Provisional text

JUDGMENT OF THE GENERAL COURT (Eighth Chamber, Extended Composition)

21 February 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 2016 ex ante contributions – Duty to state reasons – Principle of non-retroactivity – Article 5(1)(f) of Delegated Regulation (EU) 2015/63 – Exclusion of certain liabilities from the calculation of ex ante contributions – Promotional loans – Ancillary promotional activities – Plea of illegality )

In Case T‑466/16 RENV,

NRW.Bank, established in Düsseldorf (Germany), represented by J. Seitz and C. Marx, lawyers,

applicant,

v

Single Resolution Board (SRB), represented by H. Ehlers, J. Kerlin and C. De Falco, acting as Agents, assisted by B. Meyring, S. Schelo, T. Klupsch and S. Ianc, lawyers,

defendant,

supported by

Council of the European Union, represented by A. Sikora-Kalėda and J. Bauerschmidt, acting as Agents,

and by

European Commission, represented by D. Triantafyllou, A. Steiblytė and A. Nijenhuis, acting as Agents,

interveners,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

composed of A. Kornezov, President, G. De Baere, D. Petrlík (Rapporteur), K. Kecsmár and S. Kingston, Judges,

Registrar: S. Jund, Administrator,

having regard to the judgment of 14 October 2021, NRW.Bank v SRB (C‑662/19 P, EU:C:2021:846),

further to the hearing on 9 March 2023,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, NRW.Bank, seeks the annulment of Decision SRB/ES/2022/23 of the Single Resolution Board (SRB) of 27 April 2022 withdrawing Decision SRB/ES/SRF/2016/06 of the SRB of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund, in so far as it concerns NRW.Bank, and Decision SRB/ES/SRF/2016/13 of the SRB of 20 May 2016 on the adjustment of the 2016 ex-ante contributions to the Single Resolution Fund supplementing Decision SRB/ES/SRF/2016/06, in so far as it concerns NRW.Bank, and calculating the 2016 ex-ante contributions to the Single Resolution Fund of NRW.Bank (‘the contested decision’).

I.      Background to the dispute and events subsequent to the bringing of the present action

2        The applicant is the promotional bank of the Land Nordrhein-Westfalen (Land of North Rhine-Westphalia, Germany; ‘the Land’). In accordance with the Gesetz über die NRW.BANK (Law on the NRW.Bank) of 16 March 2004 (GV. NRW. 2004, p. 126; ‘the Law on the NRW.Bank’), it performs a public service mission consisting in assisting the Land and its local authorities in the field of structural, economic, social and land-use planning policies, by implementing and administering support measures for that purpose, in particular by granting loans. To that end, the applicant carries out banking transactions and holds a banking licence.

3        The applicant’s activities are essentially divided into two categories. First, it carries out ‘promotional’ activities, as part of which it grants, inter alia, subsidised loans in the fields set out in Paragraph 3(2) of the Law on the NRW.Bank (‘the promotional activities’).

4        Second, the applicant carries out activities which it refers to as ‘ancillary promotional activities’. It is those activities which are at issue in this case and which are provided for in Paragraph 3(5) of the Law on the NRW.Bank. Under that provision, with a view to performing its duties, the applicant may ‘carry out transactions and provide services directly connected with the performance of its duties[, it being understood that, in that regard,] it can carry out inter alia cash and risk management transactions, raise subordinated guarantee capital, trade in participation certificates, government bonds and other bonds, and acquire and assign receivables’ (‘the ancillary promotional activities’). In the context of those activities, the applicant acquires, in particular, funds on the capital market and invests them over the long term in the form of bonds, most of which take the form of public-sector securities.

5        By its Decision SRB/ES/SRF/2016/06 of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund, the SRB set, pursuant to Article 70(2) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1), the ex ante contributions to the Single Resolution Fund (SRF) (‘the ex ante contributions’) for 2016 (‘the 2016 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation (‘the institutions’), including the applicant.

6        By its Decision SRB/ES/SRF/2016/13 of 20 May 2016 on the adjustment of the 2016 ex-ante contributions to the SRF supplementing Decision SRB/ES/SRF/2016/06, the SRB increased the applicant’s ex ante contribution following a correction of the calculation of the ex ante contributions of all of the institutions for the 2016 contribution period.

7        By assessment notices of 22 April and 10 June 2016, the Bundesanstalt für Finanzmarktstabilisierung (Federal Agency for Financial Market Stabilisation, Germany; ‘the FMSA’), in its capacity as the national resolution authority within the meaning of Article 3(1)(3) of Regulation No 806/2014, ordered the applicant to pay its ex ante contribution for the 2016 contribution period, as set by the SRB.

8        On 27 April 2022, the SRB adopted the contested decision, by which it withdrew and replaced the decisions referred to in paragraphs 5 and 6 above (‘the initial decisions’). According to recitals 19 and 20 of the contested decision, the purpose of that decision was to remedy the defective statement of reasons for the initial decisions found to exist by the SRB further to the judgments of 28 November 2019, Hypo Vorarlberg Bank v SRB (T‑377/16, T‑645/16 and T‑809/16, EU:T:2019:823), and of 28 November 2019, Portigon v SRB (T‑365/16, EU:T:2019:824).

II.    Contested decision

9        The contested decision consists of the body of that decision, together with three annexes.

10      The body of the contested decision sets out, in Sections 3 to 9 and 11, the process for determining the ex ante contributions for the 2016 contribution period; that process applies to all of the institutions.

11      Specifically, in Section 6 of the contested decision, the SRB set the annual target level, to which reference is made in Article 4 of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1) for the 2016 contribution period (‘the annual target level’).

12      The SRB explained that it had set that annual target level at one eighth of 1.05% of the amount of covered deposits, calculated at the end of the year, of all of the institutions in 2015, as that amount had been obtained from the data communicated by the institutions pursuant to Article 14(2) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

13      In Section 7 of the contested decision, the SRB described the method to be used to calculate the ex ante contributions for the 2016 contribution period. In that regard, it stated, in recital 91 of that decision, that, for that period, 60% of the ex ante contributions had been calculated on the ‘national base’, that is to say, on the basis of the data communicated by the institutions authorised in the territory of the participating Member State concerned (‘the national base’), in accordance with Article 103 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council (OJ 2014 L 173, p. 190) and with Article 4 of Delegated Regulation 2015/63. The remainder of the ex ante contributions (40%) were calculated on the ‘Banking Union base’, that is to say, on the basis of the data communicated by all of the institutions authorised in the territories of the all of the Member States participating in the Single Resolution Mechanism (SRM) (‘the union base’ and ‘the participating Member States’) in accordance with Articles 69 and 70 of Regulation No 806/2014 and Article 4 of Implementing Regulation 2015/81.

14      Next, the SRB calculated the ex ante contributions of the institutions, such as the applicant, in accordance with the following main stages.

15      In the first stage, the SRB calculated, in accordance with point (a) of the second subparagraph of Article 70(2) of Regulation No 806/2014, the basic annual contribution of each institution, which is pro-rata based on the amount of the liabilities of the institution concerned excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. Pursuant to Article 5(1) of Delegated Regulation 2015/63, the SRB deducted certain types of liabilities from the total liabilities of the institution to be taken into account in order to determine that contribution.

16      In the second stage of the calculation of the ex ante contributions, the SRB adjusted the basic annual contribution in line with the risk profile of the institution concerned, in accordance with point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014. It assessed that risk profile on the basis of the four risk pillars set out in Article 6 of Delegated Regulation 2015/63, which consist of risk indicators. With a view to classifying the institutions according to their risk level, the SRB began by establishing – for each risk indicator applied for the 2016 contribution period – bins into which the institutions were grouped, in accordance with point 3 of ‘Step 2’ in Annex I to that delegated regulation. Institutions belonging to the same bin were assigned a common value for the particular risk indicator, referred to as the ‘discretized value’. Combining the discretized values for each risk indicator, the SRB calculated the ‘risk adjusting multiplier’ of the institution concerned (‘the adjusting multiplier’). By multiplying the basic annual contribution of that institution by its adjusting multiplier, the SRB obtained the ‘risk-adjusted basic annual contribution’ of the institution.

17      Next, the SRB added together the risk-adjusted basic annual contributions to get a ‘common denominator’ which is used to calculate the share of the annual target level which each institution had to pay.

18      Finally, the SRB calculated the ex ante contribution of each institution by distributing the annual target level among all of the institutions on the basis of the ratio between the risk-adjusted basic annual contribution, on the one hand, and the common denominator, on the other hand.

19      Annex I to the contested decision contains the applicant’s individual sheet, which includes the results of the calculation of its ex ante contribution (‘the individual sheet’). That sheet sets out the amount of the applicant’s basic annual contribution as well as the value of its adjusting multiplier, both on the union base and on the national base, stating for each risk indicator the number of the bin to which the applicant was assigned. In addition, the individual sheet sets out data used to calculate the ex ante contributions of all of the institutions concerned, which the SRB determined by adding together or combining the individual data of all of those institutions. Finally, that sheet includes the data reported by the applicant in the reporting form and used in the calculation of its ex ante contribution.

20      Annex II to the contested decision contains statistical data relating to the calculation of the ex ante contributions for each participating Member State, in summary and collective form. That annex states, inter alia, the total amount of the ex ante contributions to be paid by the institutions concerned for each of those Member States. Furthermore, the annex lists, for each risk indicator, the number of bins, the number of institutions belonging to each of the bins and the minimum and maximum values of those bins. In the case of the bins relating to the national base, those values are reduced or increased by a random amount for reasons of confidentiality, with the original distribution between the institutions being maintained.

21      Annex III to the contested decision, entitled ‘Evaluation of the submissions made by [the applicant] in the consultation on the 2016 ex-ante contributions to the Single Resolution Fund’, examines the observations submitted by the applicant during the consultation procedure conducted by the SRB before the adoption of the contested decision.

22      Specifically, in paragraphs 21 and 27 to 31 of Annex III to the contested decision, the SRB set out the reasons why the liabilities related to the ancillary promotional activities were not excluded, pursuant to Article 5(1)(f) of Delegated Regulation 2015/63, from the calculation of the applicant’s ex ante contribution.

III. Forms of order sought

23      The applicant claims that the Court should:

–        annul the contested decision, including the annexes thereto, in so far as those annexes concern it;

–        order the SRB to pay the costs.

24      The SRB contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs;

–        in the alternative, if the Court takes the view that the contested decision should not have been adopted with retroactive effect, annul that decision only to that extent or annul only Article 4 thereof and maintain the decision as to the remainder;

–        in the further alternative, if the contested decision is annulled in its entirety, maintain the effects of that decision until it is replaced or, at the very least, for a period of six months from the date on which the judgment becomes final.

25      The Council of the European Union and the European Commission contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

IV.    Law

26      In the application, the applicant essentially relied on two pleas in law. By the first plea, it raised a plea of illegality in respect of Article 5(1)(f) of Delegated Regulation 2015/63 and Implementing Regulation 2015/81. In that regard, it claimed that, if those provisions do not permit the exclusion of the liabilities related to the ancillary promotional activities from the calculation of its ex ante contribution, they infringe Article 103(2) and (7) of Directive 2014/59 and Article 70(2) and (7) of Regulation No 806/2014. By the second plea in law, the applicant argued that, by not excluding the liabilities related to those activities from the calculation of that contribution, the SRB had misinterpreted Article 5(1)(f) of Delegated Regulation 2015/63.

27      In the statement of modification, lodged at the General Court Registry on 11 July 2022 pursuant to Article 86 of the Rules of Procedure of the General Court, the applicant states that it maintains all of the arguments set out in the application, whilst explaining that it raises new pleas in response to the replacement of the initial decisions by the contested decision.

28      Thus, the applicant raises a total of eleven pleas in law, alleging:

–        first and seventh, infringement of Article 41(1) and (2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), because the SRB did not hear the applicant’s submissions, as legally required, concerning both the replacement, with retroactive effect, of the initial decisions by the contested decision and the adoption of the latter decision itself;

–        second, infringement of higher-ranking rules, as there is no legal basis for the replacement, with retroactive effect, of the initial decisions by the contested decision;

–        third, infringement of the second paragraph of Article 296 TFEU and of Article 41(2)(c) of the Charter, because the contested decision does not state any legal basis forming the basis for the replacement of the initial decisions with retroactive effect;

–        fourth, infringement of the second paragraph of Article 296 TFEU, because the contested decision does not contain an adequate statement of reasons as regards the calculation of its ex ante contribution;

–        fifth, infringement of the right to effective judicial protection enshrined in Article 47(1) of the Charter, because the contested decision does not contain an adequate statement of reasons;

–        sixth, infringement by the contested decision of the general procedural requirements arising from Article 41 of the Charter, Article 298 TFEU, general legal principles and the SRB’s rules of procedure;

–        eighth, infringement of Article 5(1)(f) of Delegated Regulation 2015/63, Article 103(2) and (7) of Directive 2014/59, Article 70(2) and (7) of Regulation No 806/2014, the principle of equal treatment, the EU legislature’s intention to give full priority to promotional banks and the objective of relieving pressure on public budgets, because the SRB failed to exclude the liabilities related to its ancillary promotional activities from the calculation of its ex ante contribution;

–        ninth, in the alternative, the unlawfulness of Article 5(1)(f) of Delegated Regulation 2015/63 and Implementing Regulation 2015/81, because they are contrary to higher-ranking rules;

–        tenth, the unlawfulness of point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63 and of ‘Step 2’ in Annex I thereto, because those provision are contrary to higher-ranking rules;

–        eleventh, infringement of general legal principles, because the SRB wrongly failed to rely on the points of law in force existing on the date of adoption of the contested decision.

29      It is appropriate to begin by examining the pleas by which the applicant raises a plea of illegality with regard to Article 5(1)(f) and point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63, and to ‘Step 2’ in Annex I thereto, before turning to the pleas directly concerning the lawfulness of the contested decision.

A.      The pleas of illegality with regard to Article 5(1)(f) and point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63, and to ‘Step 2’ in Annex I thereto

1.      The ninth plea, based on a plea of illegality in respect of Article 5(1)(f) of Delegated Regulation 2015/63

(a)    Preliminary observations

30      In the first place, it must be observed that, while, in the application, the applicant contests the validity both of Article 5(1)(f) of Delegated Regulation 2015/63 and of Implementing Regulation 2015/81 in its entirety, its arguments relate, in essence, to the first provision only. This is confirmed by the applicant’s response of 13 June 2022 to the measure of organisation of procedure of 20 May 2022, in which it stated that the unlawfulness of Article 5(1)(f) of Delegated Regulation 2015/63 also means that Article 4 of Implementing Regulation 2015/81 is unlawful, because the latter provision refers to the method of calculation set out in Delegated Regulation 2015/63.

31      In those circumstances, it is necessary to begin by assessing the validity of Article 5(1)(f) of Delegated Regulation 2015/63.

32      In the second place, it is necessary to examine the SRB’s argument that the ninth plea is admissible only to the extent that it was raised in the application, given that, according to the SRB, the application contains only a brief and hypothetical summary of the arguments in support of that plea. Thus, the SRB is essentially of the view that the General Court cannot take account of the additional considerations put forward in support of that plea in the statement of modification, since those considerations are substantive and not ‘justified’, within the meaning of Article 86 of the Rules of Procedure, by the adoption of the contested decision.

33      Under Article 86(1) of the Rules of Procedure, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, or before the decision of the General Court to rule without an oral part of the procedure, modify the application to take account of that new factor.

34      In the present case, first, it must be observed that the considerations submitted in the statement of modification in support of the ninth plea are based on pleas of illegality and arguments raised in the application and relating both to the scope of Article 5(1)(f) of Delegated Regulation 2015/63 and to all of the parts of the ninth plea, as examined below.

35      Second, as regards the scope of Article 5(1)(f) of Delegated Regulation 2015/63, the contested decision contains a new summary of the reasons why the SRB considered that that provision did not allow the liabilities related to the applicant’s ancillary promotional activities to be excluded from the calculation of its ex ante contribution, whereas the initial decisions did not contain any explicit statement of reasons in that connection.

36      In those circumstances, the SRB’s objection can only be rejected.

37      In the third place, it is appropriate to observe that, following the hearing held on 9 March 2023, the applicant requested that the Court adopt a measure of organisation of procedure to allow the parties to set out their views in writing on the separability of the promotional activities and the ancillary promotional activities. The applicant stated in that regard that, at the hearing, the SRB argued, for the first time, that it was not possible to draw a clear distinction between the two types of activities carried on by the applicant. By decision of 16 May 2023, the President of the Eighth Chamber, Extended Composition, of the General Court refused that request on the ground that the applicant had had the opportunity to set out its views on the arguments presented by the SRB at the hearing in its final reply.

38      In the fourth place, the applicant raised a plea of illegality in respect of Article 5(1)(f) of Delegated Regulation 2015/63 only in the alternative, in the event that the Court were to find that that provision did not allow the liabilities related to its ancillary promotional activities to be excluded from the calculation of its ex ante contribution.

39      It is therefore necessary to examine, as a first step, whether Article 5(1)(f) of Delegated Regulation 2015/63 allows the liabilities relating to the ancillary promotional activities to be excluded from the calculation of the applicant’s ex ante contribution and, if not, it is necessary to assess, as a second step, whether that provision is consistent with Article 103(2) and (7) of Directive 2014/59 and with Article 70(2) and (7) of Regulation No 806/2014.

(b)    The scope of Article 5(1)(f) of Delegated Regulation 2015/63

40      Under Article 5(1)(f) of Delegated Regulation 2015/63, ‘in [the] case of institutions operating promotional loans, the liabilities of the intermediary institution towards the originating or another promotional bank or another intermediary institution and the liabilities of the original promotional bank towards its funding parties in so far as the amount of these liabilities is matched by the promotional loans of that institution’ are to be excluded from the calculation of the ex ante contributions.

41      Pursuant to Article 3(28) of Delegated Regulation 2015/63, ‘promotional loan’ means ‘a loan granted by a promotional bank or through an intermediate bank on a non-competitive, no[t] for profit basis, in order to promote the public policy objectives of central or regional governments in a Member State’.

42      The applicant claims that those provisions must be interpreted as meaning that they allow the liabilities related to ancillary promotional activities, such as those described in paragraph 4 above, to be excluded from the calculation of its ex ante contribution.

43      The SRB, supported by the Commission and the Council, disputes that line of argument.

44      It follows from case-law that Article 5(1) of Delegated Regulation 2015/63 does not confer any discretion on the SRB to exclude certain liabilities when adjusting the ex ante contributions in proportion to risk, but rather lists precisely the conditions governing whether a liability can be so excluded (see, to that effect, judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 93). Under that same case-law, the account taken of the principles of equal treatment, non-discrimination and proportionality cannot justify any other outcome, since Delegated Regulation 2015/63 distinguished situations that have significant and specific features, directly linked to the risks inherent in the liabilities at issue (judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 95).

45      In that context, it must be observed that Article 5(1)(f) of Delegated Regulation 2015/63 lays down three conditions for the exclusion of the liabilities concerned from the calculation of the ex ante contributions; those conditions are cumulative, meaning that if one of them is not met, the liabilities concerned cannot be excluded from that calculation.

46      First, in order to be eligible for exclusion from the calculation of the ex ante contributions, the liabilities must be held by an institution operating promotional loans.

47      Second, those liabilities must be ‘liabilities of the intermediary institution towards the originating or another promotional bank or another intermediary institution’ or ‘liabilities of the original promotional bank towards its funding parties’.

48      Third, the liabilities at issue can be excluded from the calculation of the liabilities used to determine the ex ante contribution only ‘in so far as the amount of these liabilities is matched by the promotional loans of that institution’.

49      Here, the parties are in disagreement as to whether the liabilities related to ancillary promotional activities, such as those referred to in paragraph 4 above, satisfy the third condition set out in paragraph 48 above, namely that the amount of those liabilities must match the amount of the promotional loans operated by the promotional bank concerned.

50      In that regard, it is apparent, first of all, from the wording of Article 5(1)(f) of Delegated Regulation 2015/63, to which reference is made in paragraph 48 above, in particular from the use of the words ‘in so far as’, that the liabilities at issue can be excluded from the calculation of the ex ante contribution of the institution concerned only up to the amount of the promotional loans operated by that institution, as defined in Article 3(28) of Delegated Regulation 2015/63.

51      Thus, contrary to what the applicant appears to suggest, that provision does not permit the exclusion, from the calculation of the ex ante contribution, of all of the liabilities of a promotional bank which are connected, in some way, with the performance of its promotional role, but only those liabilities corresponding exactly to the amount of the promotional loans operated by such a bank.

52      Furthermore, on the question of whether ancillary promotional activities, such as those described in paragraph 4 above, can fall within the concept of a ‘promotional loan’, within the meaning of Article 3(28) of Delegated Regulation 2015/63, it is apparent from the explanations provided by the applicant in its statement of modification and at the hearing that the activities relevant for the purpose of the present plea of illegality consist, inter alia, in the acquisition of debt securities on the capital market.

53      In that regard, without it being necessary to examine whether such transactions can be categorised as ‘loans’, it follows from the wording of Article 3(28) of that delegated regulation, as reproduced in paragraph 41 above, that, in order to constitute promotional loans, those transactions must, in any event, satisfy the condition that they must be carried out ‘on a non-competitive, no[t] for profit basis’.

54      Contrary to what the applicant claims, that condition must be satisfied not only in the case of a loan granted by an intermediary institution, but also in the case of a loan granted by a promotional bank. That finding is not invalidated by the English-language or French-language versions of Article 3(28) of Delegated Regulation 2015/63, upon which the applicant has relied. In that regard, it follows from the wording of those two language versions – just as it does from the other language versions, including, in particular, the Spanish, Italian and Polish language versions – that the condition resulting from the use of the words ‘on a non-competitive, no[t] for profit basis’ is linked to the use of the term ‘granted’, and therefore it relates both to ‘a promotional bank’ and to ‘an intermediary institution’. In this regard, the mere fact that the condition immediately follows the latter words does not mean that it concerns only promotional loans granted by intermediary institutions.

55      That interpretation is borne out, moreover, by the German-language version of Article 3(28) of Delegated Regulation 2015/63. In that version, the condition resulting from the use of the words ‘on a non-competitive, no[t] for profit basis’ precedes the term ‘loan’ and thus applies equally to both situations concerned, that is to say, both to the grant of promotional loans by an intermediary institution and to the grant of promotional loans by a promotional bank.

56      The conclusion set out in paragraph 54 above is likewise confirmed by the first sentence of recital 13 of Delegated Regulation 2015/63, which explicitly refers to the condition resulting from the use of the words ‘on a non-competitive, not for profit basis’ in the context of the loans directly granted by a promotional bank.

57      Similarly, the condition is an integral part of Article 3(27) of Delegated Regulation 2015/63, which defines the concept of ‘promotional bank’ as referring to any undertaking or entity set up by a central or regional government of a Member State, which grants promotional loans ‘on a non-competitive, not for profit basis’.

58      It follows that, in order for a transaction to be regarded as a promotional loan within the meaning of Article 5(1)(f) of Delegated Regulation 2015/63, the condition resulting from the use of the words ‘on a non-competitive, no[t] for profit basis’ must be satisfied not only in the case of an intermediary institution, but also in that of a promotional bank.

59      However, as far as concerns ancillary promotional activities consisting in the acquisition of debt securities on the capital market, such as those referred to in paragraph 52 above, there is nothing to show that such acquisitions satisfy the condition laid down in paragraph 58 above.

60      First, it is not disputed that such transactions are carried out on the open capital market upon which other actors operate. Those other actors perform the same types of transactions and can acquire the same debt securities as promotional banks, and on the same market terms as those banks. In addition, on such a market, promotional banks are, by definition, in direct competition with those other market players, and therefore the activity concerned cannot be regarded as being pursued on a non-competitive basis.

61      Second, the applicant itself concedes that the activities consisting in the acquisition of debt securities on the capital market are intended to generate, and they do generate, income, because they consist in producing interest margins in order to finance the banking activity as such of promotional banks, such as the applicant. Accordingly, those activities cannot be regarded as being pursued on a not-for-profit basis.

62      That conclusion is not called into question by the applicant’s argument that the ‘ultimate objective’ of the activities is not to make a profit because it is prohibited from distributing dividends. The not-for-profit nature of an activity, for the purpose of applying Article 3(28) of Delegated Regulation 2015/63, is assessed having regard to the nature of each activity concerned, it being irrelevant whether or not the profits generated by that activity are subsequently used to finance promotional activities, which are pursued on a not-for-profit basis. Any other interpretation would effectively mean regarding the activities concerned as being of a not-for-profit nature solely because they are carried on by a promotional bank; this would render meaningless the condition resulting from the use of the words ‘on a non-competitive, no[t] for profit basis’, provided for in Article 3(28) of Delegated Regulation 2015/63.

63      In the light of the foregoing, Article 5(1)(f) of Delegated Regulation 2015/63, read in conjunction with Article 3(27) and (28) of that same delegated regulation, must be interpreted as meaning that it does not allow the liabilities related to the ancillary promotional activities of promotional banks, such as the applicant, to be excluded from the calculation of their ex ante contribution.

(c)    The legality of Article 5(1)(f) of Delegated Regulation 2015/63

64      If Article 5(1)(f) of Delegated Regulation 2015/63 is to be interpreted as meaning that it does not allow the liabilities related to its ancillary promotional activities to be excluded from the calculation of its ex ante contribution, the applicant raises a plea of illegality in respect of that provision, claiming that it is incompatible with Article 103(2) and (7) of Directive 2014/59 and with Article 70(2) and (7) of Regulation No 860/2014.

65      As a preliminary point, it must be stated, first, that the applicant develops its arguments primarily with regard to Article 103(2) and (7) of Directive 2014/59 and that it relies on an infringement of Article 70(2) and (7) of Regulation No 806/2014 only on account of the reference made by Implementing Regulation 2015/81 to the method of calculation set out in Delegated Regulation 2015/63.

66      Second, it is apparent from the application that the applicant pleads the unlawfulness of Article 5(1)(f) of Delegated Regulation 2015/63 by putting forward, in reality, three parts, alleging, first, a failure to have regard to the travaux préparatoires for Directive 2014/59; second, infringement of the objective of relieving pressure on public budgets; and, third, a failure to have regard to the principle of aligning the ex ante contributions with the risk profile and to the principle of equal treatment.

(1)    The first part, alleging a failure to have regard to the travaux préparatoires for Directive 2014/59

67      The applicant submits that, by failing to exclude all of the liabilities related to the activities of the promotional banks concerned, which are backed by a public guarantee, from the calculation of their ex ante contribution, including therefore those related to their ancillary promotional activities, Article 5(1)(f) of Delegated Regulation 2015/63 is inconsistent with the travaux préparatoires for Directive 2014/59. During the legislative process, the Parliament proposed that account be taken of the special significance of such banks and of their public-service mission when determining ex ante contributions, by not including such liabilities in the calculation of those contributions. The fact that the Parliament’s amendment concerning such an exclusion was not reproduced in the final text of that directive is due not to a substantive disagreement but rather to a misunderstanding. Thus, the exclusion was envisaged as early as when the directive was adopted and should have been taken into consideration when Delegated Regulation 2015/63 was adopted.

68      The SRB, the Council and the Commission dispute that line of argument.

69      In that regard, it must be recalled that the ex ante contributions are imposed and calculated on the basis of Article 70(2) of Regulation No 806/2014.

70      That provision states that the ‘institutions’ within the meaning of Article 3(1)(13) of Regulation No 806/2014 are required to contribute to the SRF.

71      It follows from Article 3(1)(13) of Regulation No 806/2014, read in conjunction with Article 3(2) of that same regulation and with Article 2(1)(2) of Directive 2014/59, that those institutions include, inter alia, credit institutions within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1), which do not number amongst the entities covered by Article 2(5) of 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).

72      In the light of those provisions, the regional promotional banks of the Federal Republic of Germany which constitute credit institutions within the meaning of Article 4(1)(1) of Regulation No 575/2013 (‘the regional promotional banks’), such as the applicant, were not exempt from the general scheme of payment of ex ante contributions, given that they did not number amongst the entities excluded from the scope of Regulation No 806/2014 pursuant to Article 2(5) of Directive 2013/36, in the version of that directive applicable to the 2016 contribution period.

73      First, unlike the Kreditanstalt für Wiederaufbau (KfW), which is the national promotional bank of the Federal Republic of Germany, the regional promotional banks, such as the applicant, were not covered by Article 2(5)(6) of Directive 2013/36 in the version of that directive applicable before its amendment by Directive 2019/878 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 150, p. 253).

74      Second, while it is apparent from the travaux préparatoires for Directive 2014/59 that, during the legislative process, the Parliament did propose, in essence, the exclusion in full of the liabilities of the promotional banks from the calculation of the ex ante contributions, the final version of that directive did not adopt that proposal.

75      In addition, contrary to what the applicant suggests, the fact that that proposal was not adopted cannot be regarded as a ‘misunderstanding’ which occurred during the legislative process. Aside from the fact that that claim is unsubstantiated, it cannot be accepted because the rejection of a proposal of amendments constitutes evidence of the interpretation a contrario of the provision in question, since the legislature expressly and deliberately decided to reject the amendment at issue (see, to that effect, judgment of 12 December 1996, RTI and Others, C‑320/94, C‑328/94, C‑329/94 and C‑337/94 to C‑339/94, EU:C:1996:486, paragraph 44).

76      It follows from the foregoing that neither Regulation No 806/2014 nor Directive 2014/59 lays down a general exemption of regional promotional banks from the obligation to pay ex ante contributions – despite the fact that they are backed by a public guarantee – and that that regulation and that directive do not therefore exclude all of the liabilities related to the activities of those banks from the calculation of their ex ante contribution.

77      Similarly, neither of those acts provides that the Commission may exclude certain institutions, such as regional promotional banks, from the scope ratione personae of the obligation to pay ex ante contributions.

78      The first part of the ninth plea must therefore be dismissed.

(2)    The second part, alleging infringement of the objective of relieving pressure on public budgets

79      The applicant considers that the refusal to exclude, from the calculation of the ex ante contribution of regional promotional banks, the liabilities related to their ancillary promotional activities, as follows from Delegated Regulation 2015/63, is contrary to the intention of the EU legislature and disregards the objective of relieving pressure on public budgets laid down by Directive 2014/59. There is thus a double pressure on public budgets, as the amount to be paid in the form of ex ante contributions is collected from regional promotional banks, such as the applicant, but also indirectly from the public authorities which own such banks and, therefore, from public budgets.

80      The SRB and the Commission dispute the applicant’s line of argument.

81      As a preliminary point, it must be borne in mind that, as follows from paragraphs 69 to 77 above, neither Regulation No 806/2014 nor Directive 2014/59 exempt, for the 2016 contribution period, regional promotional banks from the obligation to pay ex ante contributions, despite the fact that those banks are backed by a public guarantee.

82      That conclusion is not called into question by the objective of relieving pressure on public budgets referred to in Directive 2014/59, upon which the applicant relies in the context of this part.

83      It is true that, as follows from recital 109 of Directive 2014/59, that directive pursues the objective of requiring that the financing of the procedures for the resolution of the institutions concerned should come primarily from the shareholders and creditors of the institution under resolution and then from industry rather than from public budgets.

84      However, where a public authority is a shareholder, creditor or guarantor of such an institution, it is not incompatible with the objective set out in paragraph 83 above that it participates, in that capacity, in the financing of the SRF and that it thus contributes to building up the resilience of the system of EU resolution financing arrangements.

85      That objective cannot therefore call into question the finding made in paragraph 76 above.

86      In the light of the foregoing, the second part of the ninth plea must be dismissed.

(3)    The third part, alleging a failure to have regard to the principle of aligning the ex ante contributions with the risk profile and to the principle of equal treatment

87      In the first place, the applicant takes the view that, by not excluding from the calculation of the ex ante contribution of regional promotional banks the liabilities related to their ancillary promotional activities, Article 5(1)(f) of Delegated Regulation 2015/63 infringes Article 103(2) and (7) of Directive 2014/59, which requires that the amount of the ex ante contribution is aligned with the institutions’ risk profile.

88      The applicant considers that, given the inherent logic of the resolution financing arrangements enshrined in recital 103 of Directive 2014/59, the probability that an institution enters into resolution could, in a specific situation, be of paramount importance as compared with the other parameters which enable the ex ante contributions to be aligned with the risk profile, as listed in Article 103(7) of that directive. Thus, Delegated Regulation 2015/63, which is based, in so far as it lays down the method for adjustment of the ex ante contributions to the institutions’ risk profile, on Article 103(7) of the directive, is lawful only in so far as it integrates sufficiently, into the rules governing the calculation of ex ante contributions, the probability that the institutions concerned enter into resolution.

89      From the perspective of that probability, there is no difference between the liabilities related to promotional activities and those related to ancillary promotional activities. First, the Land ensures, in its capacity as the applicant’s guarantor, the complete coverage of those two categories of liabilities. Second, on account of the guarantee from the Land, the applicant’s failure is virtually precluded, which means that it has no need to rely on resolution tools.

90      As a preliminary point, it must be observed that, in the context of a delegated power under Article 290 TFEU, the Commission enjoys, in the exercise of the powers conferred on it, broad discretion where it is called on, inter alia, to undertake complex assessments and evaluations (see, to that effect, judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 53 and the case-law cited).

91      That is the case in connection with the determination of the criteria for adjustment of the ex ante contributions to the risk profile pursuant to Article 103(7) of Directive 2014/59.

92      In that regard, it must be borne in mind that the specific nature of those contributions consists, as is apparent from recitals 105 to 107 of Directive 2014/59 and from recital 41 of Regulation No 806/2014, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113).

93      In that context, and as is clear from recital 114 of Directive 2014/59, the EU legislature tasked the Commission with specifying, by delegated act, the manner in which the institutions’ contributions to resolution financing arrangements are to be adjusted in proportion to their risk profile.

94      Similarly, recital 107 of that directive states that, in order to ensure a fair calculation of the ex ante contributions to national financing arrangements and provide incentives to operate under a less risky model, those contributions must take account of the credit, liquidity and market risk incurred by the institutions.

95      It follows from the foregoing that the Commission had to draw up rules for adjustment of the ex ante contributions in proportion to the risk profile of the institutions in pursuit of two linked objectives, namely, first, to ensure that account is taken of the different risks to which the activities of the banking or, more broadly, financial institutions give rise, and, second, to encourage those same institutions to operate under a less risky model.

96      In addition, as is clear from the documents related to the adoption of Delegated Regulation 2015/63, in particular the documents entitled ‘JRC technical work supporting Commission second level legislation on risk based contributions to the (single) resolution fund’ and ‘Commission Staff Working Document: estimates of the application of the proposed methodology for the calculation of contributions to resolution financing arrangements’, the drawing up of such rules entailed complex assessments and evaluations on the part of the Commission, since it had to examine the different factors in the light of which various types of risk were perceived in the banking and financial sectors.

97      In the light of the foregoing, the Commission had broad discretion for the purpose of adopting, pursuant to Article 103(7) of Directive 2014/59, the rules clarifying the concept of adjustment of the ex ante contributions in proportion to the risk profile.

98      In those circumstances, as regards the method of adjusting the basic annual contributions pursuant to Article 103(7) of Directive 2014/59, review by the Courts of the European Union must be limited to verifying whether the exercise of the discretion afforded to the Commission has been vitiated by a manifest error of assessment or a misuse of powers, or whether the Commission has manifestly exceeded the limits of that discretion (see, to that effect, judgment of 21 July 2011, Etimine, C‑15/10, EU:C:2011:504, paragraph 60).

99      Accordingly, it is for the applicant to show that Article 5(1)(f) of Delegated Regulation 2015/63 is vitiated by such defects because it does not exclude the liabilities related to the ancillary promotional activities of regional promotional banks from the calculation of the ex ante contribution.

100    In that regard, it must be recalled first of all that, for the 2016 contribution period, neither Regulation No 806/2014 nor Directive 2014/59 provided for the general exclusion of regional promotional banks from the obligation to pay ex ante contributions, despite the fact that those banks are backed by a public guarantee and regardless of the probability of their resolution (see paragraphs 69 to 77 above).

101    Similarly, neither Directive 2014/59 nor Regulation No 806/2014 requires the Commission to exclude certain liabilities of such institutions from the calculation of the ex ante contributions.

102    Thus, in accordance with Article 70(1) of Regulation No 806/2014 and Article 103(2) of Directive 2014/59, all of the liabilities of those institutions, excluding own funds and covered deposits, are to be taken into account, in principle, for the purpose of calculating those contributions, subject to the adjustment of the contributions in proportion to the institutions’ risk profile.

103    Such an approach is consistent with the insurance-based logic of the system of ex ante contributions, in which the financial sector as a whole must provide adequate financial resources for the SRM to be able to fulfil its functions (judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113). According to that logic, all of the institutions, including those with a lower probability of entering into resolution, benefit from their ex ante contributions through the stability of the financial system as ensured by the SRF.

104    In those circumstances, the applicant cannot claim that the Commission was required to exclude certain liabilities of regional promotional banks, such as the liabilities related to ancillary promotional activities, from the calculation of their ex ante contribution solely because the probability of those banks entering into resolution was lower.

105    This is a fortiori the case as the applicant has not disputed that it could not be ruled out, in legal terms, that a regional promotional bank may enter into resolution, despite the fact that it is backed by public guarantees, and therefore may have recourse to the SRF.

106    Furthermore, in accordance with Article 70(2) of Regulation No 806/2014, ex ante contributions are not calculated only on the basis of the liabilities of the institutions concerned; rather, those contributions are subsequently adjusted in proportion to their risk profile. Thus, pursuant to Article 103(7) of Directive 2014/59, the Commission is empowered to adopt, by a delegated act, the rules governing that adjustment of ex ante contributions in proportion to the risk profile of those institutions.

107    In that regard, Article 103(7) of Directive 2014/59 provides for eight factors which the Commission must take into account for the purpose of such an adjustment. Although ‘the probability that the institution enters into resolution’ and ‘the risk exposure of the institution’ number amongst those factors, and therefore the Commission is required to take them into account when adopting a delegated act such as Delegated Regulation 2015/63, those factors are just two of the eight which the Commission has to take into account when drawing up such an act.

108    In addition, nothing in Article 103(7) of Directive 2014/59 states that the Commission is required to give paramount importance to one or more of those factors, such as the probability that the institution enters into resolution.

109    That conclusion is borne out by the context of Article 103(7) of Directive 2014/59.

110    First, it follows from recital 105 of that directive that ex ante contributions are to be collected from the industry prior to and independently of any operation of resolution. Second, resolution instruments can apply only to entities which are failing or likely to fail and only when necessary to achieve the objective of financial stability in the public interest. The legislation does not therefore establish an automatic link between the payment of the ex ante contribution of the institution concerned and that institution’s resolution, since it is only the preservation of the public interest, and not the individual interest of an institution, which is the decisive factor for the use of the SRF (judgment of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 70). It thus follows that the probability that an institution enters into resolution is not the only factor which must be taken into account when calculating its ex ante contribution.

111    This is a fortiori the case since the exclusion of the liabilities related to promotional activities from the calculation of the ex ante contributions, as provided for in Article 5(1)(f) of Delegated Regulation 2015/63, is not justified by the fact that the probability of the promotional banks holding those liabilities entering into resolution is low. As follows from recital 13 of that delegated regulation, those liabilities are excluded based on the fact that promotional loans pursue a public policy objective, are granted on a non-competitive, not-for-profit basis and are directly or indirectly partially guaranteed by the central or regional government or the local authority of a Member State. Thus, their exclusion is based on characteristics specific to a certain category of activities, rather than on the overall risk profile of the promotional banks carrying on those activities, it being recalled that such banks do not necessarily have the same risk profile simply because they carry out promotional activities amongst other activities.

112    In the light of the foregoing, the applicant has failed to demonstrate that Article 5(1)(f) of Delegated Regulation 2015/63 was vitiated by a manifest error or a misuse of powers or that it had manifestly exceeded the limits of the Commission’s discretion because it did not exclude the liabilities related to the regional promotional banks’ ancillary promotional activities from the calculation of their ex ante contribution.

113    In the second place, the applicant claims that Article 5(1)(f) of Delegated Regulation 2015/63 infringes the principle of equal treatment, even though Article 103 of Directive 2014/59 requires that banks with the same risk profile are treated equally.

114    First, Article 5(1)(f) of Delegated Regulation 2015/63 introduces an unjustified difference in treatment between liabilities related to ancillary promotional activities and liabilities related to promotional activities. In that regard, it follows from recital 13 of that delegated regulation that the reason for the preferential rules for the liabilities of promotional banks affected by the refinancing of certain loans is that those loans are guaranteed, directly or indirectly, by the central or regional government or by the local authority in question. In addition, the guarantee of continued operations enjoyed by the applicant – and therefore the ‘extremely low’ probability of its resolution – is by no means dependent on whether its liabilities correspond to claims related to its promotional activity or to its ancillary promotional activities. Nor is the difference in treatment justified from the point of view of the nature of those activities, because promotional activities are economically inseparable from ancillary promotional activities.

115    Second, Article 5(1)(f) of Delegated Regulation 2015/63, read in conjunction with Article 5(1)(b) thereof, gives rise to an unjustified difference in treatment between liabilities related to ancillary promotional activities and liabilities arising from obligations to counterparties with whom the institution has created an Institutional Protection Scheme (‘IPS’), as the latter liabilities are excluded from the calculation of ex ante contributions pursuant to Article 5(1)(b) of the delegated regulation. In connection with the means used for its ancillary promotional activities, the applicant benefits from a protective mechanism separate from the SRF, that is to say, the guarantee from the Land, which is comparable to the guarantee afforded by an IPS.

116    Third, regional promotional banks are treated differently from national promotional banks, which are not deemed to be credit institutions within the meaning of Regulation No 575/2013 and are therefore exempt from the obligation to pay ex ante contributions, even though, just like national promotional banks, regional promotional banks perform specific tasks connected with financing in the general interest and have a guarantee of continued operations.

117    In that regard, it must be recalled that the principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 95).

118    Since it is the applicant who is relying on a breach of the principle of equal treatment, it falls to it to identify precisely which comparable situations it considers have been treated differently or which different situations it considers have been treated identically (judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 311).

119    According to settled case-law, the comparable nature of different situations is assessed in the light of all the elements that characterise them. Those elements must, in particular, be determined and assessed in the light of the subject matter and purpose of the act making the distinction in question. In addition, the principles and objectives of the field to which the act relates must also be taken into consideration (see judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, EU:C:2021:89, paragraph 99 and the case-law cited).

120    With regard to the subject matter and purpose of Directive 2014/59, of Regulation No 806/2014 and of Delegated Regulation 2015/63, it must be recalled that those acts fall within the scope of the SRM, the establishment of which is intended, in accordance with recital 12 of Regulation No 806/2014, to ensure a neutral approach in dealing with failing institutions, to increase the stability of the institutions of the participating Member States and to prevent the spill-over of crises into Member States which do not participate in that mechanism, with a view to facilitating the functioning of the internal market as a whole.

121    In order to ensure the financing of the SRM’s activities, Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63 introduced the ex ante contributions, the specific nature of which consists, as is apparent from recitals 105 to 107 of that directive and from recital 41 of Regulation No 806/2014, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the SRM to be able to fulfil its functions, and in encouraging the institutions to adopt less risky methods of operation (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 113).

122    In that context, the exclusion provided for in Article 5(1)(f) of Delegated Regulation 2015/63 is justified, as is apparent from recital 13 of that delegated regulation, by the fact that promotional loans pursue a public policy objective, are granted on a non-competitive, not-for-profit basis and are directly or indirectly partially guaranteed by the central or regional government or by the local authority of a Member State.

123    The first complaint must be understood as meaning that the applicant submits, in essence, that ancillary promotional activities are comparable to promotional activities, and therefore the liabilities of a regional promotional bank which carries on the two categories of activities should have been excluded from the calculation of its ex ante contribution not just in the amount corresponding to the promotional activities, but in the amount corresponding to both categories of activities.

124    In that regard, it follows first and foremost from paragraph 60 above that ancillary promotional activities are carried out on the open capital market on a for-profit basis, that they may be carried on by institutions other than regional promotional banks and that they are conducted in competition with other institutions. By contrast, promotional activities are carried out on the basis of a legal obligation to assist the central or regional government of a Member State in the performance of its public interest duties.

125    In addition, in view of the findings made in paragraphs 62 and 124 above and contrary to what the applicant suggests, the fact that those two categories of activities are complementary from an economic perspective does not mean that they are comparable.

126    Lastly, the fact relied on by the applicant that the guarantee from the Land which it enjoys covers, in its specific case, all of its activities, whether they are promotional activities or ancillary promotional activities, is irrelevant when assessing whether those two categories of activities are comparable in the light of the aim pursued by Article 5(1)(f) of Delegated Regulation 2015/63. First, as is clear from paragraph 122 above, the aim pursued by that provision was not to exclude from the calculation of the ex ante contributions all of the liabilities of all of the regional promotional banks which enjoy guarantees such as those enjoyed by the applicant. Second, it is not established that the public guarantees enjoyed, as a general rule, by the promotional activities of regional promotional banks extend, in the case of all of those banks, also to their ancillary promotional activities. In that regard, the applicant has not, inter alia, contested the Commission’s argument that there were situations in which the ancillary promotional activities of certain regional promotional banks were not covered by any State – or equivalent – guarantee.

127    In those circumstances, ancillary promotional activities cannot be regarded as being comparable to promotional activities. Therefore, it is not established that they have to be treated in the same way as regards the exclusion of the liabilities related to such activities for the purpose of calculating ex ante contributions.

128    As for the second complaint, the applicant is wrong to claim that, in the light of the specific aim pursued by Article 5(1)(b) of Delegated Regulation 2015/63, liabilities related to ancillary promotional activities are comparable to liabilities related to obligations towards counterparties with whom the institution concerned created an IPS. In accordance with recital 8 of that delegated regulation, the exclusion of the liabilities related to IPS stems from the intention of preventing certain liabilities from being counted twice when determining the ex ante contribution of institutions which are members of an IPS or permanently affiliated to a central body. The applicant has not, however, argued that the inclusion of the liabilities related to ancillary promotional activities in the calculation of its ex ante contribution amounted to such liabilities being counted twice.

129    As for the third complaint, alleging that regional promotional banks are treated differently from national promotional banks as regards the obligation to pay ex ante contributions, the following should be noted.

130    First of all, that difference in treatment stems from the provisions of the legislative acts referred to in paragraphs 70 to 73 above. As explained in those paragraphs, it is Article 2(5)(6) of Directive 2013/36, in the version thereof applicable before its amendment by Directive 2019/878, which excluded by name the KfW from the scope of Directive 2013/36 and, therefore, from the general scheme of payment of ex ante contributions. The applicant has not contested the validity of that provision or of other provisions mentioned in paragraphs 70 to 73 above.

131    By contrast, Article 5(1)(f) of Delegated Regulation 2015/63, the unlawfulness of which is put forward by the present plea, applies to all promotional banks, within the meaning of Article 3(27) of Delegated Regulation 2015/63, falling within the scope ratione personae of the general scheme of payment of ex ante contributions. Thus, that provision does not establish any difference in treatment between those banks depending on whether they are created by a central government or a regional government of a Member State.

132    Furthermore, as has been found in paragraph 77 above, neither Article 103(7) of Directive 2014/59 nor any other provision of that directive or of Regulation No 806/2014 empowers the Commission to exempt entirely, in a delegated act, certain institutions, such as regional or national promotional banks, from the obligation to pay ex ante contributions.

133    In those circumstances, the legality of Article 5(1)(f) of Delegated Regulation 2015/63 cannot be affected solely because the EU legislature had decided to exempt, individually, the KfW, referred to by name in Article 2(5)(6) of Directive 2013/36, in the version thereof applicable before its amendment by Directive 2019/878, from the general scheme of payment of ex ante contributions.

134    In the third place, the applicant considers, with regard to Implementing Regulation 2015/81, that the method of calculation provided for in that regulation and applied in the contested decision is inconsistent with the principle of proportionality and gives rise to a distortion between the banking sector structures of the Member States, because that method entails cross-subsidies for commercial banks via the promotional banking sector. Thus, that method creates distortions between the banking sector structures of the Member States, contrary to point (b) of the first subparagraph of Article 70(2) of Regulation No 806/2014.

135    In that regard, it must be recalled that the principle of proportionality, which is one of the general principles of EU law, requires that acts of the EU institutions are appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not exceed the limits of what is necessary in order to achieve those objectives; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 165, and of 20 January 2021, ABLV Bank v SRB, T‑758/18, EU:T:2021:28, paragraph 142; see also, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 51).

136    However, the applicant has not submitted any evidence to show that the inclusion of the liabilities related to ancillary promotional activities in the calculation of the ex ante contributions is inappropriate to the objectives which the EU legislature and the Commission seek to pursue, as set out in paragraphs 120 to 122 above.

137    Similarly, the applicant has not put forward any grounds to show that the inclusion of those liabilities in the calculation of the ex ante contributions went beyond what was necessary to achieve the objectives set out in paragraphs 120 to 122 above or gave rise to disadvantages disproportionate to those objectives.

138    As for the only specific argument relied on by the applicant in the context of this complaint, namely the fact that the inclusion of those liabilities in the calculation of the ex ante contributions gives rise, in its view, to ‘cross-subsidies’ for commercial banks via the promotional banking sector, the applicant has not explained to the requisite legal standard why their inclusion did not satisfy the criteria set out in paragraph 135 above. In addition, and in any event, as has been stated in paragraph 124 above, ancillary promotional activities are conducted on the open capital market on a for-profit basis, and therefore any exclusion of the liabilities related to those activities from the calculation of the ex ante contributions would risk leading to the opposite outcome to that envisaged by the applicant, namely the creation of distortions between different institutions active on such a market.

139    It follows from all of those considerations that the third part of the ninth plea must be dismissed and, with it, that plea in its entirety.

2.      The tenth plea, based on pleas of illegality with regard to point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63 and to ‘Step 2’ in Annex I thereto

140    In the context of the tenth plea, the applicant submits that ‘the method of calculation defined in Delegated Regulation … 2015/63’ infringes Regulation No 806/2014, Directive 2014/59 and the principle of equal treatment.

141    In that regard, it must be pointed out that, while the applicant claims, in general terms, that it is the method of calculation provided for in Delegated Regulation 2015/63 which infringes, as such, the higher-ranking rules upon which it relies and while it explains that its arguments relating to point (b) of the first subparagraph of Article 6(5) of that delegated regulation, and to ‘Step 2’ in Annex I thereto, are developed only by way of example, its pleadings do not contain any considerations on aspects of the method of calculation other than those laid down in those provisions.

142    In those circumstances, the examination of this plea must be restricted to the alleged unlawfulness of point (b) of the first subparagraph of Article 6(5) of the delegated regulation and ‘Step 2’ in Annex I thereto.

143    In the first place, the applicant submits that the fact that the public guarantee enjoyed by it is not taken into account in the context of the risk pillar entitled ‘Additional risk indicators to be determined by the resolution authority’, provided for in Article 6(5) of Delegated Regulation 2015/63, infringes the principle of equal treatment as well as Regulation No 806/2014 and Directive 2014/59, since those acts require that the calculation of ex ante contributions is aligned with the institutions’ risk profile. Specifically, the risk sub-indicator ‘Membership in an [IPS]’, provided for in point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63, should have taken account of public guarantees, such as those enjoyed by the applicant, which are even potentially more significant to the assessment of the institutions’ risk profile than membership in an IPS.

144    In the second place, according to the applicant, the mechanism of assigning the institutions to bins, laid down in ‘Step 2’ in Annex I to Delegated Regulation 2015/63, infringes Directive 2014/59, the principle that ex ante contributions should be aligned with the risk profile and the principle of equal treatment. First, that assignment is made on the basis of a comparison of the risk profile of all of the institutions of the participating Member States, which may give rise to manifestly unfair results. Second, as the method laid down in ‘Step 2’ in Annex I to that delegated regulation consists in assigning, in so far as possible, the same number of institutions to each bin, this may result in institutions with similar raw risk indicators being treated differently and institutions with different indicators being treated in the same way.

145    Thus, by way of example, the applicant submits that it follows from Annex II to the contested decision that, in the context of the risk sub-indicator ‘risk weighted assets for market risk divided by total assets’ in relation to German institutions, bins 1 to 15 contain 646 institutions with a value of 0% and the institution with the highest risk profile for that indicator, with an approximate value of 1 121.1%, is assigned to bin 18, just one bin higher than the applicant’s bin, which, with its value of 0.05%, is assigned to bin 17. Accordingly, institutions with a completely different risk profile are placed in the same bin.

146    The SRB contends that the tenth plea must be dismissed as inadmissible in its entirety because it should have been raised when the action was brought in 2016. According to the SRB this is, in any event, unfounded.

147    In this regard, it must be recalled that, pursuant to Article 84(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 46).

148    In addition, under Article 86(1) of the Rules of Procedure, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may modify the application to take account of that new factor.

149    Furthermore, Articles 84 and 86 of the Rules of Procedure must be interpreted strictly, since rules of procedure are mandatory (see, to that effect, judgments of 26 March 2009, SELEX Sistemi Integrati v Commission, C‑113/07 P, EU:C:2009:191, paragraph 48, and of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 54).

150    In the present case, the applicant raised the plea of illegality with regard to point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63, and to ‘Step 2’ in Annex I thereto, only in the statement of modification.

151    The application initiating proceedings does not contain any arguments which could be regarded as being linked, even implicitly, to the legality of the provisions mentioned in paragraph 150 above. It is true that the application does contain a line of argument relating to the institutions’ membership in an IPS, but it relates to the exclusion of certain liabilities from the calculation of the ex ante contributions in accordance with Article 5 of Delegated Regulation 2015/63, and not to the adjustment of those contributions in proportion to the institutions’ risk profile under Articles 6 to 9 of that same delegated regulation. Accordingly, there is nothing to support the conclusion that this plea of illegality amplifies a plea already relied on in the application within the meaning of the case-law referred to in paragraph 147 above.

152    In addition, the contested decision is based on legal provisions in force when the initial decisions were adopted; this is the case, in particular, in relation to point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63 and to ‘Step 2’ in Annex I thereto. In that regard, there is nothing to indicate that, at the application stage, the applicant did not have all the information upon which it relied in its statement of modification to contest the validity of those provisions.

153    On that point, it must be pointed out that the fact called into question by the applicant, namely the assignment of the institutions to the bins on the basis of the values of the raw risk indicator of all of the institutions in respect of which that indicator is calculated, is the direct result of ‘Step 2’ in Annex I to Delegated Regulation 2015/63.

154    The same is true of the calculation of the number of bins within a particular risk indicator and the number of institutions assigned to each bin, bearing in mind that, under point 3 of ‘Step 2’ in Annex I to Delegated Regulation 2015/63, the SRB is to assign, in principle, the same number of institutions to each bin, starting by assigning institutions with the lowest values of the raw indicator to the first bin.

155    The applicant calls into question ‘Step 2’ in Annex I to Delegated Regulation 2015/63 specifically in so far as it provides for the assignment of the same number of institutions to each bin.

156    In the light of the foregoing, this plea of illegality is not based on any matter of fact or of law which came to light in the course of the procedure within the meaning of Article 84 of the Rules of Procedure. Similarly, it is not based on a matter which the applicant could legitimately take into account, for the first time, in the context of the modification of its application pursuant to Article 86(1) of the Rules of Procedure.

157    This plea of illegality must therefore be dismissed as inadmissible because it was raised out of time.

B.      The pleas concerning the lawfulness of the contested decision

1.      The second and third pleas, alleging infringement by the contested decision of Article 41 of the Charter and of the duty to state reasons due to the lack of legal basis for the replacement of the initial decisions with retroactive effect

158    The applicant submits, in the context of its second plea, that the contested decision, in so far as it replaces the initial decisions with retroactive effect, infringes Article 41 of the Charter, read in conjunction with Article 4 of the European Code of Good Administrative Behaviour, the principle of the rule of law and the principle of good administration, because there was no legal basis to adopt the contested decision with retroactive effect. In that regard, neither Article 70(1) of Regulation No 806/2014 nor Article 17(4) of Delegated Regulation 2015/63 constitutes such a legal basis.

159    In any case, there is no objective justification for the replacement of the initial decisions with retroactive effect. Specifically, there is no proven risk that, without such an effect, the objective of achieving the final target level would be undermined. In that regard, any shortfall in the SRB’s financing can be offset by higher ex ante contributions over the following years or by extending the initial stage pursuant to Article 69(4) of Regulation No 806/2014. Furthermore, the non-retroactivity of the contested decision does not give the applicant an unfair competitive advantage as compared with the other institutions, given that, as a promotional bank, it is not in competition with those other institutions. Nor did it benefit from an unfair advantage because its ex ante contribution for the 2016 contribution period is payable later than that of the other institutions, because it had in any event already paid that contribution in 2016.

160    Moreover, by its third plea, the applicant claims that the contested decision infringes the duty to state reasons laid down in the second paragraph of Article 296 TFEU and in Article 41(2)(c) of the Charter, because it does not state the legal basis upon which the SRB relied to adopt the contested decision with retroactive effect.

161    The SRB disputes the applicant’s line of argument.

162    The contested decision was adopted on 27 April 2022 and, in accordance with Article 4 of its operative part, it took effect on 15 April 2016, that is to say, when the first of the initial decisions took effect.

163    In recitals 177 to 184 of the contested decision, the SRB set out the reasons why it had fixed the temporal effects of that decision as described in paragraph 162 above. It explained, inter alia, that it had done so in order to retain the legal title by which the applicant’s ex ante contribution for 2016 had been collected in 2016 and to preserve the validity of the applicant’s payment of that contribution.

164    According to case-law, the principle of legal certainty precludes an EU measure from taking effect from a point in time before its adoption, save where, exceptionally, the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected (see, to that effect, judgments of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 45, and of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 102 and the case-law cited).

165    It follows from that case-law that, where the conditions set out therein are satisfied, the power of the EU institutions, bodies, offices and agencies to adopt a measure with retroactive effect stems from the general principles of EU law, without it being subject to the existence of an explicit legal basis in the legislation concerned.

166    In those circumstances, contrary to what the applicant claims by its third plea, the fact that the contested decision does not refer to an explicit provision of the legislation concerned conferring such a power on the SRB cannot constitute an infringement of the duty to state reasons.

167    Furthermore, without it being necessary to examine whether the scope of the contested decision is genuinely retroactive, as the applicant claims by its second plea, it must be observed that the conditions set out in paragraph 164 above are, in any event, satisfied in the present case.

168    First, the applicant does not allege that the retroactivity of the contested decision infringes the principle of the protection of legitimate expectations. Moreover, there is nothing to show that the applicant’s legitimate expectations or those of third parties were not duly respected in the circumstances of this case.

169    Second, with regard to whether the objectives to be achieved by the contested decision required that that decision take effect on a date prior to the date of its adoption, account must be taken of the context in which that decision was taken.

170    As is apparent from recitals 19, 20 and 183 of the contested decision, that decision was adopted in order to remedy the inadequate statement of reasons for the initial decisions, which the SRB found to exist further to the judgments of 28 November 2019, Hypo Vorarlberg Bank v SRB (T‑377/16, T‑645/16 and T‑809/16, EU:T:2019:823), and of 28 November 2019, Portigon v SRB (T‑365/16, EU:T:2019:824), without that decision or those judgments having altered the scope of the applicant’s obligation to pay an ex ante contribution for the 2016 contribution period, as it had been ordered by the initial decisions and as it had existed in respect of that contribution period.

171    The calculation of the applicant’s ex ante contribution for that contribution period and the amount of that contribution were the same both in the second of the initial decisions and in the contested decision. In that regard, the SRB observed, inter alia, in recital 22 of the contested decision, that that decision was ‘based on the data collected, the assumptions made, the preparatory steps taken, and the methodology applied in the context of the 2016 procedure leading to the adoption of the [initial decisions]’. Thus, the only new element introduced by the contested decision was a more expansive statement of reasons for the calculation of the applicant’s 2016 ex ante contribution.

172    In those specific circumstances, if the SRB had not adopted the contested decision by giving effect to it from the date on which the first of the initial decisions took effect, the contested decision could not have been effective over the period from 15 April 2016 to 27 April 2022, over the course of which the applicant would have been exempted from its obligation to pay an ex ante contribution for the 2016 contribution period, even though it was subject to that obligation pursuant to Article 2, Article 67(4) and Articles 69 and 70 of Regulation No 806/2014. Similarly, over that period, the SRF would have been deprived, in breach of those same provisions, of the funds from the applicant’s ex ante contributions, which would have undermined the implementation of Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63 (see, by analogy, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 176 and 177).

173    Therefore, the purpose of adopting the contested decision with effect from 15 April 2016 was to ensure synchronicity between the applicability of the contested decision and the time at which the applicant’s obligation to pay an ex ante contribution for 2016 had come into being and, thus, to avoid a result contrary to the applicable legislation. In order to achieve such a goal, that decision had to enter into force on a date prior to the date of its adoption.

174    In the light of the foregoing, the second and third pleas must be dismissed as unfounded.

2.      The fourth plea, based on the inadequacy of the statement of reasons as regards the calculation of the applicant’s ex  ante contribution

175    The applicant submits that the contested decision does not contain an adequate statement of reasons as regards the calculation of its ex ante contribution and that it thus infringes the second paragraph of Article 296 TFEU.

176    The fourth plea is divided, in essence, into three parts, based, first, on the lack of an individual statement of reasons for the contested decision; second, on the failure to communicate the individual data of the other institutions; and, third, on the inadequate statement of reasons in relation to the constitution of the bins.

(a)    Preliminary observations

177    The second paragraph of Article 296 TFEU provides that legal acts are to state the reasons on which they are based. Similarly, the right to good administration enshrined in Article 41 of the Charter provides that the EU institutions, bodies, offices and agencies are to give reasons for their decisions.

178    The statement of the reasons for a decision of an EU institution, body, office or agency is particularly important in so far as it allows persons concerned to decide in full knowledge of the circumstances whether it is worthwhile to bring an action against the decision and the court with jurisdiction to review it, and it is therefore a requirement for ensuring that the judicial review guaranteed by Article 47 of the Charter is effective (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 103 and the case-law cited).

179    Such a statement of reasons must be adapted to the nature of the legal act at issue and to the context in which it was adopted. In that regard, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question and, in particular, in the light of the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in a context which was known to that person and which enables him or her to understand the scope of the act concerning him or her (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 104 and the case-law cited).

180    In order to examine whether that statement of reasons is sufficient in the case of a decision determining ex ante contributions, it must be recalled, first, that it cannot be inferred from the case-law of the Court of Justice that the statement of reasons for any decision of an EU institution, body, office or agency imposing the payment of a sum of money on a private operator must necessarily include all the evidence enabling the addressee to verify the accuracy of the calculation of the amount of that sum of money (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 105 and the case-law cited).

181    Second, EU institutions, bodies, offices and agencies are, in principle, required, in accordance with the principle of the protection of business secrets, which is a general principle of EU law, to which concrete expression is given inter alia in Article 339 TFEU, not to disclose to the competitors of a private operator confidential information which that operator has provided (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 109 and the case-law cited).

182    Third, to take the view that the statement of reasons for the SRB’s decision determining the ex ante contributions must necessarily enable the institutions to verify the accuracy of the calculation of their ex ante contribution would necessarily mean precluding the EU legislature from establishing a method of calculating that contribution which incorporated data the confidentiality of which is protected by EU law and, therefore, reducing unduly the broad discretion which that legislature must have for that purpose by preventing it, inter alia, from opting for a method capable of ensuring the dynamic adjustment of the financing of the SRF according to developments in the financial sector, by taking into account, in particular, the relative financial situation of each institution authorised in the territory of a participating Member State (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 118).

183    Fourth, although it follows from the foregoing that the SRB’s duty to state reasons must be weighed, on the basis of the logic of the system of financing the SRF and of the method of calculation laid down by the EU legislature, against the SRB’s obligation to respect the confidentiality of business secrets of the financial institutions concerned, the fact remains that the obligation to respect business secrets cannot be given so wide an interpretation that the obligation to provide a statement of reasons is thereby deprived of its essence (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 120).

184    However, it cannot be held, when weighing the duty to state reasons against the principle of the protection of business secrets, that giving reasons for a decision requiring a private operator to pay a sum of money without providing it with all the information needed to verify the exact calculation of the amount of that sum of money necessarily undermines, in every case, the substance of the obligation to state reasons (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 121).

185    As far as concerns the SRB’s decision fixing the ex ante contributions, the duty to state reasons must be regarded as fulfilled where the persons concerned by that decision, while not being sent data which are business secrets, have the method of calculation used by the SRB and sufficient information to understand, in essence, how their individual situation was taken into account, for the purposes of calculating their ex ante contribution, relative to the situation of all the other financial institutions concerned (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 122).

186    In such a case, the persons concerned are in a position to verify whether their ex ante contribution was fixed arbitrarily, in disregard of the reality of their economic situation or through the use of data relating to the rest of the financial sector which are not plausible. Those persons can therefore understand the reasons for the decision calculating their ex ante contribution and assess whether it is worthwhile to bring an action against that decision, so that it would be excessive to require the SRB to disclose each of the figures on which the calculation of the contribution of each institution concerned is based (judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 123).

187    It follows from the foregoing that the SRB is not, inter alia, required to provide an institution with data enabling it to verify fully the accuracy of the value of the adjusting multiplier, since that verification would require data which are business secrets relating to the economic situation of each of the other institutions concerned (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 135).

188    However, it is for the SRB to publish or disclose to the institutions concerned, in collective and anonymised form, the information relating to those institutions which was used to calculate that contribution, in so far as that information may be communicated without compromising business secrets (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 166).

189    That information which must thus be made available to the institutions includes, in particular, the limit values of each bin and those of the relevant indicators, on the basis of which the institutions’ ex ante contribution was adjusted to their risk profile (see, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 167).

190    It is in the light of those considerations that the arguments put forward by the applicant in the context of the fourth plea must be examined.

(b)    The first part, concerning the lack of an individual statement of reasons in the contested decision

191    According to the applicant, the contested decision infringes the second paragraph of Article 296 TFEU because it does not contain an adequate, individual statement of reasons. In particular, recitals 24 to 164 of that decision make no mention of the applicant and the annexes to the decision do not contain a sufficiently specific examination of its individual characteristics.

192    More specifically, the contested decision, in particular recitals 53 to 57 thereof, do not contain an examination of the applicant’s specific position vis-à-vis the classification of its ancillary promotional activities in the light of Article 5(1)(f) of Delegated Regulation 2015/63. In addition, the summary provided in relation to that question in Annex III to the contested decision is based on a misunderstanding of the concept of ‘ancillary promotional activities’. Moreover, that summary simply finds that the applicant’s ancillary promotional activities do not enjoy preferential status and includes arguments wholly unrelated to such activities.

193    Lastly, the contested decision does not explain why the SRB departed from an earlier practice of the German resolution authority, which, for the 2015 contribution year, applied Article 5(1)(f) of Delegated Regulation 2015/63 to the applicant’s ancillary promotional activities.

194    The SRB disputes the applicant’s line of argument.

195    In the first place, it must be recalled that, as has already been mentioned in paragraphs 9 to 21 above, the contested decision consists of four separate parts. Thus, recitals 24 to 164 and 167 to 175 of the body of that decision and Annex II thereto set out considerations and calculation-related information applicable to all of the institutions. However, Annex I to the contested decision, entitled ‘Calculation Details (Risk Adjusted)’, and Annex III thereto, which contains an assessment of the applicant’s submissions made in the context of the consultation conducted by the SRB before the adoption of the contested decision, contain calculation-related information and reasoning specific to the individual contribution to be paid to the SRF by the applicant.

196    In those circumstances, the contested decision is sufficiently specific to the applicant’s individual situation.

197    In the second place, as regards the specific content of the contested decision, the applicant has identified – besides the assignment of the institutions to the bins which will be examined in the second part of this plea – only one single factor in respect of which it claims that the statement of reasons is inadequate, namely the non-application of Article 5(1)(f) of Delegated Regulation 2015/63 to its ancillary promotional activities.

198    However, in recital 55 of the contested decision, the SRB stated that it had refrained from applying Article 5(1)(f) of Delegated Regulation 2015/63 to liabilities which did not satisfy all the conditions to be excluded from the calculation of the ex ante contributions, where an interpretation allowing such exclusion would have been incompatible with the wording of that provision. The SRB also explained in that same recital that, given the exceptional nature of the provision, that provision was to be interpreted narrowly and was not to be applied extensively or by analogy, neither as to its ‘subjective’ scope, that is to say, as regards the institutions to which it was applicable, nor as to its ‘objective’ scope, that is to say, as regards the types of liabilities eligible for exclusion from the calculation of ex ante contributions.

199    Furthermore, in paragraphs 21 to 23 and 27 of Annex III to the contested decision, the SRB set out the reasons why it took the view that the applicant’s ancillary promotional activities did not fall within the scope of Article 5(1)(f) of Delegated Regulation 2015/63. It stated, inter alia, in paragraph 22 of that annex, that the applicant’s ancillary promotional activities and its promotional activities were separate and independent. In the same paragraph, it took the view that the promotional activities were non-market, non-competitive activities carried out under the mandate granted by the public authorities, whereas the ancillary promotional activities were conducted on market terms and were optional, competitive and profit-oriented. The SRB thus concluded, in paragraph 27 of Annex III to the contested decision, that, by their very nature, the applicant’s ancillary promotional activities could not be considered as being conducted on a non-competitive, not-for-profit basis, irrespective of the way in which the revenue arising from those activities was used.

200    Such information enabled the applicant to identify the reasons why the SRB had taken the view that the liabilities related to the applicant’s ancillary promotional activities were not excluded from the calculation of its ex ante contribution pursuant to Article 5(1)(f) of Delegated Regulation 2015/63.

201    In those circumstances, there is nothing to support the claim that the SRB simply refused to apply Article 5(1)(f) of Delegated Regulation 2015/63 to the applicant or that it used arguments wholly unrelated to the applicant’s ancillary promotional activities.

202    In the third place, the applicant’s argument regarding the SRB’s alleged misunderstanding of the concept of ‘ancillary promotional activities’ is based not on an infringement of the duty to state reasons, but rather challenges the substance of the reasons why the SRB did not apply Article 5(1)(f) of Delegated Regulation 2015/63 to the applicant’s activities. The same is true of the argument seeking to contest the SRB’s view that such activities are competitive and profit-oriented by their very nature. According to case-law, the obligation to provide a statement of reasons is a question distinct from that of the merits of the reasons for the contested decision (see, to that effect, judgment of 23 November 2006, Ter Lembeek v Commission, T‑217/02, EU:T:2006:361, paragraph 234).

203    In addition, if that line of argument were to be understood as meaning that the applicant contests the merits of those reasons, it would in fact overlap with the eighth plea, which will be examined in paragraphs 258 to 262 below.

204    In the fourth place, as regards the argument that the SRB departed from an earlier practice of the German resolution authority which consisted in applying, in 2015, Article 5(1)(f) of Delegated Regulation 2015/63 to the applicant’s ancillary promotional activities, it must be observed that the applicant contests simply the lack of a statement of reasons for the departure from the earlier practice, without pleading infringement of another rule of law.

205    In that regard, first, it is clear from paragraphs 198 to 200 above that the SRB provided an adequate statement of the reasons why it had considered that the applicant’s ancillary promotional activities were not covered by the exception laid down in Article 5(1)(f) of Delegated Regulation 2015/33. Second, in paragraph 23 of Annex III to the contested decision, the SRB explained that the appraisal carried out in a given contribution cycle cannot bind the resolution authority when carrying out the appraisal for a different cycle, especially if a different resolution authority is responsible for each of those contribution cycles. It added that it was not for it to comment on an assessment made by another resolution authority.

206    Such information enables the applicant to understand the reasons which led the SRB not to apply Article 5(1)(f) of Delegated 2015/63 to the applicant’s ancillary promotional activities for the 2016 contribution year, despite what the applicant considers to be a different earlier practice. Accordingly, that information satisfies the requirements of the duty to state reasons arising from the case-law cited in paragraph 179 above.

207    In the light of the foregoing, the first part of the fourth plea must be dismissed as unfounded.

(c)    The second part, concerning the failure to communicate the individual data of the other institutions

208    The applicant submits that the contested decision does not enable it to verify whether the calculation of the ex ante contributions complies with the applicable legislation. In addition, it is not possible on the basis of the calculation details contained in Annexes I and II to that decision to verify the applicant’s assignment to the bins or the determination of its ex ante contribution. Specifically, the decision should have contained the individual data of the other institutions, at the very least in anonymised form, as without those data the applicant is unable to verify its assignment to the bins.

209    The SRB disputes the applicant’s line of argument.

210    In recital 118 of the contested decision, the SRB noted that ‘institutions’ business secrets – namely, all information about the institutions’ business activity that, in case of disclosure to a competitor and/or the wider public, could significantly harm the institutions’ interests – [were] considered to be confidential information’. It added that, ‘in the context of the calculation of ex-ante contributions …, the individual information submitted by the institutions via their [reporting forms] …, which [were] then relied on for calculating their ex-ante contributions, [were] considered to be business secrets’.

211    In addition, in recitals 120, 122 and 123 of the contested decision, the SRB stated that it was prohibited from ‘disclosing the institutions’ individual data points, which [were] critical in the calculation process, in [that] decision’, whereas it was authorised to ‘disclose the institutions’ aggregated and common data points, as that data [was] in collective form’. That being the case, the institutions had, according to the contested decision, ‘complete transparency as to the calculation of their [basic annual contribution] and individual risk-adjustment multipliers’ for the steps involved in calculating that contribution, as they were defined in Annex I to Delegated Regulation 2015/63, and which related to the ‘calculation of the raw indicators’ (Step 1), the ‘rescaling of the indicators’ (Step 3) and the ‘calculation of the composite indicator’ (Step 5). In addition, the institutions were able to obtain ‘common data points which the [SRB] used for all risk-adjusted institutions equally’ for the steps in the calculation relating to the ‘discretization of the indicators’ (Step 2), the ‘inclusion of the assigned sign’ (Step 4) and the ‘calculation of the annual contributions’ (Step 6).

212    In that regard, it must be recalled, first of all, that the very principle of the method of calculating ex ante contributions, as set out in Directive 2014/59 and Regulation No 806/2014, means that the SRB must use data which are business secrets and cannot be included in the statement of reasons for the decision setting the ex ante contributions (judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 114).

213    Next, it follows from the case-law cited in paragraphs 177 to 189 above, that, contrary to what the applicant claims, the SRB was not required to allow it to verify fully the determination of the number of bins or the assignment of the institutions to those bins by providing it with the individual data of the other institutions, since such an approach would have entailed communicating to it data which are business secrets.

214    Since the applicant has not submitted any evidence seeking to call into question the SRB’s view that the raw indicator values are business secrets, it cannot criticise the SRB for having failed to disclose them to the institutions.

215    Finally, if the applicant’s comment regarding the anonymization of the raw indicator values were to be understood as referring to a situation in which the name of the institution would be replaced by a pseudonym, such an approach could not guarantee that the institutions could not be identified from the data thus communicated. Indeed, it cannot be ruled out that some institutions, even if given pseudonyms, might nevertheless be identified on account of the individual data which have already been made public, in particular in the case of large institutions or of Member States with only a few institutions.

216    In the light of the foregoing, the second part of the fourth plea must be dismissed as unfounded.

(d)    The third part, concerning the inadequacy of the statement of reasons as regards the constitution of the bins

217    The applicant submits that the contested decision does not explain why the number of institutions in each bin and the total number of bins vary from one risk indicator to another.

218    The SRB disputes the applicant’s line of argument.

219    With regard to the number of bins within each risk indicator, the SRB calculates that number in accordance with the rules laid down in ‘Step 2’ in Annex I to Delegated Regulation 2015/63, to which the SRB referred in recitals 85, 117 and 138 of the contested decision, and, more specifically, using the formula provided for in point 2 of ‘Step 2’ in Annex I to that same delegated regulation. Applying that formula, the ‘number of bins’ () for each raw indicator – except for the indicator ‘extent of previous extraordinary public financial support’ – is calculated, inter alia, on the basis of the ‘number of institutions, contributing to the resolution financing arrangement, for which the indicator is calculated’ (N) and the raw indicator values in question (). Thus, the number of bins can vary according to the input data entered into that formula.

220    In those circumstances, the applicant is wrong to claim that the contested decision did not provide explanations concerning the variations in the total number of bins from one risk indicator to another.

221    Similarly, as regards the unequal number of institutions assigned to each bin, the SRB adequately explained, in recital 140 of the contested decision, the reasons for such allocation, stating that its purpose was to avoid institutions with the same value for a raw risk indicator being classified in different bins, and therefore institutions with the same value for such an indicator were assigned to the same bin, which could have led to a different number of institutions being placed in each bin.

222    In the light of the foregoing, the third part of the fourth plea must be dismissed as unfounded and, with it, the fourth plea in its entirety.

3.      The sixth plea, alleging infringement of the ‘general procedural requirements’ arising from Article 41 of the Charter, Article 298 TFEU, general legal principles and the SRB’s rules of procedure

223    The applicant submits that the contested decision infringes ‘general procedural requirements’ arising from Article 41 of the Charter, Article 298 TFEU, general legal principles and the SRB’s rules of procedure. In particular, it has not been shown that that decision complied with the ‘minimum duration of written procedures’ and the applicant is unable to verify that fact. Nor can it verify whether other procedural rules were observed. The Court must therefore undertake a verification of its own motion.

224    The SRB argues that this plea is unsubstantiated and must be rejected as purely speculative.

225    In that regard, it must be recalled that, under Article 76(d) of the Rules of Procedure, an application must state the subject matter of the proceedings and a summary of the pleas in law, and that statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any other supporting information (judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraph 191).

226    In order to guarantee legal certainty and the sound administration of justice, it is necessary, if an action is to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself (see judgment of 25 January 2018, BSCA v Commission, T‑818/14, EU:T:2018:33, paragraph 95 and the case-law cited). Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 131 and the case-law cited).

227    In particular, mere reliance on the principle of EU law which is alleged to have been breached, without stating the legal and factual particulars on which that allegation is based, does not satisfy the requirements of Article 76(d) of the Rules of Procedure (see judgment of 7 November 2019, ADDE v Parliament, T‑48/17, EU:T:2019:780, paragraph 22 and the case-law cited).

228    In the present case, first, it must be observed that the applicant merely claims that the contested decision infringed ‘general procedural requirements arising from Article 41 of the Charter, Article 298 [TFEU], general legal principles and the SRB’s rules of procedure’ because it was not proven that that decision complied with the ‘minimum duration of written procedures’ and other procedural rules, without however developing any relevant arguments in that respect.

229    Second, as regards the applicant’s request for the Court to undertake an ex officio review concerning the infringement of those principles, it follows from the applicant’s response of 31 January 2023 to the questions put by the Court that, by its sixth plea, the applicant asks the Court to order ‘the production of documents allowing a review of the lawfulness of the procedure’ which led to the adoption of the contested decision. However, as is apparent from paragraph 228 above, the applicant does not specify the precise reasons justifying the production of such documents, and therefore that request does not satisfy, in any case, the requirements laid down in Article 88(2) of the Rules of Procedure.

230    In those circumstances, the sixth plea must be dismissed as inadmissible.

4.      The first and seventh pleas, alleging infringement of Article 41(1) and (2)(a) of the Charter because of a failure to comply with the right to be heard

231    In the context of the first and seventh pleas, which must be examined together, the applicant submits that the consultation procedure conducted by the SRB with a view to adopting the contested decision in order to replace the initial decisions was contrary to the requirements of the right to be heard, which is enshrined in Article 41(1) and (2)(a) of the Charter.

232    This plea is divided into two parts, alleging, first, that the period for the submission of observations as part of that consultation procedure was insufficient and, second, that the final version of the contested decision was drawn up prior to that procedure.

(a)    The first part, concerning the insufficient period for the submission of observations as part of the consultation procedure

233    The applicant claims that, given ‘the complexity of the procedure’ and the volume of documents communicated by the SRB, the period of ten working days granted to it by the SRB for the submission of observations prior to the adoption of the contested decision was not long enough for it to examine the documents communicated in full. The SRB sent the applicant not only a 39-page draft of the contested decision, but also ‘various annexes’ containing calculation details and incomprehensible figures.

234    The SRB disputes the applicant’s line of argument.

235    The right to be heard, enshrined in Article 41(2)(a) of the Charter, guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (see judgment of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraph 87 and the case-law cited).

236    Here, before the adoption of the contested decision, the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Agency for Financial Services Supervision, Germany; ‘BaFin’), sent the applicant a communication from the SRB of 2 March 2022 in which the SRB had made clear its intention to withdraw and replace the initial decisions. That communication contained a draft of the SRB’s new decision and of Annexes I and II thereto for the 2016 contribution period. In the communication, the SRB invited the applicant to submit observations on the documents thus communicated by 23 March 2022 at the latest.

237    The applicant submitted its observations by a letter of 23 March 2022 addressed to the BaFin.

238    It is established that the applicant was granted a period of ten working days to submit its observations.

239    On the issue of whether that period was sufficient, first, the context of the contested decision must be recalled. As noted in paragraphs 170 and 171 above, the contested decision replaced the initial decisions in order to remedy the inadequacy of the statement of reasons for those decisions which had been found to exist by the SRB, it being recalled that the calculation of the applicant’s ex ante contribution for the 2016 contribution period and the amount of that contribution were the same in the second of the initial decisions and in the contested decision. Thus, many elements forming the basis of the contested decision, such as the non-exclusion of the liabilities related to the applicant’s ancillary promotional activities from the calculation of the liabilities used to determine its ex ante contribution, were known to the applicant from the adoption of the initial decisions. This is, moreover, confirmed by the pleas in law raised by the applicant at the application stage.

240    Second, although the applicant claims that the consultation procedure conducted by the SRB was complex, it does not explain the nature of that complexity. In particular, it does not point to specific uncertainties relating to the content of the documents provided as part of that procedure or to practical difficulties which prevented it from submitting its observations within the prescribed period.

241    Third, the applicant cannot rely, in order to demonstrate that the consultation period was not long enough, on the ‘volume of the documents communicated by the SRB’. As the applicant made clear at the hearing, its reference to the ‘various annexes’ provided during the consultation procedure must be understood as referring to Annexes I and II to the draft contested decision. However, Annex I consisted of three pages, one page of which simply listed data communicated by the applicant. Furthermore, although Annex II consisted of 105 pages, it contained statistical data relating to the calculation of the ex ante contributions for each participating Member State in summary and aggregated form. Thus, only a limited part of that annex was directly relevant to the applicant. In those circumstances, there is nothing to show that the volume of the documents communicated by the SRB prevented the applicant from making known its views effectively on the draft contested decision within the prescribed period.

242    Fourth, it must be added that the applicant’s arguments contained in paragraphs 18 to 22 of its statement of modification, by which it seeks to contest individually each of the arguments relied on by the SRB to justify that the period granted to the institutions was sufficient, do not provide any evidence capable of supporting its view that the complexity of the consultation procedure and the volume of the documents communicated were such that the period of ten days granted to it was not long enough.

243    In the light of the foregoing, there are no grounds for concluding that that period did not enable the applicant to make known its views effectively on the draft contested decision.

244    This part must therefore be dismissed as unfounded.

(b)    The second part, concerning the fact that the final version of the contested decision was drawn up prior to the consultation procedure

245    The applicant submits that the SRB regarded the consultation procedure as a mere formality, because it originally announced, prior to that procedure, its intention to adopt the contested decision in the first quarter of 2022, that is to say just six working days after the expiry of the period which had been granted to the applicant to submit its observations. Thus, the applicant could not have expected the SRB to give serious consideration to its observations. It is irrelevant in that regard that the SRB decided, subsequently, to allow more than six working days after the expiry of that deadline before adopting that decision.

246    Furthermore, it follows from the SRB’s finding in paragraph 9 of Annex III to the contested decision, according to which it had not expected that the assessment of submissions would be a lengthy process, that the SRB was not prepared to review the draft contested decision. Moreover, Annex III to the contested decision gives the impression that the applicant’s observations were addressed only in part and rejected on the basis of ‘partly inappropriate considerations’.

247    The SRB disputes the applicant’s line of argument.

248    In that regard, the facts to which the applicant refers, such as the timeline followed by the SRB to adopt the contested decision and its subsequent amendment, cannot establish that the SRB did not intend to give all due attention to any observations submitted by the applicant. The allegations based by the applicant on those facts are purely speculative.

249    Furthermore, as for the applicant’s claim that its observations were addressed only in part and rejected on the basis of ‘partly inappropriate’ considerations, the applicant has not identified any specific observation to which the SRB allegedly failed to respond.

250    Moreover, in so far as the applicant disagrees with the SRB’s assessment in the contested decision, such disagreement cannot constitute an infringement of the applicant’s right to be heard, rather it falls within the scope of the examination of the merits of such an assessment (see, to that effect, judgment of 25 March 2015, Slovenská pošta v Commission, T‑556/08, not published, EU:T:2015:189, paragraph 89).

251    Finally, the applicant cannot rely on paragraph 31 of the judgment of 10 July 2001, Ismeri Europa v Court of Auditors (C‑315/99 P, EU:C:2001:391), in which the Court of Justice found that an EU institution was naturally more willing to welcome observations before definitively determining its view of a matter than after publication thereof since acknowledgment after publication that criticisms were well founded would compel it to go back on its views by issuing a rectification. In the present case, the applicant was not invited to submit observations on a definitively determined position adopted by the SRB, the amendment of which would have required a rectification, but on a draft of the decision preceding the adoption of a final decision.

252    This part must therefore be dismissed as unfounded and, with it, the first and seventh pleas in their entirety.

5.      The fifth plea, alleging infringement by the contested decision of the right to effective judicial protection

253    The applicant submits that the flaws in the statement of reasons set out in the fourth plea make it significantly more difficult for it to exercise its right to effective judicial protection. It is virtually impossible for it to understand the reasons for the contested decision and, therefore, to draft the pleas in support of its action. The contested decision therefore infringes Article 47 of the Charter and the adversarial principle.

254    The SRB disputes the applicant’s line of argument.

255    In that regard, it follows from case-law that there is no need to examine independently a complaint alleging infringement of a right to effective judicial protection if that complaint is not supported by specific arguments, but merely refers to the arguments presented in the context of other claims (see, to that effect, judgments of 22 September 2015, First Islamic Investment Bank v Council, T‑161/13, EU:T:2015:667, paragraph 68, and of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraph 101).

256    Here, the applicant relies on the infringement of the right to effective judicial protection without however putting forward any specific supporting arguments beyond those which it raises in the context of its fourth plea.

257    Accordingly, the fifth plea must be dismissed for the same reasons as those set out in paragraphs 175 to 222 above in the context of the assessment of the fourth plea.

6.      The eighth plea, alleging the unlawfulness of the contested decision in the light of Article 3(28) and Article 5(1)(f) of Delegated Regulation 2015/63

258    The applicant claims that, by not excluding the liabilities related to its ancillary promotional activities from the calculation of its ex ante contribution, the SRB misinterpreted Delegated Regulation 2015/63, in particular Article 3(28) and Article 5(1)(f) thereof.

259    The SRB, supported by the Council and the Commission, dispute that line of argument. In addition, the SRB takes the view that the eighth plea is admissible only in so far as it was raised in the application, for the same reasons as those summarised in paragraph 32 above.

260    In paragraph 27 of Annex III to the contested decision, the SRB found that the applicant’s ancillary promotional activities, ‘for their own nature, [could] not be considered as being conducted on a non-competitive or non-profit basis, irrespective of the way in which the revenue they produce[d] [was] invested and, in any case, [the] amount [of those activities] [did] not match the amount of [the applicant’s] promotional loans’.

261    In that regard, without it being necessary to rule on the admissibility of the considerations submitted by the applicant in its statement of modification, it follows from paragraphs 44 to 63 above that the SRB was right to take the view, in the context of calculating the applicant’s ex ante contribution for the 2016 contribution period, that the applicant’s ancillary promotional activities did not fall within the scope of a ‘promotional loan’, as defined in Article 3(28) of Delegated Regulation 2015/63, and that its liabilities related to those activities were thus not to be excluded from the calculation of its ex ante contribution pursuant to Article 5(1)(f) of that delegated regulation.

262    The eighth plea must therefore be dismissed as unfounded.

7.      The eleventh plea, alleging infringement of general legal principles because the contested decision is not based on points of law in force on the date of its adoption

263    The applicant submits that the contested decision infringes the requirement arising from general legal principles and from case-law that an act adopted by an EU institution must be based on points of law in force on the date of its adoption. Thus, when adopting the contested decision in 2022, the SRB should have taken account of the fact that, since the adoption of Directive 2019/878, the applicant has ceased to be an institution covered by Regulation No 86/2014, and therefore it is no longer required to pay ex ante contributions. The replacement of the initial decisions pertaining to the 2016 contribution period by a new decision constitutes in actual fact simply the adoption of a new decision in 2022.

264    The SRB disputes the applicant’s line of argument.

265    In that regard, it follows from case-law that, in order to comply with the principles governing the temporal application of the law and because of the requirements relating to the principles of legal certainty and the protection of legitimate expectations, the substantive rules in force at the date of the facts in issue must be applied, even if those rules are no longer in force when an act is adopted by an EU institution, body, office or agency (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 40 and the case-law cited).

266    The provisions governing the payment of ex ante contributions are based on the same principles.

267    In the present case, the contested decision determines the ex ante contributions for the 2016 contribution period on the basis of the annual target level set for that period.

268    In addition, it is established that, during the 2016 contribution period, the applicant was an institution with the meaning of Article 2 and Article 3(1)(13) of Regulation No 806/2014, and therefore it was an institution that was obliged to pay an ex ante contribution in respect of that period, in accordance with Article 4 of Implementing Regulation 2015/81, read in conjunction with Article 2, Article 67(4) and Article 70(1) of Regulation No 806/2014.

269    In those circumstances, the applicant’s obligation to pay an ex ante contribution in respect of 2016 cannot be affected by the subsequent adoption of Directive 2019/878, which was published in the Official Journal of the European Union on 7 June 2019 and entered into force on the twentieth day following that of its publication, with a deadline for transposition which expired, in principle, no later than 28 December 2020. That directive does not provide for the exclusion ex tunc of the applicant from the scope ratione personae of the obligation to pay ex ante contributions. There was therefore no need for the SRB to take account of that fact in the contested decision for the purpose of determining those contributions.

270    In the light of the foregoing, the eleventh plea must be dismissed as unfounded.

8.      The statement of reasons for the determination of the annual target level

271    It must be recalled that an absence of or an inadequate statement of reasons is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34 and the case-law cited).

272    In the present case, the parties were asked, by means of a measure of organisation of procedure and in the course of the hearing, about any flaws in the statement of reasons vitiating the contested decision in relation to the determination of the annual target level.

273    It is apparent from their responses that the parties are in disagreement as to whether the contested decision contains an adequate statement of reasons in that regard: the applicant considers that that is not the case, whereas the SRB takes the opposing view.

274    In those circumstances, and even though the applicant does not criticise the reasons stated for the determination of the annual target level in its application or its statement of modification, the Court considers that it falls to it to examine of its own motion whether, in the contested decision, the reasons stated by the SRB for the determination of the annual target level meet the requisite legal standard.

275    As a preliminary point, it must be recalled that, in accordance with Article 69(1) of Regulation No 806/2014, by the end of the initial period, the available financial means in the SRF must reach the final target level, which corresponds to at least 1% of the amount of covered deposits of all of the institutions authorised in all of the participating Member States.

276    Under Article 69(2) of Regulation No 806/2014, during the initial period, the ex ante contributions must be spread out in time as evenly as possible until the final target level mentioned in paragraph 275 above is reached, but with due account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.

277    Article 70(2) of Regulation No 806/2014 states that, each year, the contributions due by all of the institutions authorised in the territories of all of the participating Member States are not to exceed 12.5% of the final target level.

278    In relation to the method of calculation of the ex ante contributions, Article 4(2) of Delegated Regulation 2015/63 provides that the SRB is to determine their amount on the basis of the annual target level, taking into account the final target level, and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, of all of the institutions authorised in the territories of all of the participating Member States.

279    Similarly, under Article 4 of Implementing Regulation 2015/81, the SRB is to calculate the ex ante contribution for each institution on the basis of the annual target level, which must be established having regard to the final target level and in accordance with the methodology set out in Delegated Regulation 2015/63.

280    In order to examine whether the SRB complied with its obligation to state reasons as regards the determination of the annual target level, it must be recalled, first of all, that, even though the author of a decision is not obliged, in the statement of reasons for that decision, to go into all the relevant facts and points of law, that reasoning must, however, set out at least the facts and the legal considerations having decisive importance in the context of the decision (see, to that effect, judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169 and the case-law cited).

281    Next, when the SRB adopts a decision setting the ex ante contributions, it must inform the institutions concerned of the method of calculation of those contributions (see judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB, C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 122).

282    The same must apply to the method of determining the annual target level, as that amount is of critical importance in the scheme of such a decision. As is clear from Article 4 of Implementing Regulation 2015/81, the method of calculation of the ex ante contributions consists in apportioning that amount between all of the institutions concerned, with the result that an increase or a reduction in the amount means a corresponding increase or reduction in the ex ante contribution of each of those institutions.

283    It follows from the foregoing that the institutions liable to the ex ante contributions must be able to understand, on reading the contested decision, at least the main stages of the method of calculating the annual target level for the contribution period concerned.

284    In the present case, as is clear from recital 80 of the contested decision, the SRB set the amount of the annual target level at EUR 7 007 654 704.

285    In recital 60 of the contested decision, the SRB pointed out that it had determined that target level taking into account, inter alia, the projected amount of the final target level, which had to be reached at the end of the initial period, as well as the financial means already available in the SRF.

286    The SRB set out the approach followed to determine the annual target level in recitals 62 to 79 of the contested decision.

287    In recital 62 of the contested decision, the SRB explained that setting the annual target level at one eighth of 1% of the amount of the covered deposits of the previous year would not be sufficient to reach the final target level if covered deposits were expected to grow in the future.

288    In recitals 63 to 66 of the contested decision, the SRB explained that, in order to take account of the expected evolution of covered deposits during the initial period, it had analysed – in the absence of reliable data on the evolution of the institutions’ covered deposits – the growth rates of household deposits and deposits of non-financial corporations, relying on data published by the European Central Bank (ECB). It noted that, based on that analysis, an annual growth rate for covered deposits of around 3% was the most realistic scenario.

289    In addition, in recitals 67 to 77 of the contested decision, the SRB made an assessment of the phase of the business cycle and the potential pro-cyclical impact that ex ante contributions might have on the financial position of the institutions. In the latter respect, it stated, inter alia, that it had taken account of the fact that the 2016 ex ante contributions would be substantially higher than the contributions levied in 2015 by the national resolution authorities under Directive 2014/59.

290    Having completed that assessment, the SRB concluded, in recital 78 of the contested decision, that, given the unfavourable developments within the banking sector and the level of uncertainty characterising the global economy in 2016, it was appropriate, in order not to exacerbate the pro-cyclical effects of the ex ante contributions on the banking industry’s solvency, to set a lower growth rate than that which had been projected on the basis of the growth rates of household deposits and deposits of non-financial corporations, that is to say, a growth rate of below 3%.

291    In the light of those considerations, in recital 80 of the contested decision, the SRB provided for a coefficient which it applied to determine the annual target level (‘the coefficient’), and set the value of that coefficient at 1.05%. It then calculated the amount of the annual target level by multiplying the amount of the covered deposits of all of the institutions in 2015 by that coefficient and dividing the result of that calculation by eight, in accordance with the following mathematical formula:

Target0 [amount of annual target level] = 5 339 158 631 522 [Total covered deposits2015] * 0.0105 * ⅛ = EUR 7 007 654 704.

292    With regard to the adequacy of that statement of reasons, first, it must be recalled that the 2016 contribution period corresponds to the first year of the initial eight-year period. Thus, although it follows from recital 60 of the contested decision that the annual target level should be set taking into account the financial means already available in the SRF, the institutions knew that that factor had no impact on the calculation of the annual target level for the 2016 contribution period.

293    Furthermore, it is clear, inter alia, from recitals 60 and 80 of the contested decision that the SRB determined the annual target level in two main stages. In the first stage, it determined the projected amount of the final target level and, in the second stage, it divided that amount by eight in order to take account of the fact that the initial period covered eight contribution years (see paragraphs 285 to 291 above).

294    However, there is nothing to indicate that the calculation of the annual target level for the 2016 contribution period was made using a different mathematical formula from that contained in recital 80 of the contested decision or that it involved other additional stages not set out in the contested decision.

295    In those circumstances, the view cannot be taken that the SRB failed to set out, in the contested decision, the main stages of the method of calculating the amount of the annual target level for the 2016 contribution period.

296    As regards, second, the projected amount of the final target level, it must be observed that that amount can be determined from the mathematical formula contained in recital 80 of the contested decision, as the applicant itself concedes and as the SRB confirmed at the hearing. More specifically, by multiplying the first two components of that formula, namely the amount of the institutions’ covered deposits in 2015 (EUR 5 339 158 631 522) and the coefficient (0.0105), the projected amount of the final target value can be obtained, namely, approximately EUR 56 billion.

297    As for, third, the manner in which the SRB determined the projected amount of the final target level, it follows from recital 59 of the contested decision that the SRB based its analysis on the fact that, in accordance with Article 69(1) of Regulation No 806/2014, that amount was to correspond to at least 1% of the amount of covered deposits of all of the institutions authorised in all of the participating Member States at the end of the initial period.

298    In that regard, it is clear from recitals 62 and 63 of the contested decision that the SRB took account of the projected evolution of the covered deposits of all of the authorised institutions in all of the participating Member States, from the amount of those deposits as it stood in 2015 up until the end of the initial period, namely, until the end of 2023.

299    Furthermore, it follows, inter alia, from recitals 66 and 78 of the contested decision that the SRB initially identified an annual growth rate of those covered deposits of 3% between 2015 and 2023, but subsequently scaled down that percentage in order to take into account the analysis of the phase of the business cycle and the potential pro-cyclical impact the ex ante contributions might have on the financial position of the institutions (see paragraphs 289 and 290 above).

300    Thus, it follows from the contested decision that the SRB applied an annual growth rate of covered deposits of less than 3% between 2015 and 2023 in order to determine the final target level.

301    Finally, it must be observed that, as follows from recitals 64 and 79 of the contested decision, when the annual target level for the 2016 contribution period was determined, the SRB did not have reliable data on the likely evolution of the institutions’ covered deposits between 2015 and 2013, because a re-definition of the covered deposits had been introduced only one year earlier by 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). Without such data, the SRB had to evaluate the projected evolution of the deposits on the basis of the growth rates of household deposits and the deposits of non-financial corporations, as is apparent from recital 64 of the contested decision.

302    In those specific circumstances and given that, in addition, the contested decision related to the first contribution period following the adoption of Regulation No 806/2014, the institutions, as prudent operators, could reasonably expect that, in order to determine the annual target level for that period, the SRB would also take into account the projected amount of the final target level, as set out in the explanatory memorandum to Commission Proposal COM(2013) 520 final of 10 July 2013, which led to the adoption of that regulation, according to which the Commission estimated that the final target level would amount to EUR 55 billion.

303    In the light of the foregoing, the institutions were able to understand the main rules in accordance with which the SRB would determine the final target level, with a view to determining the annual target level for the 2016 contribution period.

304    That conclusion is not called into question by the applicant’s arguments.

305    In the first place, the applicant criticises the fact that the contested decision does not contain the amount of the covered deposits of all of the institutions authorised in the territories of all of the participating Member States projected for the end of the initial period or the projected amount of the final target level.

306    In that regard, it is sufficient to recall that, as observed in paragraph 296 above, the projected amount of the final target level can be determined from the mathematical formula contained in recital 80 of the contested decision.

307    With regard, furthermore, to the amount of covered deposits projected for the end of the initial period, that amount does not constitute, within the scheme of the contested decision, an essential data point without which the applicant could not understand the main stages of the method followed by the SRB, as described in paragraph 293 above.

308    In the second place, the applicant submits that the contested decision does not provide figures which enable it to understand the reasons why the SRB set the coefficient specifically at 1.05%. In addition, the figures contained in the contested decision are contradictory. The fact that the SRB applied the coefficient of 1.05% means that the determination of the annual target level is based on cumulative growth in covered deposits of 5% over the eight years of the initial period, whereas the contested decision states that the determination of that level is based on an ‘annual’ growth rate of covered deposits of approximately 3%. The latter rate would mean cumulative growth in covered deposits of significantly more than 5% at the end of the initial period. Furthermore, it is not made clear whether the reference to a ‘conservative approach’ made in recital 79 of the contested decision means that the annual target level should have been set, as a precaution, at a higher level, or whether it means rather that the SRB relied on a low rate of growth in covered deposits.

309    That argument is based, first, on the erroneous premiss that, in order to determine the final target level, the SRB used an annual growth rate of covered deposits of ‘approximately 3%’. As previously stated in paragraph 300 above, it is clear from the contested decision, in particular from recital 78 thereof, that the SRB considered it was appropriate to ‘set the 2016 annual target level based on a projected covered deposits growth rate lower than the one otherwise identified based on the growth rate observed for household deposits and deposits of non-financial corporations’, namely, a rate of less than 3%. It can thus be inferred from that recital that the SRB applied a rate of between 0% and 3%. In addition, by emphasising that it had adopted a ‘conservative approach’, the SRB indicated, in essence, that it had considered it appropriate, for the reasons which it set out in the contested decision, to apply an annual growth rate at the lower end of that range.

310    In that regard, the SRB explained at the hearing, without being contradicted on this point by the applicant, that the amount of the final target level fixed by the contested decision (EUR 56 billion) corresponded to an annual growth rate of covered deposits of approximately 0.6%. Such an annual growth rate applied to the total of EUR 5 339 158 631 522 corresponds, after eight years, to a cumulative rate of 4.92% and is therefore not inconsistent, contrary to what the applicant claims, with a cumulative growth rate at the end of that eight-year period of approximately 5%, as is reflected in the coefficient of 1.05%.

311    In this respect, the contested decision is therefore not vitiated by any inconsistency.

312    Second, with regard to the applicant’s criticism that the contested decision does not provide figures which enable it to understand the reasons why the SRB set the coefficient specifically at 1.05%, it must be observed, in the first place, that it could be inferred from the information set out in the contested decision and from that reproduced in paragraphs 309 and 310 above that that coefficient corresponded to an expected cumulative growth rate of covered deposits at the end of the initial eight-year period of approximately 5%, which – in the present case – translated to an annual growth rate of approximately 0.6%. The latter rate is thus at the lower end of the range of between 0% and 3% used by the SRB, which is consistent with its conservative approach justified by the evaluation of the phase of the business cycle and of the potential pro-cyclical impact that the ex ante contributions might have on the financial position of the institutions. A prudent operator, such as the applicant, was therefore able to understand the relationship between those factors. In the second place, the coefficient of 1.05% allowed the SRB, in the specific circumstances of the case as recalled in paragraph 302 above, to bring the final target level into line with the projected amount of that level, as was set out in the travaux préparatoires for Regulation No 806/2014. In the third place, as regards the determination of a coefficient intended to reflect, in essence, an economic projection based on a number of changing, uncertain or variable factors, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning is based, since the contested decision clearly discloses the reasoning followed to enable the substance of that decision to be challenged subsequently before the competent court (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 108 and the case-law cited).

313    In the light of the foregoing, it must be concluded that, contrary to what the applicant claims, the contested decision is not vitiated by a failure to state reasons as regards the determination of the annual target level for the 2016 contribution period.

C.      Conclusion

314    Since none of the pleas in law put forward by the applicant is well founded, the action must be dismissed in its entirety.

V.      Costs

315    Pursuant to Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment which closes the proceedings. Pursuant to Article 219 of those rules, applicable to the present proceedings after referral, it is for General Court to rule on the costs relating to, on the one hand, the proceedings instituted before it and, on the other hand, the appeal proceedings before the Court of Justice.

316    In addition, under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

317    In the present case, the Court of Justice, in the judgment on appeal, set aside the initial judgment and reserved the costs. It is therefore necessary to rule, in this judgment, on the costs relating to the initial proceedings before the General Court, the appeal proceedings before the Court of Justice and the present proceedings after referral.

318    Since the SRB was unsuccessful in the appeal proceedings before the Court of Justice, it must be ordered to bear its own costs and to pay those incurred by the applicant relating to those proceedings.

319    Since the applicant has been unsuccessful on the merits in the referral proceedings, on the basis of the arguments which it had put forward in the context of the proceedings before the General Court prior to the appeal, it must be ordered to bear its own costs and to pay those incurred by the SRB relating to those two sets of proceedings.

320    Finally, in accordance with Article 138(1) of the Rules of Procedure, the Council and the Commission are to bear their own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders the Single Resolution Board (SRB) to bear its own costs and to pay those incurred by NRW.Bank relating to the appeal proceedings before the Court of Justice, in the context of Case C‑662/19 P;

3.      Orders NRW.Bank to bear its own costs and to pay those incurred by the SRB relating to the referral proceedings before the General Court, in the context of Case T‑466/16 RENV, and the initial proceedings before the General Court, in the context of Case T‑466/16;

4.      Orders the Council of the European Union and the European Commission to bear their own costs.

Kornezov

De Baere

Petrlík

Kecsmár

Kingston

Delivered in open court in Luxembourg on 21 February 2024.

[Signatures]

Table of contents

I. Background to the dispute and events subsequent to the bringing of the present action

II. Contested decision

III. Forms of order sought

IV. Law

A. The pleas of illegality with regard to Article 5(1)(f) and point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63, and to ‘Step 2’ in Annex I thereto

1. The ninth plea, based on a plea of illegality in respect of Article 5(1)(f) of Delegated Regulation 2015/63

(a) Preliminary observations

(b) The scope of Article 5(1)(f) of Delegated Regulation 2015/63

(c) The legality of Article 5(1)(f) of Delegated Regulation 2015/63

(1) The first part, alleging a failure to have regard to the travaux préparatoires for Directive 2014/59

(2) The second part, alleging infringement of the objective of relieving pressure on public budgets

(3) The third part, alleging a failure to have regard to the principle of aligning the ex ante contributions with the risk profile and to the principle of equal treatment

2. The tenth plea, based on pleas of illegality with regard to point (b) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63 and to ‘Step 2’ in Annex I thereto

B. The pleas concerning the lawfulness of the contested decision

1. The second and third pleas, alleging infringement by the contested decision of Article 41 of the Charter and of the duty to state reasons due to the lack of legal basis for the replacement of the initial decisions with retroactive effect

2. The fourth plea, based on the inadequacy of the statement of reasons as regards the calculation of the applicant’s ex ante contribution

(a) Preliminary observations

(b) The first part, concerning the lack of an individual statement of reasons in the contested decision

(c) The second part, concerning the failure to communicate the individual data of the other institutions

(d) The third part, concerning the inadequacy of the statement of reasons as regards the constitution of the bins

3. The sixth plea, alleging infringement of the ‘general procedural requirements’ arising from Article 41 of the Charter, Article 298 TFEU, general legal principles and the SRB’s rules of procedure

4. The first and seventh pleas, alleging infringement of Article 41(1) and (2)(a) of the Charter because of a failure to comply with the right to be heard

(a) The first part, concerning the insufficient period for the submission of observations as part of the consultation procedure

(b) The second part, concerning the fact that the final version of the contested decision was drawn up prior to the consultation procedure

5. The fifth plea, alleging infringement by the contested decision of the right to effective judicial protection

6. The eighth plea, alleging the unlawfulness of the contested decision in the light of Article 3(28) and Article 5(1)(f) of Delegated Regulation 2015/63

7. The eleventh plea, alleging infringement of general legal principles because the contested decision is not based on points of law in force on the date of its adoption

8. The statement of reasons for the determination of the annual target level

C. Conclusion

V. Costs

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*      Language of the case: German.