Case T‑402/21

UniCredit Bank AG

v

Single Resolution Board

(Eighth Chamber, Extended Composition) of 17 July 2024

(Economic and monetary union – Banking union – Single Resolution Mechanism for credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Decision of the SRB on the calculation of the 2021 ex ante contributions – Obligation to state reasons – Right to be heard – Legal certainty – Effective judicial protection – Plea of illegality – Limitation of the temporal effects of the judgment)

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision of the Single Resolution Board (SRB) establishing the ex ante contributions to the Single Resolution Fund (SRF) – Failure to take account of risk indicators and sub-indicators in the calculation of those contributions – Whether permissible

   (Commission Regulation 2015/63, Art. 20(1))

   (see paragraphs 97, 98, 100)

2. Economic and monetary policy – Economic policy – Single resolution mechanism for credit institutions and certain investment firms – Ex ante contributions to the Single Resolution Fund – Failure to take account of risk indicators and sub-indicators in the calculation of those contributions – Conditions

   (Commission Regulation No 680/2014; Commission Regulation 2015/63, Arts 6, 7, 14 and 20(1); Commission Regulation 2021/451; Commission Regulation 2021/763; European Parliament and Council Directive 2014/59)

   (see paragraphs 254-258, 263, 264, 269, 271, 275-278, 283, 285)

Résumé

Hearing an action for annulment – which it upholds – the General Court annuls the decision of the Single Resolution Board (‘the SRB’) setting the 2021 ex ante contributions to the Single Resolution Fund (‘the SRF’), in so far as it concerns the applicant, UniCredit Bank, on account of the SRB’s failure to fulfil its obligation to state reasons relating to the determination of the annual target level.

In its judgment, the Court rules on the scope of the SRB’s obligation to set out the reasons why the Net Stable Funding Ratio risk indicator (‘the NSFR indicator’) and the ‘own funds and eligible liabilities held by the institution in excess of “minimum requirement for own funds and eligible liabilities”’ indicator (‘the MREL indicator’ and ‘the MREL’), as well as the ‘complexity’ and ‘resolvability’ risk sub-indicators, were not applied to calculate the ex ante contributions on both the national base and banking union base. ( 1 ) The Court also rules for the first time on the compliance of the non-application of those risk indicators and sub-indicators with Articles 6, 7 and 20 of Delegated Regulation 2015/63. ( 2 )

The applicant is a credit institution which has its registered office in Germany. On 14 April 2021, the SRB adopted a decision in which it set ( 3 ) the 2021 ex ante contributions to the SRF of credit institutions and certain investment firms, one of which was the applicant (‘the contested decision’). ( 4 )

Findings of the Court

In the first place, as regards the reasons for the SRB’s non-application of the NSFR and MREL risk indicators and of the ‘complexity’ and ‘resolvability’ risk sub-indicators referred to in Delegated Regulation 2015/63, ( 5 ) for the purposes of calculating the ex ante contributions for the 2021 contribution period, the Court notes that Article 20(1) of Delegated Regulation 2015/63 provides that, where the information required by a specific indicator as referred to in Annex II to that regulation is not included in the applicable supervisory reporting requirements referred to in Article 14 for the reference year, that risk indicator is not to apply until that supervisory reporting requirement becomes applicable.

In the present case, the SRB stated, in the contested decision, that it had not applied the NSFR and MREL indicators or the ‘complexity’ and ‘resolvability’ sub-indicators because, when that decision was adopted, the data required for them were not available in a harmonised form for all the institutions.

More specifically, as regards the NSFR indicator, the SRB noted that no binding harmonised NSFR standard had been applied in the European Union and that it had therefore been unable to identify indicators at national level. As regards the MREL indicator, the SRB stated that, because MREL requirements had, by-and-large, been implemented in an incremental manner, it did not have the data to enable it to apply that indicator at the level of each institution contributing to the SRF. As regards the ‘complexity’ and ‘resolvability’ sub-indicators, the SRB stated that the data required for those sub-indicators were not available in a harmonised form for all institutions in the participating Member States for the reference year 2019.

Consequently, the Court considers that such a statement of reasons allows the applicant to understand the reasons why the SRB did not apply the risk indicators and sub-indicators concerned and thus satisfies the requirements laid down by the case-law.

As regards the reasons why the SRB did not apply the NSFR and MREL indicators for the purposes of calculating the percentage of the ex ante contribution determined on the national base, the Court considers that the SRB provided adequate reasoning explaining that the data required for the application of those indicators were not available at national level. First, as regards the NSFR indicator, the SRB explained that it had not been able to identify indicators at national level, since it had deemed the supervisory reporting requirements in respect of that indicator to be inadequate. Second, as regards the MREL indicator, it is apparent from the contested decision that the SRB did not have data at national level enabling it to apply that indicator, due to the gradual implementation of the MREL-related requirements by the national resolution authorities.

As regards the reasons why the ‘complexity’ and ‘resolvability’ sub-indicators were not applied for the purposes of calculating the percentage of the ex ante contribution determined on the national base, the Court considers that, as a prudent economic operator, the applicant could understand, in the light of the wording of the contested decision and its context, that, because of the lack of resolution plans drawn up for all the German institutions, the SRB did not have adequate data at national level for the purposes of applying the ‘complexity’ and ‘resolvability’ sub-indicators.

In the second place, as regards the compliance of the non-application of those risk indicators and sub-indicators with the provisions of Delegated Regulation 2015/63, the Court points out, first of all, that that delegated regulation makes the possibility of not applying a risk indicator subject to the twofold condition, first, that the information required by such an indicator is not included in the supervisory reporting requirements referred to in Article 14 of that delegated regulation and, second, that that indicator is referred to in Annex II to that delegated regulation, which is entitled ‘Data to be submitted to the resolution authorities’.

As regards the first condition, the Court notes that, in order to determine whether ( 6 ) the information required by a specific risk indicator is included in the supervisory reporting requirements, it is for the SRB to ascertain whether the institutions were required to report that information for supervisory purposes to the competent authority for the reference year in question, in accordance with Implementing Regulation No 680/2014 ( 7 ) or national law. That reference year ( 8 ) is the year to which the approved annual financial statements available before 31 December of the year preceding the contribution period relate, that is to say, in the present case, the year 2019 (‘the relevant reference year’).

As regards the second condition, the Court states that Article 20(1) of Delegated Regulation 2015/63 is intended to apply not only where the data referred to in Annex II thereto are in themselves risk indicators, but also where that annex refers to data which, while not in themselves constituting risk indicators, are decisive for the calculation of such indicators which, for their part, are not mentioned in that annex. Accordingly, a risk indicator need not be applied where the data essential for the calculation of that indicator are included in that annex.

In that regard, the Court recalls that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it is part and its effectiveness. As regards that provision, it takes into account the fact that the process of establishing the supervisory requirements and the corresponding reporting requirements is gradual and takes place over time. In addition, the Court notes that Delegated Regulation 2015/63 was adopted at a time when those requirements had not yet been definitively adopted or were still subject to adjustments. It follows that those data necessary for the calculation of some of those risk indicators could not be available for all the institutions concerned or, at the very least, for all of the institutions which have their registered office in a Member State, for at least part of the initial period, it being recalled that those data could not be reported by way of supervisory information under EU law or, as the case may be, under national law.

In that context, the purpose of Article 20(1) of Delegated Regulation 2015/63 is to prevent disproportionate or discriminatory charges from being imposed, as the case may be, on institutions when calculating the ex ante contributions specifically because of that gradual implementation of the supervisory requirements and the related reporting requirements. Such a risk exists not only where the data in question are in themselves risk indicators, but also where those data, while not in themselves constituting such indicators, are nevertheless necessary for the calculation of those indicators.

Next, in the light of those considerations, the Court examines whether, when calculating the ex ante contributions for the 2021 contribution period, the SRB was entitled to refrain from applying two risk indicators, namely the NSFR and MREL indicators, and two risk sub-indicators, namely the ‘complexity’ and ‘resolvability’ sub-indicators, without infringing the provisions of Delegated Regulation 2015/63.

As regards the NSFR indicator, first, it follows from Implementing Regulation 2021/451 ( 9 ) that the requirement for institutions to report NSFR information for supervisory purposes, on a harmonised basis, was applicable only from 28 June 2021, that is to say, after the relevant reference year. In addition, without it being necessary to rule on whether the existence of an obligation to report NSFR information by way of supervisory information under national law means that the SRB was required to take it into account when determining that indicator, at least when calculating the ex ante contribution on the national base, the SRB explained that, in any event, there was no such obligation under the law of the Member State in which the applicant was established in respect of the relevant reference year. Thus, the Court observes that there is nothing in the case file to show that, for the relevant reference year, NSFR data were included in the supervisory reporting requirements under the law of the Member State. Second, the NSFR indicator is included the data expressly listed in Annex II to Delegated Regulation 2015/63. The Court concludes that the SRB did not infringe the provisions of Delegated Regulation 2015/63 by not taking account of the NSFR indicator in the calculation of the ex ante contributions for the 2021 contribution period.

As regards the MREL indicator, no provision of Implementing Regulation No 680/2014 required the institutions to provide, for the relevant reference year, information on their eligible liabilities to the competent authority by way of supervisory information. Such an obligation was introduced only from 28 June 2021, by Implementing Regulation 2021/763. ( 10 ) Article 45(1) of Directive 2014/59 ( 11 ) does not call that into question, since it does not contain any obligation to report eligible liabilities by way of supervisory information during the relevant reference year. In addition, without it being necessary to rule on whether the existence of an obligation to report eligible liabilities by way of supervisory information under national law means that the SRB was required to take them into account when determining the MREL indicator, at least when calculating the ex ante contribution on the national base, the SRB explained that, in any event, there was no such obligation under the law of the Member State in respect of the relevant reference year. Thus, there is nothing in the documents before the Court to show that, under German law, MREL-related information was subject to supervisory reporting requirements during the relevant reference year. Furthermore, although the MREL indicator is not mentioned as such in Annex II to Delegated Regulation 2015/63, that annex nevertheless refers to ‘eligible liabilities’ among the data to be submitted to the resolution authorities. Moreover, those liabilities constitute data which are decisive for the calculation of that risk indicator, which is based on data such as, inter alia, own funds, eligible liabilities and the MREL, it being understood that, for the purposes of calculating that indicator, the SRB must determine the amount by which own funds and eligible liabilities exceed the MREL.

In those circumstances, the SRB was entitled to refrain from applying the MREL indicator without infringing Delegated Regulation 2015/63.

With regard to the ‘complexity’ and ‘resolvability’ risk sub-indicators, it follows from Delegated Regulation 2015/63 ( 12 ) that, when determining the ‘complexity’ sub-indicator, the SRB is required to take into account the extent to which the business model and organisational structure of the institution concerned are deemed to be complex. ( 13 ) Similarly, when determining the ‘resolvability’ sub-indicator, the SRB must take into account the extent to which that institution can be resolved promptly and without legal impediments. According to Directive 2014/59, ( 14 ) the resolvability assessment of an institution is to be made by the resolution authority at the same time as and for the purposes of the drawing up and updating of the resolution plan. Furthermore, in order to assess the resolvability of an institution, it is necessary to take into account the complexity of the structure of the institution. In those circumstances, the complexity assessment is also to be made when drawing up the resolution plan. The drawing up of the resolution plan therefore constitutes a prerequisite for the determination by the SRB of the ‘complexity’ and ‘resolvability’ sub-indicators. Furthermore, for the purposes of drawing up an institution’s resolution plan, the resolution authority is to take into account, as a minimum, the matters provided for in that directive. ( 15 ) The matters it must take into consideration include the amount and type of bail-inable liabilities. Those liabilities correspond to ‘eligible liabilities’ within the meaning of Delegated Regulation 2015/63, which constitute a necessary piece of data to enable the SRB to set the ‘complexity’ and ‘resolvability’ risk sub-indicators.

In that regard, it is apparent that, first, the institutions were not required, under Implementing Regulation No 680/2014, to report eligible liabilities for supervisory purposes to the competent authority for the relevant reference year. Second, without it being necessary to rule on whether the possible existence of such an obligation to report eligible liabilities means that the SRB was required to take them into account when determining the ‘complexity’ and ‘resolvability’ sub-indicators, at least as regards calculating the ex ante contribution on the national base, there is nothing before the Court to show that such an obligation existed under national law.

Consequently, the first condition laid down in Article 20(1) of Delegated Regulation 2015/63 is satisfied as regards those risk sub-indicators. As regards the second condition laid down in that article, although those sub-indicators are not included, as such, in Annex II to Delegated Regulation 2015/63, eligible liabilities, which are a necessary piece of data for the determination of those sub-indicators, are expressly referred to therein.

Therefore, the Court finds that the SRB did not infringe Articles 6, 7 and 20 of Delegated Regulation 2015/63 by not taking account of the ‘complexity’ and ‘resolvability’ sub-indicators for the 2021 contribution period.

( 1 ) On the ‘national base’ means on the basis of the data communicated by institutions authorised in the territory of the participating Member State concerned. On the ‘banking union base’ means on the basis of the data communicated by all of the institutions authorised in the territories of all of the Member States participating in the Single Resolution Mechanism (SRM).

( 2 ) Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

( 3 ) In accordance with Article 70(2) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

( 4 ) Decision SRB/ES/2021/22 of the Single Resolution Board of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund.

( 5 ) Point (a) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63.

( 6 ) In accordance with Article 20(1) of Delegated Regulation 2015/63.

( 7 ) Commission Implementing Regulation (EU) No 680/2014 of 16 April 2014 laying down implementing technical standards with regard to supervisory reporting of institutions according to Regulation (EU) No 575/2013 of the European Parliament and of the Council (OJ 2014 L 191, p. 1).

( 8 ) According to Article 4(1) of Delegated Regulation 2015/63 read together with Article 14(1) to (4) thereof.

( 9 ) Commission Implementing Regulation (EU) 2021/451 of 17 December 2020 laying down implementing technical standards for the application of Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to supervisory reporting of institutions and repealing Implementing Regulation (EU) No 680/2014 (OJ 2021 L 97, p. 1).

( 10 ) Commission Implementing Regulation (EU) 2021/763 of 23 April 2021 laying down implementing technical standards for the application of Regulation (EU) No 575/2013 of the European Parliament and of the Council and Directive 2014/59/EU of the European Parliament and of the Council with regard to the supervisory reporting and public disclosure of the minimum requirement for own funds and eligible liabilities (MREL) (OJ 2021 L 168, p. 1).

( 11 ) 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).

( 12 ) According to Article 6(6)(a)(iv) of Delegated Regulation 2015/63.

( 13 ) In accordance with Chapter II of Title II of Directive 2014/59.

( 14 ) In accordance with Article 15(3) of Directive 2014/59.

( 15 ) As set out in Section C of the Annex to Directive 2014/59.