of an institution under resolution by virtue of the use of resolution tools or exercise of resolution powers by a resolution authority, the annulment of a decision of a resolution authority shall not affect any subsequent administrative acts or transactions concluded by the resolution authority concerned which were based on the annulled decision. In that case, remedies for a wrongful decision or action by the resolution authorities shall be limited to compensation for the loss suffered by the applicant as a result of the decision or act.’
16 Headed ‘Use of deposit guarantee schemes in the context of resolution’, Article 109 of that directive provides as follows in paragraph 1: ‘Member States shall ensure that, where the resolution authorities take resolution action, and provided that that action ensures that depositors continue to have access to their deposits, the deposit guarantee scheme to which the institution is affiliated is liable for: … In all cases, the liability of the deposit guarantee scheme shall not be greater than the amount of losses that it would have had to bear had the institution been wound up under normal insolvency proceedings. …’
17 Article 111(1) of the ustawa - Prawo o postępowaniu przed sądami administracyjnymi (Law on procedure before the administrative courts) of 30 August 2002 (Dz. U. of 2002, item 329), in the version applicable to the dispute in the main proceedings, provides: ‘The court shall order the joinder of two or more separate cases pending before it, for the purposes of hearing and ruling on them together, where they are capable of forming the subject matter of a single action.’
18 Article 134(1) of that law is worded as follows: ‘The court shall rule within the limits of the terms of the action and shall not be bound by the pleas in law, forms of order sought or the legal basis relied on in the application, subject to Article 57a.’
19 Under Article 170 of that law: ‘The final decision shall be binding not only on the parties and on the court that issued it but on the other courts, State authorities and, where the Law so provides, also on other persons.’
20 Under Article 1 of the ustawa - Prawo o ustroju sądów administracyjnych (Law relating to the system of administrative courts) of 25 July 2002, in the version applicable to the dispute in the main proceedings (Dz. U. of 2022, item 2492): ‘1. The administrative courts shall administer justice by reviewing the activity of the public authorities … 2. The review referred to in paragraph 1 shall be a review of legality, unless the Law provides otherwise.’
21 The ustawa - Kodeks cywilny (Law on the Civil Code) of 23 April 1964, in the version applicable to the dispute in the main proceedings (Dz. U. of 2022, item 1360), provides as follows in Article 417(1): ‘The Public Treasury, a regional authority or another legal person exercising State authority by virtue of the law shall be liable for damage caused by unlawful acts or omissions in the exercise of State authority.’
22 Article 417(2) of that law provides: ‘If the damage was caused by a final ruling or decision, that damage may be claimed once it has been established, in the appropriate proceedings, that that ruling or that decision is unlawful, save as otherwise provided. …’
23 The ustawa - Bankowym Funduszu Gwarancyjnym, systemie gwarantowania depozytów oraz przymusowej restrukturyzacji (Law on the Bank Guarantee Fund, the deposit guarantee scheme and resolution) of 10 June 2016, in the version applicable to the dispute in the main proceedings (Dz. U. of 2022, item 793) (‘the BGF Law’) defines the tasks of the BGF in Article 5. Paragraphs 1 to 6 of that article are worded as follows: ‘1. ‘The tasks of the [BGF] shall include: 3. The [BGF] shall collaborate with other entities working for the stability of the national financial system … … 6. On a proposal by the [BGF], the Komisja Nadzoru Finansowego [(Financial Supervision Authority, Poland)] shall appoint the [BGF] as insolvency administrator, as referred to in Article 144(1) of the ustawa - prawo bankowe [(Law on banking law) of 20 August 1997 (Dz. U. of 1997, No 140, item 939)] …’
24 As set out in Article 6(1) of the BGF Law, the organs of the BGF are to be the Board and the Management Board.
25 Article 7(4) of that law provides that the Board of the BGF is to be composed of six members: three representatives of the Minister responsible for financial institutions, two representatives of the National Bank of Poland and one representative of the Financial Supervision Authority.
26 As set out in Article 11 of that Law, the Management Board of the BGF is to be responsible, inter alia, for senior management of the business of the BGF, management of its resources subject to the powers of the Board of the BGF, submission of periodic reports to that Board and decision making on the opening of resolution procedures. Under Article 11(8), those decisions are to be final and immediately enforceable.
27 Article 66 of that law sets out the resolution objectives as follows:
28 Under Article 101 of the BGF Law: ‘1. The Financial Supervision Authority shall immediately report to the [BGF]: … 7. Where all the following conditions are satisfied: the [BGF] shall decide to open a resolution procedure in respect of the national entity or to write down or convert capital instruments or eligible liabilities, as referred to in Article 70(1)(1). … 10. Resolution actions shall be taken in the general interest where they are necessary to achieve at least one of the resolution objectives referred to in Article 66, they are proportionate to those objectives and those objectives could not have been achieved to the same degree in the context of insolvency proceedings. 11. Before making the decision referred to in paragraph 7, the [BGF] shall consult the Financial Supervision Authority on compliance with the conditions referred to in paragraph 7(1) and (2). … … 14. Where the conditions set out in paragraph 7(1) and (2) are satisfied but the condition in paragraph 7(3) is not satisfied, the national entity or the entities referred to in Article 64(2)(a), (c) or (d) shall be wound up in accordance with the detailed rules laid down in separate provisions.’
29 Article 103(1), (3) and (5) of that law provides: ‘1. The [BGF] shall serve the decision referred to in Article 101(7) to (9) and in Article 102(1) to (4) on the entity [concerned]. … 3. The [BGF] shall state reasons for the decision referred to in Article 101(7) to (9) and in Article 102(1) and (4) within 14 days from the date on which it is served on the entity under resolution. … 5. The supervisory board of the entity under resolution may bring an action against the decision before the administrative court within seven days from the date on which the entity concerned is served with the reasons for the decision. Any person with a legal interest that has been harmed by the decision shall also have standing to bring proceedings before the administrative court.’
30 Article 104(2) to (4) of that law provides: ‘2. The administrative court shall rule on the action within 30 days from receiving the application accompanied by the case file and the defence. 3. The Naczelny Sąd Administracyjny [(Supreme Administrative Court, Poland)] shall rule on an appeal on a point of law within two months from the date it is received. 4. The time limits set out in paragraphs 2 and 3 do not include the time limits laid down by legislation for particular acts, periods during which proceedings are stayed, delays attributable to a party or delays for reasons beyond the control of the court.’
31 Article 105(2) to (5) of that law provides: ‘2. In the situations provided for in Article 145 [of the Law on procedure before the administrative courts], the court shall find that the decision was made unlawfully and shall uphold the action concerning that decision. 3. A final administrative judgment finding that the decision of the [BGF] was made unlawfully shall not affect the validity of legal acts based on that decision and shall not prevent the [BGF] from relying on that decision in its action where the cessation of that action would pose a risk to the entity’s commercial value, to continued performance of the obligations which resolution is intended to protect, to financial stability or to rights acquired in good faith by third parties, in particular third parties that have acquired property rights or have taken over liabilities following the decision of the [BGF] on the application of resolution tools. 4. The [BGF] shall be liable for the unlawfulness of its decision making up to the amount of the loss incurred. 5. Compensation shall be limited to a monetary benefit.’
32 Under Article 242(1) of the BGF Law: ‘Creditors and owners that have, in the context of the resolution, received an amount lower than that which they would have obtained in the context of the procedure under Article 241(1): … shall be entitled to claim additional compensation from the [BGF].’
33 The ustawa - o nadzorze nad rynkiem finansowym (Law relating to supervision of the financial market) of 21 July 2006, in the version applicable to the dispute in the main proceedings (Dz. U. of 2022, item 660), provides in Article 1(2)(1) that supervision of the financial market is to include banking supervision performed in accordance with the provisions of, in particular, Regulation No 575/2013.
34 As set out in Article 3(1) and (4) of that law, the Financial Supervision Authority is to be competent in matters relating to supervision of the financial market. Article 3a of that law specifies that that authority is to be, subject to exceptions, the competent authority within the meaning of Article 4(1)(40) of Regulation No 575/2013.
35 Article 144(1), (1a), (3) and (4) of the Law on banking law, in the version applicable to the dispute in the main proceedings (‘the Banking Law’), provides: ‘1. In order to improve the situation of the bank or to ensure effective implementation of the recovery plan, the Financial Supervision Authority, in the situation referred to in Article 138(3), on the occurrence of the circumstances set out in Article 142(1), may decide to appoint an insolvency administrator of the bank, subject to Article 5(6) of the [BGF Law]. 1a. In the situation referred to in paragraph 1, the Financial Supervision Authority shall in its decision specify in detail the scope of the tasks of the insolvency administrator. … 3. The insolvency administrator shall have a right of opposition in respect of resolutions and decisions of the bank’s board of directors and supervisory board. A declaration of intent to oppose, made at a meeting of the supervisory board or the board of directors, shall suspend implementation of the resolution or decision concerned. 4. The insolvency administrator shall bring an action against a resolution of the general shareholders’ meeting or of the general meeting of a cooperative bank that damages the interests of the bank …’
36 As a result of GN Bank’s failure to comply with the own funds requirements laid down by Regulation No 575/2013, the Financial Supervision Authority, by decision of 22 December 2021, appointed an insolvency administrator within the meaning of Article 5(6) of the BGF Law - a function corresponding to that of ‘temporary administrator’ within the meaning of Article 29 of Directive 2014/59 - to that financial institution with the aim of improving its financial situation. That function was entrusted to the BGF. By that decision, the Financial Supervision Authority entrusted the BGF, among other matters, with drawing up reports, monitoring the business of GN Bank and exercising all the legal powers attaching to that function.
37 On 18 August 2022, the Financial Supervision Authority informed the BGF of the risk of GN Bank failing, and that there were no indications that the measures taken would serve to avoid that risk in good time.
38 In that context, on 29 September 2022, the BGF, acting as the resolution authority, made a decision placing GN Bank under resolution, appointing a special manager, writing down the capital instruments issued by that institution and applying the resolution tool consisting of a bridge institution (‘the decision at issue in the main proceedings’). As a result, the assets of GN Bank indicated in that decision were transferred to a bridge institution on 3 October 2022, subject to exceptions from that transfer that were listed exhaustively. Those exceptions included property rights arising from de facto or legal acts or from infringement of the rules relating to credit and loan agreements denominated in foreign currency or indexed to a foreign currency, and claims arising from those property rights, including claims forming the subject matter of civil and administrative proceedings, irrespective of the date on which those proceedings had been brought. That decision was addressed to GN Bank, the bridge institution and the special manager.
39 The Supervisory Board of GN Bank brought an action against the decision at issue in the main proceedings before the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw, Poland), which is the referring court. Other natural and legal persons also brought actions against that decision, including shareholders of GN Bank, holders of bonds issued by it, creditors and persons that had concluded credit and loan agreements with it denominated in foreign currency or indexed to a foreign currency.
40 The applicants in those various actions are seeking a finding by the referring court that the decision at issue in the main proceedings is unlawful, which would allow them to bring claims for compensation before the ordinary courts. They raise pleas in law alleging infringements of substantive law and of rules of procedure that materially affect that decision. In that regard, it is claimed, inter alia, that the BGF was subject to a conflict of interest which prevented it from performing the functions attributed to the resolution authority, in so far as it performed supervisory, bank deposit guarantee and resolution functions at the same time. That conflict of interest is, they submit, exacerbated by the absence of the procedural safeguards provided for by Directive 2014/59.
41 The BGF disputes that there was a conflict of interest. It also submits that it made organisational and structural arrangements which ensure its operational independence as a resolution authority and avoid any conflict of interest when it performs the resolution functions and its other functions.
42 In the first place, the referring court states that, on the date of the order for reference, more than 7 000 actions had been brought against the decision at issue in the main proceedings, equivalent to the number of actions brought before that court on average over a period of more than two years. It subsequently informed the Court that there were by then more than 8 000 actions against that decision.
43 The referring court notes in that regard that under Article 111(1) of the Law on procedure before the administrative courts it is obliged to join all the actions brought before it against the decision at issue in the main proceedings and that it accordingly ordered that joinder, for the purposes of hearing and ruling on those actions together, on 26 January 2023. However, it believes that application of that provision makes it excessively difficult, if not impossible, to give judgment within a reasonable time.
44 In that context, the referring court is uncertain whether the fact that any person with a legal interest that has been harmed by the decision at issue in the main proceedings is entitled to bring proceedings before an administrative court constitutes an effective remedy in accordance with Article 85(2) and (3) of Directive 2014/59, in conjunction with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. It points out that recital 88 of that directive, referring to Article 47 of the Charter, makes clear that the issue is one of ensuring that the persons concerned have a ‘right to an effective remedy’ against the measures affecting them.
45 In that regard, although it is, in principle, for the national law to determine which persons have standing to bring an action against the decision of the national resolution authority and how the protection of those persons’ legal interest should be ensured, the referring court questions whether affording those persons the ability to bring an individual action against that decision before the administrative courts is a necessary condition in order for the rights arising from EU law to be protected.
46 The referring court explains that, as set out in Article 11(8) and in Article 105(2) and (3) of the BGF Law, a decision to open the resolution procedure is final and immediately enforceable, and that the administrative court seised of an action against that decision cannot annul it but has power only to find that the action in question is unlawful or to dismiss it. Those provisions implement Article 85(4) of Directive 2014/59.
47 Since that action has no suspensory effect and cannot give rise to annulment of such a decision, the national legislature has provided the persons concerned with an action for damages. That being so, a final judgment declaring the decision at issue in the main proceedings to be unlawful enables such an action to be brought, while not prejudging its merits.
48 As regards the national rules of administrative procedure, the referring court explains that the administrative courts administer justice by reviewing the acts of the public authorities, which it does in terms of their legality. Those courts rule within the limits of the case but are not bound by the pleas in law, forms of order sought and legal basis set out in the application, which means, in essence, that they perform a comprehensive review of the legality of the contested measure. The pleas raised are therefore merely indicative and the judgment may take into consideration grounds of unlawfulness other than those relied on by the applicant.
49 Moreover, in accordance with Article 170 of the Law on procedure before the administrative courts, the final administrative judgment has erga omnes effect.
50 Consequently, first, any final administrative judgment finding the decision at issue in the main proceedings to be unlawful would have no effect such as to give rise directly to rights and obligations either for the persons to which it is addressed or for the other persons concerned by it as a result of their legal interest. Second, persons that were not parties to the administrative proceedings leading to that decision and have not themselves brought judicial proceedings against it, but that have a legal interest allegedly harmed by its unlawfulness, could bring actions for damages before the ordinary courts in reliance on that judgment.
51 In that context, the referring court is uncertain whether the Polish legislature was correct to take the view that, in order to satisfy the requirements flowing from Article 85(3) of Directive 2014/59, from Article 47 of the Charter and from the second subparagraph of Article 19(1) TEU, it was necessary to recognise any person with a legal interest that has been harmed by a decision such as that at issue in the main proceedings as having standing to bring proceedings before the administrative courts.
52 The referring court considers that it is relevant to answer the first question referred, in the light of its obligation to determine the group of parties to the judicial proceedings and in relation to how the actions before it should be dealt with, since the action before the ordinary courts that is available, by virtue of Polish law, to the persons concerned in order to assert their rights that may have been infringed by the decision at issue in the main proceedings, in conjunction with the rules of procedure before the administrative courts, may be regarded as appropriate and sufficient in order to ensure effective protection of those persons’ rights.
53 In the second place, the referring court considers that, if that were not the case, in view of the large number of actions brought against the decision at issue in the main proceedings, it would be necessary to examine the consequences of the provision of national procedural law under which it is required to join all those actions for the purposes of the proceedings. That court is uncertain whether, in order to ensure effective legal protection not only for persons other than the entity under resolution but also for that entity, it is entitled to disapply that provision.
54 The purpose of the provision in question is, in essence, to prevent an administrative court, where it is seised of more than one action against the same measure and hears those actions separately, from delivering divergent judgments.
55 The referring court considers that, in the present case, that procedural requirement may considerably delay delivery of the judgment closing the proceedings and, in that way, make it in practice impossible or excessively difficult to exercise rights conferred by EU law, which would contravene the principle of effectiveness.
56 The referring court takes the view that, having regard to the procedural rules governing the hearing of actions before the administrative courts and to the effects of a final judgment delivered pursuant to such an action, non-application of that procedural requirement would contribute to implementing the rights guaranteed by EU law by enabling compliance with the requirement for an expeditious review of the legality of the decision at issue in the main proceedings, in accordance with Article 85(3) of Directive 2014/59. In that situation, the referring court would rule on the first action, brought by GN Bank’s Supervisory Board.
57 In the third place, the referring court considers that in order to review the decision at issue in the main proceedings it is necessary to determine whether, at the time that decision was made, the BGF complied with the requirements of operational independence and of the absence of any conflict of interest between the various functions of the national resolution authority, within the meaning of Article 3(3) of Directive 2014/59, in the light, in particular, of the fact that that authority combined resolution functions with those of temporary administrator of GN Bank, which it had exercised previously, and with bank deposit guarantee functions.
58 In that regard, the referring court considers that even though, strictly speaking, the supervisory function is performed by the Financial Supervision Authority, the fact remains that a temporary administrator is appointed by that supervision authority and performs the tasks entrusted to it by the latter. Accordingly, it is not a priori inconceivable that performance of the temporary administrator functions by the BGF required appropriate arrangements to be put in place to ensure its operational independence as a national resolution authority and to avoid any conflict of interest.
59 Furthermore, according to the referring court, the fact that the BGF combines resolution and deposit guarantee functions, without those two functions being structurally separate and operationally independent, creates a risk that the measures taken by that authority in respect of a bank in a situation presenting a risk of failure might be aimed at minimising commitment of the resources which are available to that authority in the context of its bank deposit guarantee functions and which, in the event of the failure of the bank concerned, would have to be released pursuant to that guarantee.
60 The referring court also wonders whether, despite the fact that the BGF Law contains no provisions ensuring structural separation between the BGF’s resolution function and its other functions, it is nevertheless possible to find that the objective of operational independence and an absence of conflicts of interest has been achieved if other measures, which are found to be sufficient, have been taken for that purpose.
61 In those circumstances the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
62 By its second question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 85(3) of Directive 2014/59, in conjunction with Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, must be interpreted as precluding the application of a national procedural rule under which a court with jurisdiction to hear actions against the decision of the national resolution authority to take a crisis management measure must join all the actions brought before it against that decision, where the application of that rule could make it excessively difficult, if not impossible, to give judgment within a reasonable time, as the result of the large number of actions against that decision.
63 The Polish Government disputes the admissibility of the second question.
64 That government submits that the answer to the second question would serve no purpose, because the referring court has already joined the actions brought against the decision at issue in the main proceedings which were pending before it on 26 January 2023, with the effect that it is now unable to rule separately on the action brought by the Supervisory Board of GN Bank.
65 In that regard, it is clear from the wording itself of the second question that the referring court entertains doubts as to whether it is possible to reconcile the requirement imposed by national law to join the large number of actions brought before it with the need to rule expeditiously, or at the very least within a reasonable time, which flows from the provisions of EU law of which it is seeking interpretation. The answer to that question remains relevant even though the majority of the actions pending before the referring court have been joined, since the answer could lead that court to find that their joinder was invalid on the ground of its incompatibility with EU law, and in consequence to order that those actions be disjoined.
66 The second question is therefore admissible.
67 The second subparagraph of Article 19(1) TEU obliges Member States to provide remedies sufficient to ensure effective legal protection for individual parties in the fields covered by EU law (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 56 and the case-law cited). That requirement for effective legal protection must be understood, in particular, within the meaning of Article 47 of the Charter (see, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 57). Moreover, recitals 88 and 130 of Directive 2014/59 make clear that the directive respects the rights, freedoms and principles recognised by the Charter, in particular the right to an effective remedy, and that the parties concerned are entitled, among other matters, to an effective remedy against the measures affecting them.
68 In accordance with the second paragraph of Article 47 of the Charter, the right to an effective remedy includes the right to a hearing within a reasonable time. The reasonableness of the period for delivering judgment must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties. The list of relevant criteria is not exhaustive (see, to that effect, judgments of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 212, and of 16 July 2009, Der Grüne Punkt - Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraphs 181 and 182 and the case-law cited).
69 As regards the right to bring proceedings against decisions to take crisis management measures made by the national resolution authorities, Article 85(3) of Directive 2014/59 embodies the right of any person to a hearing within a reasonable time, enshrined in Article 47 of the Charter, by requiring that the judicial review available to any person affected by a decision to take such a measure must be ‘expeditious’.
70 In respect of the criterion relating to the importance of the case for the persons affected by decisions of the national resolution authority to take crisis management measures, that is to say, the institutions or entities to which they are addressed, their shareholders and creditors and any other third parties that may be concerned by such decisions, appraisal of the reasonableness of the period for delivering judgment in the context of the review referred to in Article 85(3) must be based, in particular, on the need to satisfy as expeditiously as possible the fundamental requirement of legal certainty vis-à-vis all those persons, since those measures relate to exceptional decisions that constitute derogations and have considerable consequences and that must be made urgently, in view of the severity of the risks they are intended to address, as noted, for example, by recital 92 of Directive 2014/59.
71 It is clear from the Court’s case-law that considerations relating to the requirement of legal certainty, the importance of the issues and financial interests involved and the large number of persons potentially concerned must be taken into account when appraising the reasonableness of the period within which a judicial review must be carried out (see, by analogy, judgment of 26 November 2013, Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 87 and the case-law cited).
72 In the present case, it is apparent from the request for a preliminary ruling that Article 85(3) of Directive 2014/59 was implemented, within the meaning of Article 51(1) of the Charter, in the applicable national legislation by the obligation placed on the various persons involved to comply with the short time limits laid down in Article 104 of the BGF Law, that is to say, time limits restricted, in principle, to 7 days for notifying the BGF of an action, to 14 days for the BGF to lodge that action accompanied by the BGF’s defence, to 30 days for the decision of the administrative court to be issued and to 2 months for a ruling to be made on any appeal on a point of law. The Court therefore considers that the present question concerns the interpretation of Article 47 of the Charter.
73 The referring court nevertheless states that a national procedural provision of general application, namely Article 111(1) of the Law on procedure before the administrative courts, seems to be such as to prevent the court seised of the matter from respecting the right, of an individual, to a hearing within a reasonable time, since that provision requires cases relating to actions brought against the same decision to be joined for the purposes of being heard and ruled on together. The referring court explains that the number of actions brought against the decision at issue in the main proceedings is equivalent to the total number of actions usually brought before it in two years, and that to hear them together would delay the delivery of a judgment beyond what constitutes a reasonable time.
74 Notwithstanding the fact that as a general rule the joinder of connected cases can contribute to the proper administration of justice, the same is not so of actions brought against decisions to take a crisis management measure, which are liable to affect a considerable number of persons and, therefore, to give rise to numerous actions. In that situation, such joinder can prevent any judicial review from taking place for a number of years, thereby infringing the right to a hearing within a reasonable time enshrined in Article 47 of the Charter.
75 In those circumstances, it should be noted that, first, in accordance with the principle that national law must be interpreted in conformity with EU law, for the matters within their jurisdiction and in order to ensure the full effectiveness of EU law when they determine the disputes before them, the national courts are bound, when applying domestic law, to interpret it to the fullest extent possible in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, to comply with the third paragraph of Article 288 TFEU. Although that obligation is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and cannot serve as the basis for an interpretation of national law that is contra legem, those courts nevertheless have a duty to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see, to that effect, judgment of 11 February 2021, M.V. and Others (Successive fixed-term contracts in the public sector), C‑760/18, EU:C:2021:113, paragraphs 65, 67 and 68 and the case-law cited).
76 Second, pursuant to the principle of the primacy of EU law, where it is unable to interpret national law in compliance with the requirements of EU law, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law has an obligation, as an organ of a Member State, to give full effect to those provisions, if necessary refusing of its own motion to apply any provision of national law that is contrary to a provision of EU law with direct effect in the case pending before it (see, to that effect, judgment of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs 58 and 61 and the case-law cited).
77 In the present case, the provisions of Article 47 of the Charter must be considered to have direct effect (see, to that effect, judgment of 15 April 2021, Braathens Regional Aviation, C‑30/19, EU:C:2021:269, paragraph 57 and the case-law cited).
78 Accordingly, the referring court must, inter alia, if necessary, disapply the provisions of national procedural law that would prevent it from disjoining the actions at issue in the main proceedings, where those provisions cannot be interpreted in a manner which respects the right to a hearing within a reasonable time enshrined in Article 47 of the Charter.
79 Furthermore, at the hearing before the Court, the Polish Government stated that, in relation to cases such as those at issue in the main proceedings, Polish law allows those cases to be disjoined where the joinder is invalid. However, according to that government, in the event of disjoinder, those cases would be heard simultaneously by different judges, which would involve a risk of irreconcilable judgments, since there is no detailed procedural rule able both to avert that risk and to ensure respect for the right of any person to a hearing within a reasonable time enshrined in Article 47 of the Charter.
80 In that regard, it should be noted that the requirement for effective legal protection enshrined in Article 47 of the Charter applies, inter alia, to the definition of detailed procedural rules relating to actions based on the rights that individuals derive from EU law (see, to that effect, judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 45 and the case-law cited).
81 In the absence of EU legislation in that area, the detailed rules implementing the right to an effective remedy of persons affected by the decision of a national authority to take a crisis management measure are a matter for the national legal order of the Member States, in accordance with the principle of procedural autonomy, but must be consistent with the principles of equivalence and effectiveness (see, by analogy, judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 21 and the case-law cited).
82 In order to satisfy the requirements of the principle of effective legal protection enshrined in Article 47(1) of the Charter, the national court must, in accordance with Article 85(3) of Directive 2014/59, take the necessary procedural and organisational measures, weighing up the various interests involved and assessing the effect of those measures on any person that has validly brought an action against the decision of the national resolution authority. Accordingly, in order to ensure the full effectiveness of the subsequent judicial decision as regards the existence of the rights invoked on the basis of EU law, the national court must, in the event of disjoinder, be able to take the necessary measures making it possible both to ensure respect for the right of any person to a hearing within a reasonable time, enshrined in Article 47 of the Charter, and to prevent the risk of irreconcilable judgments delivered by different judges.
83 In the present case, it is for the referring court to verify whether the hearing, initially, of one or more cases relating to one or more actions against a decision of the resolution authority such as the decision at issue in the main proceedings, while the other cases relating to the same decision are suspended, is necessary in order to ensure the full effectiveness of the subsequent judicial decision on the existence of the rights invoked on the basis of EU law.
84 Having regard to all the foregoing, the answer to the second question is that Article 47 of the Charter must be interpreted as precluding the application of a national procedural rule under which a court with jurisdiction to hear actions against the decision of the national resolution authority to take a crisis management measure must join all the actions brought before it against that decision, where the application of that rule infringes the right to a hearing within a reasonable time.
85 The BGF and the Polish Government dispute the admissibility of the first question, which concerns whether a court that is hearing more than one action against a decision of the national resolution authority to take a crisis management measure may rule on one of those actions alone, provided that it carries out a review of legality and that its judgment will have erga omnes effect.
86 According to the BGF, it is not necessary to answer that question in order to resolve the dispute in the main proceedings. The matter is one of technical aspects relating to the conduct of the judicial proceeding and which do not require an interpretation of EU law, since the referring court has not expressed doubts as to whether the national provisions governing those proceedings are compatible with EU law.
87 In that regard, it is clear from settled case-law that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court, which enjoy a presumption of relevance. Therefore, in so far as a question referred concerns the interpretation or validity of a rule of Union law, the Court is, in principle, required to give a ruling, unless it is quite obvious that the interpretation sought bears no relation to the actual facts of the main action, it is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the question submitted to it (judgment of 21 December 2021, Trapeza Peiraios, C‑243/20, EU:C:2021:1045, paragraph 25 and the case-law cited).
88 In the present case, the interpretation of EU law to which the first question relates is capable of affecting the procedural treatment of the case in the main proceedings to the extent that, without prejudice to the answer to the second question, that case is the result of all the actions brought against the decision at issue in the main proceedings other than that brought by the Supervisory Board of GN Bank. In addition, contrary to the claims of the BGF, the referring court expressly envisages the possibility that the obligation to examine all the actions brought before it could oblige it to infringe its obligation to rule expeditiously.
89 The Polish Government submits that an answer to the first question would serve no purpose, on the same grounds as those set out in paragraph 64 of the present judgment.
90 However, the answer to that question remains of use despite the joinder of the various actions brought before the referring court, since that court could find it necessary, in the light of the answer to the second question, to hold that the joinder infringes the right to a hearing within a reasonable time enshrined in Article 47 of the Charter, thereby allowing that court, first, to disjoin the actions and, second, to conduct the verification referred to in paragraph 83 of the present judgment.
91 The first question is therefore admissible.
92 As a preliminary matter, it should be noted that Article 85(2) of Directive 2014/59, although it is addressed by the first question, is irrelevant in the light of the circumstances of the case in the main proceedings. That provision concerns the right of appeal against a decision to take a crisis prevention measure or a decision to exercise any power, other than a crisis management measure, under that directive, whereas the decision at issue in the main proceedings, which is intended fundamentally to place GN Bank under resolution, constitutes a ‘resolution action’ and, therefore, a ‘crisis management measure’, within the meaning of paragraphs (40) and (102) respectively of Article 2 of that directive.
93 Consequently, it must be found that, by its first question, the referring court asks, in essence, whether Article 85(3) of Directive 2014/59, in conjunction with Article 47 of the Charter, must be interpreted as meaning that, where a national court has been seised of more than one action against the decision of the national resolution authority to take a crisis management measure, and one of those actions was brought by an organ of the institution under resolution, the substantive hearing of that one action alone permits the inference that the right to an effective remedy has been upheld with regard to any other person which has also brought an action against that decision, provided that the national court, first, carries out a review of legality in which it is not bound by the pleas in law, forms of order sought or the legal basis of the action it is hearing and, second, delivers a judgment that has erga omnes effect, on which any person affected by that decision may rely for the purposes of obtaining compensation for the harm caused to that person by the decision in question.
94 In that light, it should be noted that Article 85(3) of Directive 2014/59 provides that all persons affected by a decision to take a crisis management measure must have the right to challenge that decision in legal proceedings.
95 It is true that, under the second subparagraph of Article 85(4) of that directive, the annulment of a decision of a resolution authority is not to affect any administrative acts or transactions concluded by that authority which were based on the annulled decision where it is necessary to protect the interests of third parties acting in good faith, and that the remedies for a wrongful decision or action by that authority are to be limited to compensation for the loss suffered by the persons affected as a result of that decision or act.
96 In accordance with Polish law, persons affected by a crisis management measure taken by the BGF acting as the resolution authority are not required to have themselves challenged the legality of that measure before the national administrative court in order to be entitled to bring claims for compensation for the loss allegedly caused to them by that measure, since those persons can rely, in support of those claims, on a finding that the measure in question is unlawful made in a judgment of that court ruling on an action brought by a different person.
97 However, in the present case, if the judgment ruling on the action brought by the Supervisory Board of GN Bank were to dismiss that action as unfounded, the other applicants in the main proceedings would be unable to bring claims for compensation for the harm caused to them, because such a judgment would have erga omnes effect. Those other applicants would therefore be deprived of the right to raise their own pleas in support of their actions against the decision at issue in the main proceedings, even though those pleas have not been the subject of an exchange of arguments ensuring that those applicants are aware of and can debate the matters of both fact and law that are decisive for the outcome of the proceedings.
98 In that regard, it is settled case-law of the Court that although, admittedly, fundamental rights, such as the right to an effective remedy guaranteed by Article 47 of the Charter, do not constitute unfettered prerogatives and may be restricted, that is nevertheless so only provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, in the light of the aim pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed (see, to that effect, judgment of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 84 and the case-law cited).
99 If a person affected by the decision of the national resolution authority to take a crisis management measure was deprived of the right to obtain a reasoned judgment ruling on an action provided for in Article 85(3) of Directive 2014/59 validly brought by that person, the very substance of that person’s right to an effective remedy would be impaired.
100 Accordingly, in the present case, in the situation referred to in paragraph 97 of the present judgment, the referring court cannot rely on the erga omnes effect of a judgment ruling on an action such as that brought by the Supervisory Board of GN Bank as a ground for depriving any other persons affected of a reasonable opportunity to present their case.
101 Furthermore, it should be noted that the fact that the national administrative court is permitted to examine the legality of a decision being challenged before it in the light of any legal basis and any plea, independently of the pleas in law, forms of order sought and legal basis of the action against that decision, does not mean that that court necessarily reviewed that decision in the light of every relevant plea. It is not inconceivable that one of the actions that has not been heard has its basis in matters of fact or law not taken into consideration in the context of that review.
102 The answer to the first question is therefore that Article 85(3) of Directive 2014/59, in conjunction with Article 47 of the Charter, must be interpreted as meaning that, where a national court has been seised of more than one action against the decision of the national resolution authority to take a crisis management measure, and one of those actions was brought by an organ of the institution under resolution, the dismissal as unfounded of that one action alone does not permit the inference that respect for the right to an effective remedy has been ensured with regard to any other persons affected by that decision which have also brought actions against it, relying on pleas which have not been taken into account in the judgment given and which, in any event, have not been the subject of an exchange of arguments which enabled those persons to present their case.
103 By its third question, the referring court asks, in essence, whether Article 3(3) of Directive 2014/59 must be interpreted as meaning that that provision is not applicable in a situation in which the national resolution authority also performs functions as a temporary administrator within the meaning of Article 29 of that directive or deposit guarantee functions within the meaning of Directive 2014/49, with the effect that it does not require structural arrangements to be made in order to ensure the operational independence of that authority and to avoid any conflict of interest in relation to those functions.
104 The Polish Government pleads the inadmissibility of the third question, which it claims is hypothetical, on the ground, in essence, that the referring court does not specify what link exists between Article 3(3) of Directive 2014/59 and the review of the legality of the decision at issue in the main proceedings.
105 However, the Court notes that the answer to that question is linked to certain pleas in law submitted to the referring court by the applicants in the main proceedings, which are referred to in the request for a preliminary ruling, relating, in essence, to the alleged effect on the lawfulness of the decision at issue in the main proceedings of a purported lack of independence on the part of the BGF acting as resolution authority.
106 That question is therefore admissible.
107 Article 3(2) of Directive 2014/59 lays down the principle that resolution functions must be performed by public administrative authorities or by authorities entrusted with public administrative powers. It is also clear from Article 3(3) that those authorities may perform other functions and that the resolution authority may even be the competent authority for supervision for the purposes of Regulation No 575/2013 and of Directive 2013/36. However, where more than one function is performed, Article 3(3) provides that adequate structural arrangements must be made to ensure operational independence and to avoid any conflict of interest.
108 As the Advocate General noted, in essence, in points 34 and 36 of his Opinion, in such a context, the requirements relating to operational independence and the prevention of conflicts of interest set out in Article 3(3) of Directive 2014/59 concern the risk, associated with the performance of more than one function by the same entity, of that entity’s decision making being distorted, where it acts as a resolution authority, and are intended to protect that decision making against any influence external to the resolution task so that, when performing that task, the entity in question pursues only the objectives relating to the resolution mechanism.
109 In that regard, it is apparent from the use of very broad terms in that Article 3(3), which refers to ‘the functions of supervision … or the other functions of the relevant authority’ and to ‘the supervisory or other functions’ of that authority, and from the fact that the paragraph in question refers, inter alia, in very general terms, to ‘authorities entrusted with public administrative powers’ that the EU legislature intended to impose those requirements in respect of any other functions performed by the resolution authority wherever those functions inherently give rise to an objective risk of that nature.
110 That is undoubtedly the case as regards the functions of a temporary administrator within the meaning of Article 29 of Directive 2014/59 and deposit guarantee functions within the meaning of Directive 2014/49.
111 It is clear from Article 29 of Directive 2014/59, in the light of recital 40 thereof, and from Article 109 of that directive, among other provisions, that those functions are linked to the resolution mechanism since, first, the appointment of a temporary administrator occurs in the context of the taking of early intervention measures, which is aimed at preventing the opening of a resolution procedure but may be followed by the opening of such a procedure, and since, second, a deposit guarantee scheme can be used in the context of resolution and may, depending on the circumstances, have a claim against the resolution financing arrangement. Accordingly, it is not inconceivable that performance of one of those functions by the resolution authority might affect decision making in the context of the resolution functions.
112 Moreover, it is irrelevant that all those functions, by different means, pursue the same objective, that is to say, in essence, that of preserving financial stability. The same is also true of the supervisory functions provided for by Regulation No 575/2013 and Directive 2013/36, which are expressly referred to in Article 3(3) of Directive 2014/59 as functions in respect of which the operational independence of the resolution authority and the prevention of conflicts of interest must be ensured.
113 Finally, since, as the Advocate General noted, in essence, in point 47 of his Opinion, the requirements concerning independence and the prevention of conflicts of interest are the same in relation to supervisory functions as in relation to other functions performed by the resolution authority, it is not necessary to consider the nature, supervisory or otherwise, of the functions of temporary administrators.
114 It is clear from all the foregoing that Article 3(3) of Directive 2014/59 must be interpreted as meaning that that provision is applicable in a situation in which the national resolution authority also performs functions as a temporary administrator within the meaning of Article 29 of that directive or deposit guarantee functions within the meaning of Directive 2014/49, with the effect that it requires structural arrangements to be made in order to ensure the operational independence of that authority and to avoid any conflict of interest in relation to those functions.
115 The Polish Government disputes the admissibility of the fourth question, putting forward the same arguments as those set out in paragraph 104 of the present judgment, which have already been rejected on the grounds stated in paragraph 105 hereof, to which it is therefore sufficient to refer.
116 The Supervisory Board of GN Bank submits that the referring court is asking the Court of Justice not as to the interpretation of EU law but as to the assessment of the facts in the main proceedings. That question is, furthermore, hypothetical, since it envisages a situation in which the incompatibility of the national legislation with Directive 2014/59 is alleviated by measures which are not specifically identified.
117 In that regard, it should be noted that the admissibility of the fourth question cannot depend on the referring court indicating specific measures taken by the BGF in order to ensure its operational independence and prevent conflicts of interest in the context of its operation as a resolution authority, on the assumption that the absence of a framework of rules can be alleviated by means of such measures, since the referring court is seeking precisely to determine whether such a possibility is, as a matter of principle, in conformity with EU law.
118 It is also to be recalled that the national courts are free to refer questions to the Court at whatever stage of the proceedings they consider appropriate, provided that they explain, at the very least, the assumptions of fact on which the questions referred for a preliminary ruling are based (see, to that effect, order of 25 March 2022, IP and Others (Establishment of the accuracy of the facts in the main proceedings), C‑609/21, EU:C:2022:232, paragraph 21 and the case-law cited).
119 Furthermore, it follows from the considerations set out in paragraph 117 of the present judgment that the referring court is not asking the Court to make findings of a factual nature.
120 The present question is therefore admissible.
121 By its fourth question, the referring court asks, in essence, whether Article 3(3) of Directive 2014/59 must be interpreted as meaning that, where the national resolution authority also performs ‘functions of supervision’ or ‘other functions’ within the meaning of that provision, and where there are no written internal rules intended to ensure the operational independence of that authority and prevent conflicts of interest between its resolution functions and its other functions, there can nevertheless be compliance with those requirements as the result of the introduction of organisational and other measures that are sufficient for that purpose.
122 It should be noted, as a preliminary matter, that, first, it is clear from the terms of the third subparagraph of Article 3(3) of Directive 2014/59 that the necessary relevant internal rules for the purposes of that provision may be laid down not only by the Member State itself but also by the national resolution authority. Second, the provision also requires such rules to be made public.
123 Nevertheless, Article 3(3) of Directive 2014/59 does not prescribe either the form that those rules should take in internal law or specific arrangements for their publication.
124 Consequently, organisational and other adequate measures can constitute ‘internal rules’ within the meaning of that provision, in so far as they are described with sufficient precision. Furthermore, those internal rules may be made public by any appropriate means, provided that it enables all the persons concerned to be aware of them at all times.
125 Moreover, in view of the information contained in the request for a preliminary ruling, in order to provide the referring court with an answer of use for resolution of the dispute before it, it is necessary to make the following clarifications.
126 First, in respect of the substance of the adequate structural arrangements referred to in the first subparagraph of Article 3(3) of Directive 2014/59, the second subparagraph of that article provides that the staff involved in carrying out the tasks of the resolution authority are to be part of a separate organisational structure and subject to separate reporting lines from the staff involved in carrying out the other functions performed by that authority.
127 Those requirements, which relate expressly to staff, do not mean that an administrative authority which is entrusted with the resolution function in addition to other functions must have a separate decision-making body when it acts as a resolution authority. Such an obligation would render meaningless the option given to the Member States to appoint an existing administrative authority as a resolution authority, since it would amount, in practice, to requiring duplication of that existing authority.
128 It is also necessary to note, as the Advocate General does in point 49 of his Opinion, that, in a similar context, Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63) provides, in Article 25(4), that both decisions relating to the supervisory functions entrusted to that institution and those relating to its monetary policy tasks fall within the competence of the Governing Council.
129 Similarly, the requirements in question do not prevent an administrative authority which performs resolution functions in addition to other functions from being organised in such a way that certain internal functional areas, such as the legal department, the human resources department or technical departments, provide support services both to staff assigned to resolution functions and to staff assigned to other functions, without prejudice to rules on professional secrecy as referred to in the third subparagraph of Article 3(3) of Directive 2014/59, where such rules are necessary in order to ensure respect for the confidentiality of information.
130 Second, in respect of the consequences of any failure to make public the internal rules provided for in Article 3(3), it must be held that those rules are operational rules which do not, as such, have the effect of conferring rights on individuals, which are not involved in the decision-making procedure within the resolution authority. Furthermore, those rules are published fundamentally in the interests of transparency, with the aim of making their existence and content known to all the persons potentially concerned, and that publication has no effect, in particular, on their applicability.
131 It can be inferred from the foregoing that non-publication of the internal rules referred to in the third subparagraph of Article 3(3) of Directive 2014/59 does not automatically invalidate the decisions made by the resolution authority. However, if the non-publication of those rules is established during the hearing of an action against a decision of the resolution authority, it is for the latter to establish that, notwithstanding the absence of publication, those rules were complied with, and that the decision in question was accordingly made exclusively in order to achieve one or more resolution objectives referred to in Article 31 of Directive 2014/59, in accordance with Article 32(5) thereof.
132 The answer to the fourth question is therefore that Article 3(3) of Directive 2014/59 must be interpreted as meaning that, where the national resolution authority also performs ‘functions of supervision’ or ‘other functions’ within the meaning of that provision, and where there are no written internal rules intended to ensure the operational independence of that authority and prevent conflicts of interest between its resolution functions and its other functions, there can nevertheless be compliance with those requirements as the result of the introduction of organisational and other measures that are sufficient for that purpose. That provision does not mean, however, that decisions relating to resolution functions and those relating to the other functions of that authority must be made by different decision-making bodies, or that internal functional areas of the same authority are prevented from providing support services both to staff assigned to resolution functions and to staff assigned to other functions, without prejudice to rules on professional secrecy. Where written internal rules provided for in that provision exist, the fact that they are not published does not automatically invalidate decisions made by the resolution authority but means, where appropriate, in the event of actions against a decision of that authority, that it is for the latter to establish that those rules were complied with, and that the decision in question was accordingly made exclusively in order to achieve one or more resolution objectives.
133 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 1. Article 47 of the Charter of Fundamental Rights of the European Union 2. Article 85(3) 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, as amended in turn by Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, 3. Article 3(3) of Directive 2014/59, as amended by Directive 2019/879, 4. Article 3(3) of Directive 2014/59, as amended by Directive 2019/879,