Provisional text

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

8 May 2024 (*)

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

In Case T‑393/21,

Max Heinr. Sutor OHG, established in Hamburg (Germany), represented by A. Glos, M. Rätz, H.‑U. Klöppel and M. Meisgeier, lawyers,

applicant,

v

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

defendant,

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 written part of the procedure,

further to the hearing on 9 March 2023,

gives the following

Judgment (1)

1        By its action based on Article 263 TFEU, the applicant, Max Heinr. Sutor OHG seeks annulment of Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund (‘the contested decision’), in so far as it concerns the applicant.

…

III. Forms of order sought

25      The applicant claims that the Court should:

–        annul the contested decision and the contested communication;

–        order the SRB to pay the costs.

26      The SRB contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs;

–        in the alternative, if the contested decision is annulled, 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.

IV.    Law

27      As a preliminary point, it must be recalled that, by its action, the applicant also seeks, as a precautionary measure, annulment of the contested communication, should the Court hold that the communication has independent content in relation to that of the contested decision, in response to the sixth plea. According to the applicant, in that communication, the SRB explains its decision not to grant the request to revise its data concerning ex ante contributions for the 2018 to 2020 contribution periods.

28      In that regard, the inevitable conclusion is that, notwithstanding the head of claim for annulment of the contested communication, as formulated by the applicant, the applicant’s line of argument is in fact limited to disputing the legality of the contested decision. Thus, the applicant does not put forward any independent and targeted line of argument concerning the contested communication. In those circumstances, it must be concluded that the sixth plea and the action in its entirety in fact relate to the contested decision alone.

29      In support of its action, the applicant raises fourteen pleas in law, relating to:

–        first, an infringement of Article 5(1)(e) of Delegated Regulation 2015/63;

–        second, a breach of the principle of proportionality referred to in the second subparagraph of Article 70(2) of Regulation No 806/2014, read together with Article 103(7) of Directive 2014/59;

–        third, a breach of the principle of equal treatment;

–        fourth, an infringement of the freedom to conduct a business protected by Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’);

–        fifth, an infringement of its freedom of establishment under Article 49 TFEU in conjunction with Article 54 TFEU;

–        sixth, an infringement of Article 17(3) and (4) of Delegated Regulation (EU) 2015/63;

–        seventh, an infringement of the right to be heard provided for in Article 41(1) and (2)(a) of the Charter;

–        eighth, a breach of the duty to state reasons provided for in Article 41(1) and (2)(c) of the Charter and in the second paragraph of Article 296 TFEU;

–        ninth, a breach of the principle of effective judicial protection provided for in Article 47(1) of the Charter;

–        tenth, in the alternative, a plea of illegality in respect of Articles 4 to 7 and 9 of, and Annex I to, Delegated Regulation 2015/63 because of a breach of the duty to state reasons provided for in the second paragraph of Article 296 TFEU;

–        eleventh, in the alternative, a plea of illegality in respect of Articles 4 to 7 and 9 of, and Annex I to, Delegated Regulation 2015/63 because of a breach of the principle of effective judicial protection provided for in Article 47(1) of the Charter;

–        twelfth, in the alternative, a plea of illegality in respect of Article 14(2) and Article 3(11) of Delegated Regulation 2015/63 because of an infringement of Article 103(7) of Directive 2014/59 and breach of the principle of equal treatment;

–        thirteenth, in the alternative, a plea of illegality in respect of Article 14(2) and Article 3(11) of Delegated Regulation 2015/63 because of an infringement of the freedom to conduct a business protected by Article 16 of the Charter;

–        fourteenth, in the alternative, a plea of illegality in respect of Article 14(2) and Article 3(11) of Delegated Regulation 2015/63 because of an infringement of the freedom of establishment protected by Article 49 TFEU in conjunction with Article 54 TFEU.

30      In its reply, the applicant stated that it was withdrawing the tenth and eleventh pleas.

31      It is appropriate to examine, first of all, the pleas by which the applicant claims that Article 14(2) and Article 3(11) of Delegated Regulation 2015/63 are unlawful and then the pleas relating directly to the legality of the contested decision.

A.      The pleas of illegality against Article 3(11), Article 5(1)(e) and Article 14(2) of Delegated Regulation 2015/63

32      By its twelfth, thirteenth and fourteenth pleas, the applicant raises pleas of illegality against Article 14(2) and Article 3(11) of Delegated Regulation 2015/63. However, it is apparent from the grounds of the application that the applicant also challenges, in essence, the legality of Article 5(1)(e) of that delegated regulation.

33      Thus, more specifically, the applicant submits, by the twelfth plea, that Article 3(11), Article 5(1)(e) and Article 14(2) of Delegated Regulation 2015/63 infringe Article 103(7) of Directive 2014/59 and breach the principle of equal treatment. By the thirteenth plea, the applicant claims that those provisions of Delegated Regulation 2015/63 also infringe the freedom to conduct a business protected by Article 16 of the Charter. By the fourteenth plea, the applicant submits that those provisions infringe the freedom of establishment protected by Articles 49 and 54 TFEU.

34      The applicant has raised those pleas of illegality in the event that Article 5(1)(e) of Delegated Regulation 2015/63 were to be interpreted as not allowing fiduciary liabilities to be excluded from the calculation of the liabilities used to determine ex ante contributions.

35      Thus, it is necessary to examine, first, whether Article 5(1)(e) of Delegated Regulation 2015/63 must be interpreted as not allowing such an exclusion. If that is the case, it will then be necessary to assess whether Article 14(2) and Article 3(11) of Delegated Regulation 2015/63 comply with Article 103(7) of Directive 2014/59, with the principle of equal treatment, with Article 16 of the Charter and with Articles 49 and 54 TFEU.

1.      The scope of Article 5(1)(e) of Delegated Regulation 2015/63

36      Under Article 5(1)(e) of Delegated Regulation 2015/63, ex ante contributions are to be calculated by excluding ‘in the case of investment firms, the liabilities that arise by virtue of holding client assets or client money …, provided that such a client is protected under the applicable insolvency law’.

37      The applicant submits that that provision must be interpreted as allowing the amount of its fiduciary liabilities to be excluded from the calculation of its liabilities when determining its ex ante contribution, since those liabilities satisfy the conditions laid down in that provision.

38      The SRB disputes the applicant’s arguments.

39      It is clear from the 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 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). According to that same case-law, an analysis that takes account 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).

40      In that regard, it must be recalled that, according to the case-law, provisions which establish a derogation must be strictly interpreted (see, to that effect, judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraphs 39 and 40). Thus, given that Article 5(1) of Delegated Regulation 2015/63 establishes a derogation from the general rule laid down in Article 103(2) of Directive 2014/59, by allowing certain liabilities to be excluded from the calculation of ex ante contributions, it is a provision which must be interpreted strictly.

41      In that context, it must be observed that Article 5(1)(e) of Delegated Regulation 2015/63 lays down three cumulative conditions for the exclusion of the liabilities concerned from the calculation of ex ante contributions, namely, first, that those liabilities must be held by an investment firm, second, that they must arise by virtue of holding client assets or client money and, third, that those clients must be protected under the applicable insolvency law.

42      As regards the first condition, the applicant submits that it must be regarded as an investment firm within the meaning of Article 5(1)(e) of Delegated Regulation 2015/63.

43      The concept of ‘investment firms’ is defined in Article 3(2) of Delegated Regulation 2015/63 as ‘investment firms as defined in point (3) of Article 2(1) of Directive 2014/59 …’.

44      It is common ground between the parties that, at the time the contested decision was adopted, point (3) of Article 2(1) of Directive 2014/59 defined the concept of ‘investment firm’ as referring to ‘an investment firm as defined in point (2) of Article 4(1) of Regulation (EU) No 575/2013 …’ which, in turn, defined the concept of ‘investment firm’ as referring to ‘a person as defined in point (1) of Article 4(1) of Directive 2004/39/EC, which is subject to the requirements imposed by that Directive, excluding (a) credit institutions …’.

45      It follows from the very wording of those provisions that the derogation in Article 5(1)(e) of the Delegated Regulation did not apply, at the time of the adoption of the contested decision, to entities which were both a credit institution and an investment firm, as was the case with the applicant. In that regard, it is not disputed that the applicant is a credit institution which has a banking licence as an institution within the meaning of Article 2 read in conjunction with Article 3(1)(13) of Regulation No 806/2014 and of point (2) of Article 2(1) of Directive 2014/59.

46      That conclusion is not called into question by the applicant’s assertion that it has an authorisation to provide the services and perform the investment activities referred to in points 1 to 7 of Section A of Annex I to Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349).

47      As the SRB contends, if the Commission had intended Article 5(1)(e) of Delegated Regulation 2015/63 to cover both credit institutions and investment firms, or even credit institutions which are also investment firms, it would have referred in that provision to ‘institutions’ and not to ‘investment firms’. Moreover, the Commission proceeded in that manner in subparagraphs (a), (b) and (f) of that provision by using the term ‘institution’. By contrast, where the Commission intended to limit the application of an exception under Article 5(1) of that delegated regulation to certain entities, it used more precise wording, such as ‘central counterpart[ies]’, ‘central securities depositor[ies]’ and ‘investment firms’, employed in subparagraphs (c), (d) and (e) of that provision.

48      As regards, lastly, the applicant’s argument that the reference in point (3) of Article 2(1) of Directive 2014/59 to point (2) of Article 4(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) constitutes an erroneous reference which the SRB should have corrected, the applicant provides no tangible evidence in support of that assertion.

49      In that regard, it must be recalled that the definition of ‘investment firm’, as currently provided for in point (3) of Article 2(1) of Directive 2014/59, was amended by Article 63(1) of Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU (OJ 2019 L 314, p. 64). That definition now refers to point (22) of Article 4(1) of Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014 (OJ 2019 L 314, p. 1), which refers, in relation to the concept of ‘investment firm’, to point (1) of Article 4(1) of Directive 2014/65, which defines that concept as applying to any legal person providing investment services to third parties, without excluding credit institutions from that definition.

50      However, it is common ground between the parties that that amendment of the definition of ‘investment firm’ in point (3) of Article 2(1) of Directive 2014/59 was applicable only from 26 June 2021, in accordance with the second subparagraph of Article 67(1) of Directive 2019/2034, read in the light of recital 39 of that directive.

51      It follows from the foregoing that Article 5(1)(e) of Delegated Regulation 2015/63, in the version applicable at the time of the adoption of the contested decision, on 14 April 2021, must be interpreted as not allowing liabilities held by credit institutions, such as the applicant, to be excluded from the calculation of liabilities used to determine their ex ante contribution.

52      In those circumstances, the applicant’s fiduciary liabilities do not satisfy the first condition laid down in Article 5(1)(e) of that delegated regulation.

53      Given that the three conditions laid down in Article 5(1)(e) of that delegated regulation are cumulative, the applicant’s argument must be rejected in its entirety, without it being necessary to examine whether the other two conditions are satisfied.

54      Consequently, it is necessary to examine the pleas of illegality raised by the applicant in the twelfth, thirteenth and fourteenth pleas.

2.      The twelfth plea, alleging that Article 3(11), Article 5(1)(e) and Article 14(2) of Delegated Regulation 2015/63 are unlawful in that they are contrary to Article 103(7) of Directive 2014/59 and to the principle of equal treatment

55      The present plea consists of two parts, alleging, first, that Article 3(11), Article 5(1)(e) and Article 14(2) of Delegated Regulation 2015/63 are unlawful on account of the infringement of Article 103(7) of Directive 2014/59 and, second, breach of the principle of equal treatment by those same provisions.

56      As a preliminary point, it must be observed that, under Article 14(2) of Delegated Regulation 2015/63, institutions are required to provide the SRB at least with the information referred to in Annex II of that delegated regulation, it being understood that, according to the second indent of that annex, institutions are required to submit to the SRB data relating to ‘total liabilities’, defined in Article 3(11) of that delegated regulation as being the total liabilities within the meaning of Section 3 of Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ 1986 L 372, p. 1), or within the meaning of the International Financial Reporting Standards referred to in Regulation (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards (OJ 2002 L 243, p. 1).

(a)    The first part, alleging infringement of Article 103(7) of Directive 2014/59

57      It is apparent from paragraphs 39 to 53 above that Article 5(1)(e) of Delegated Regulation 2015/63 does not provide for the exclusion of fiduciary liabilities from the calculation of ex ante contributions and thus includes those liabilities in that calculation. Nor is such an exclusion provided for in Article 3(11) or Article 14(2) of that delegated regulation.

58      The applicant submits, in essence, that the abovementioned provisions of Delegated Regulation 2015/63 infringe Article 103(7)(a) of Directive 2014/59 because they fail to take into consideration that, for the purpose of determining the risk profile of institutions, fiduciary liabilities are risk-free.

59      The SRB disputes the applicant’s arguments.

60      In that regard, it must be observed that, in accordance with Article 103(7) of Directive 2014/59, the Commission is empowered to adopt delegated acts in order to specify the notion of ‘adjusting ex ante contributions in proportion to the risk profile of institutions’.

61      However, in the context of a delegated power within the meaning of Article 290 TFEU, the Commission enjoys broad discretion in the exercise of the powers conferred on it where it is called upon, inter alia, to make 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).

62      That is the case as regards the determination of the criteria for adjusting ex ante contributions in proportion to the risk profile pursuant to Article 103(7) of Directive 2014/59.

63      In that regard, it must be recalled 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).

64      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.

65      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.

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

67      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.

68      In the light of the foregoing, the Commission had a broad discretion for the purposes of adopting, pursuant to Article 103(7) of Directive 2014/59, the rules specifying the notion of ‘adjusting ex ante contributions in proportion to the risk profile of the institutions’.

69      In those circumstances, as regards the method of adjusting the basic annual contributions pursuant to Article 103(7) of Directive 2014/59, the review by the Courts of the European Union must be limited to examining whether the exercise of the discretion afforded to the Commission has been vitiated by a manifest error or a misuse of power, 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).

70      In those circumstances, it is for the applicant to demonstrate that the provisions cited in paragraph 57 above are vitiated by a manifest error or a misuse of power or that they manifestly exceed the limits of the discretion conferred on the Commission by Article 103(7) of Directive 2014/59, by failing to provide for the exclusion of fiduciary liabilities from the calculation of its ex ante contribution.

71      In that regard, the applicant claims that the Commission infringed Article 103(7) of Directive 2014/59, since the fiduciary liabilities are risk-free, which is relevant for the calculation of ex ante contributions for two reasons. In the first place, in the applicant’s view, the client money which it holds in trust is protected if it becomes insolvent under German insolvency law. In the second place, the applicant submits that, in so far as it is required to transfer client funds to financial product institutions, those funds are also protected, in the event of the failure of such an institution, by the deposit guarantee scheme within the meaning of 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).

72      It must be recalled, first of all, that, under Article 103(7) of Directive 2014/59, there are eight factors which the Commission must take into account for the purposes of adjusting ex ante contributions in proportion to the risk profile of institutions. Although ‘the risk exposure of the institution’ is one such factor, so that the Commission is required to take it into account when adopting a delegated act such as Delegated Regulation 2015/63, it is only one of eight criteria which the Commission must take into account when drawing up such an act.

73      Second, there is nothing in Article 103(7) of Directive 2014/59 to indicate that the Commission is required to give precedence to one or more of those factors referred to in paragraph 72 above, such as the risk exposure of the institution. Moreover, that provision does not specify how the Commission is required to take account of that exposure.

74      Lastly, and in any event, the applicant has not established that the fiduciary liabilities were risk-free in the event of resolution.

75      As regards, first of all, the applicant’s argument that the fiduciary liabilities involve no risk in the case of resolution because client money held in trust is protected by German law in the event of insolvency, it must be observed that the applicant has not disputed the SRB’s assertion that that law does not grant any particular protection to client funds as long as they are in the transit account.

76      In that regard, the SRB has explained, without the applicant disputing it, that holding those funds in a transit account increased the risk associated with the fiduciary liabilities, since those funds were not immediately segregated from the applicant’s other funds and were therefore not protected by German law in the event of insolvency.

77      In that regard, it is also apparent from the application, as well as having been confirmed by the applicant at the hearing that, so far as the applicant is concerned, those funds are transferred to collective trust accounts with financial product institutions on the 15th or 30th of the month, which means that the funds may remain in the transit account for a maximum of 15 days without being protected under German law in the event of insolvency.

78      Similarly, the applicant is wrong to claim that the fiduciary liabilities do not involve any risk once the client funds are transferred from the transit account to the financial product institutions, since, in the event of the failure of such an institution, those funds are protected by the deposit guarantee scheme.

79      In that regard, the applicant did not contest the SRB’s argument that, in order for client funds to be protected by the deposit guarantee scheme, the financial product institutions concerned must have their registered office in a Member State and clients must not place more than EUR 100 000 in such institutions. That protection is therefore limited both territorially and quantitatively.

80      In the light of the foregoing, the applicant has not established that Article 3(11), Article 5(1)(e) and Article 14(2) of Delegated Regulation 2015/63 were contrary to Article 103(7) of Directive 2014/59.

(b)    The second part, alleging breach of the principle of equal treatment

81      The applicant submits, in essence, that the failure to exclude fiduciary liabilities from the calculation of ex ante contributions in Article 3(11), Article 5(1)(e) and Article 14(2) of Delegated Regulation 2015/63 is contrary to the principle of equal treatment, in so far as credit institutions, such as itself, are in a situation which is comparable to that of the investment firms referred to in Article 5(1)(e) of that delegated regulation, but are treated differently.

82      The SRB disputes that line of argument.

83      It should 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).

84      Since the applicant has invoked a breach of the principle of equal treatment, it falls to the applicant to identify precisely the comparable situations which it considers to have been treated differently or the different situations which it considers to 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).

85      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).

86      As regards the subject matter and purpose of Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63, it should be recalled that those acts fall within the scope of the SRM, the establishment of which seeks, 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 institutions of the Member States participating in the SRM and to prevent the spill-over of crises into non-participating Member States, in order to facilitate the functioning of the internal market as a whole.

87      As regards, moreover, more specifically, the provisions of Directive 2014/59, Regulation No 806/2014 and Delegated Regulation 2015/63 which establish ex ante contributions, it is apparent from paragraph 63 above that their objective is to ensure, 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 to encourage the institutions to adopt less risky methods of operation.

88      It is in the light of those principles and objectives that it is necessary to examine, in the first place, whether credit institutions which are also authorised to perform investment activities, such as the applicant, are in a situation comparable to that of the investment firms referred to in Article 5(1)(e) of Delegated Regulation 2015/63 (‘investment firms’) as regards the taking into account of fiduciary liabilities for the purposes of calculating ex ante contributions.

89      In that regard, it must be observed that ex ante contributions are intended to finance resolution actions the adoption of which is subject to the condition, set out in Article 18(1)(c) and (5) of Regulation No 806/2014, that such action is necessary in the public interest, that is to say, that it enables the achievement of, inter alia, the objective – referred to in Article 14(2)(b) of that regulation – of avoiding the significant adverse effects that the liquidation of an institution would have on financial stability, in particular by preventing contagion, including to market infrastructures, and by maintaining market discipline.

90      As stated in recital 4 of Directive 2019/2034, credit institutions and investment firms do not present a comparable risk as regards the adverse effects that their failure could have on financial stability, since, unlike credit institutions, investment firms do not have large portfolios of retail and corporate loans and do not take deposits. Holding large portfolios of retail and corporate loans and deposits entails a risk to financial stability when individuals or undertakings fail, on a large scale, to repay those loans to the credit institutions concerned or when a significant number of deposits are withdrawn.

91      That is all the more so since credit institutions and investment firms each have a different clientele. As the SRB contends, without being contradicted on that point, the clients of investment firms are persons who use certain specific services related to financial instruments, that finding being confirmed by the definition of the concept of ‘client’ of such undertakings, which is set out in point (9) of Article 4(1) of Directive 2014/65. However, as is apparent from point (1) of Article 4(1) of Regulation No 575/2013, the business of credit institutions, including those which are also authorised to perform investment activities, is to take deposits or other repayable funds from the public and to grant credits for their own account, so they provide their services to a wider group.

92      In those circumstances, the likelihood of a credit institution being placed under resolution, pursuant to Article 18(1)(c) and (5) of Regulation No 806/2014, is higher than in the case of an investment firm, with the result that those two categories of institution are not in a comparable situation in that regard.

93      Similarly, the situation of those institutions is not comparable as regards the treatment of fiduciary liabilities.

94      In that regard, the applicant has not seriously disputed that, in accordance with Paragraph 84(2) of the Wertpapierhandelsgesetz (Law on Securities Trading) of 9 September 1998 (BGBl. 1998 I, p. 2708), investment firms, which are not authorised to perform deposit transactions, are required immediately to segregate funds received from clients in trust accounts opened with credit institutions. By contrast, credit institutions such as the applicant are not obliged to do so in the context of performing investment activities given that, as is apparent from the considerations set out in paragraphs 76 to 77 above, they are not required to transfer those funds immediately from the transit account to the financial product institutions.

95      In those circumstances, the applicant has not established that the fiduciary liabilities held by investment firms were exposed to a level of risk comparable to that of the fiduciary liabilities held by credit institutions also authorised to perform investment activities, such as the applicant. Consequently, the applicant cannot maintain that credit institutions also authorised to perform investment activities, such as itself, are in a situation comparable to that of investment firms and that, therefore, those two types of institutions must be treated in the same way as regards the exclusion of fiduciary liabilities for the purposes of calculating ex ante contributions.

96      In the second place, the applicant submits that Article 3(11) and Article 14(2) of Delegated Regulation 2015/63 give rise to unequal treatment between establishments having their registered office in Germany and those having their registered office in Member States which have availed themselves of the derogation provided for in the third sentence of Article 10(1) of Directive 86/635.

97      In that regard, it must be recalled that, in accordance with point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014 and Article 103(2) of Directive 2014/59, the SRB calculates a basic annual contribution for each institution, as set out in paragraph 17 above. That contribution is pro-rata based on the amount of the concerned institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the Member States participating in the SRM – as far as concerns the part of that contribution calculated on the union base – and of all of the institutions authorised in the territories of the Member State in which the institution in question has its head office – for the part of that contribution calculated on the national base.

98      As regards the determination of the liabilities to be taken into account for the purposes of that calculation, it must be recalled that Article 3(11) of Delegated Regulation 2015/63 defines ‘total liabilities’ as ‘total liabilities as defined in Section 3 of Council Directive 86/635 … or as defined in accordance with the International Financial Reporting Standards referred to in Regulation … No 1606/2002 …’.

99      Moreover, in accordance with Article 10(1) of Directive 86/635, which forms part of Section 3 of that directive, funds which an institution administers in its own name but on behalf of third parties must, as a general rule, be shown in that institution’s balance sheet if it acquires legal title to the assets concerned.

100    That said, the third sentence of Article 10(1) of Directive 86/635 provides that the Member States may permit the institutions concerned to disclose such funds off the balance sheet, provided there are special rules in place whereby those funds can be excluded from the assets available for distribution in the event of the winding-up of the institution.

101    In that regard, the parties stated that, under the provisions adopted by the Federal Republic of Germany in order to comply with Article 10 of Directive 86/635, the fiduciary liabilities of a credit institution authorised to perform investment activities and having its registered office in that State, such as the applicant, must be shown in its balance sheet.

102    The parties also stated that certain Member States had exercised the option made available to them under the third sentence of Article 10(1) of Directive 86/635, permitting institutions having their registered office in those States to disclose funds which they administer in their own name but on behalf of third parties off the balance sheet.

103    It follows, according to the applicant, that if an institution has its registered office in a Member State which has exercised the option made available under the third sentence of Article 10(1) of Directive 86/635, it may disclose the liabilities relating to such fiduciary activities off the balance sheet, with the result that those liabilities are not taken into account in the calculation of its basic annual contribution. Conversely, the fiduciary liabilities of institutions having their registered office in Member States which have not exercised the option to disclose fiduciary assets and liabilities off the balance sheet, such as Germany, are taken into account for the purposes of that calculation.

104    Thus, the consequence described in paragraph 103 above follows from the joint application of point (b) of the second subparagraph of Article 70(2) of Regulation No 806/2014 and Article 103(2) of Directive 2014/59, read in the light of Section 3 of Directive 86/635, and in particular of the third sentence of Article 10(1) thereof, which defines the concept of institutions’ ‘liabilities’ and lays down the possibility for Member States to opt for different rules concerning the inclusion of fiduciary liabilities in the balance sheet of institutions.

105    However, the applicant has not challenged the validity of those provisions in the light of the principle of equal treatment.

106    Furthermore, if the applicant’s line of argument were to be understood as meaning that the applicant submits, in actual fact, that Article 3(11) and Article 14(2) of Delegated Regulation 2015/63 breach the principle of equal treatment on the ground that those provisions do not take account of the difference between the accounting rules of the various Member States as regards the inclusion of fiduciary liabilities in the balance sheet of institutions, it must be observed that the principle of equal treatment cannot empower the Commission, when it adopts delegated acts under Article 290 TFEU, to act beyond the delegated powers conferred on it by the EU legislature on the basis of that provision. Consequently, it is not for the Commission to address divergent national methods of implementing EU law, unless it is empowered to do so by a legislative act.

107    In the present case, neither Directive 2014/59 nor Regulation No 806/2014 empowered the Commission to harmonise the national accounting rules concerning the inclusion of fiduciary liabilities in the balance sheet of institutions.

108    In those circumstances, the applicant cannot claim that the Commission infringed the principle of equal treatment by failing to address the differences in the national accounting rules relating to the inclusion of those liabilities in that balance sheet.

109    In any event, even if the Commission could have given, in Article 3(11) of Delegated Regulation 2015/63, a definition of liabilities other than that set out in Section 3 of Directive 86/635, it would not follow that Article 3(11) of that delegated regulation infringes the principle of equal treatment.

110    As is clear from the case-law, the prohibition on discrimination is not concerned with any disparities in treatment which may result, between the Member States, from divergences existing between the legislation of the various Member States so long as that legislation affects equally all persons subject to it (see, to that effect, judgments of 16 July 2009, Horvath, C‑428/07, EU:C:2009:458, paragraph 55, and of 19 September 2013, Panellinios Syndesmos Viomichanion Metapoiisis Kapnou, C‑373/11, EU:C:2013:567, paragraph 35).

111    While it is true that that principle was developed in the context of the interpretation of provisions of European Union law with a view to assessing the compatibility of national legislation by reference to the principle of non-discrimination, the situation cannot be any different as regards the assessment of the validity of the provision of European Union law granting the Member States a margin of discretion by virtue of which they adopt such different legislation (judgment of 19 September 2013, Panellinios Syndesmos Viomichanion Metapoiisis Kapnou, C‑373/11, EU:C:2013:567, paragraph 36).

112    In the present case, the applicant has not claimed, let alone demonstrated, that the German legislation concerned did not affect equally all persons subject to it.

113    Furthermore, the adoption of EU legislation within a particular field of activity may affect certain traders in different ways because of their individual situation or the national rules to which they are subject; that fact cannot be regarded as a breach of the principle of equal treatment if that legislation is based on objective criteria which are adapted to meet the aims pursued by the legislation (see, to that effect and by analogy, judgment of 19 September 2013, Panellinios Syndesmos Viomichanion Metapoiisis Kapnou, C‑373/11, EU:C:2013:567, paragraph 34 and the case-law cited).

114    In that regard, the applicant has not submitted to the Court any evidence showing that Article 3(11) of Delegated Regulation 2015/63, in so far as it refers to Section 3 of Directive 86/635, was not based on objective criteria adapted to the aims pursued by Delegated Regulation 2015/63.

115    The applicant’s argument must therefore be dismissed.

116    In the third place, the applicant submits that it is being treated differently to credit institutions which draw up their balance sheets in accordance with international accounting standards, while the applicant is unable to draw up its balance sheet in accordance with those standards, since, under the applicable German legislation, only parent companies have the right to draw up their balance sheet exclusively in accordance with those standards.

117    In that regard, it must be observed, first, that such alleged unequal treatment is the consequence of the application of a rule which has its origin in the applicable German legislation and not in Article 3(11), Article 5(1)(e) or Article 14(2) of Delegated Regulation 2015/63, the validity of which is disputed by the applicant.

118    Second, and in any event, as the applicant itself acknowledges, it could have prepared accounts in accordance with international accounting standards, but chose not to do so for administrative and financial reasons. In those circumstances, the applicant cannot rely on a difference in treatment on that basis.

119    It follows from the foregoing that the applicant has not demonstrated that Article 3(11), Article 5(1)(e) or Article 14(2) of Delegated Regulation 2015/63 breach the principle of equal treatment.

120    Consequently, the twelfth plea must be dismissed as unfounded.

…

B.      The pleas relating to the lawfulness of the contested decision

1.      The first plea, alleging an infringement of Article 5(1)(e) of Delegated Regulation 2015/63

144    The applicant claims that, by refusing to exclude the amount of its fiduciary liabilities from the calculation of the ex ante contributions, the contested decision infringes Article 5(1)(e) of Delegated Regulation 2015/63. The line of argument put forward in support of that plea is divided into two parts.

(a)    The first part, alleging failure to take into account the fact that the applicant satisfies all the conditions laid down in Article 5(1)(e) of Delegated Regulation 2015/63

145    The applicant claims that, by refusing to exclude the amount of its fiduciary liabilities from the calculation of the ex ante contributions, the contested decision infringes Article 5(1)(e) of Delegated Regulation 2015/63.

146    The SRB disputes that line of argument.

147    As is clear from paragraphs 39 to 52 above, Article 5(1)(e) of Delegated Regulation 2015/63 must be interpreted as not allowing the applicant’s fiduciary liabilities to be excluded from the calculation of its ex ante contribution.

148    In those circumstances, the SRB did not err in law when it did not exclude the amount of those liabilities from the calculation of the applicant’s ex ante contribution.

149    Consequently, the first part of the first plea must be dismissed as unfounded.

(b)    The second part, relating to the application by analogy of Article 5(1)(e) of Delegated Regulation 2015/63

150    The applicant submits that, if Article 5(1)(e) of Delegated Regulation 2015/63 is to be interpreted as not allowing its fiduciary liabilities to be excluded from the calculation of its ex ante contribution, the objective of that delegated regulation and the principles of equal treatment and proportionality require that that provision be applied by analogy to its situation.

151    The SRB disputes that line of argument.

152    First of all, it should be borne in mind that, according to the case-law, the application of Article 5(1)(e) of Delegated Regulation 2015/63 to situations that are comparable to those specified in that article, even though those situations do not satisfy all the conditions laid down in that provision, is incompatible with the wording of that provision (see, to that effect, judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 92).

153    Thus, the Court of Justice held that Article 5(1) of Delegated Regulation 2015/63 did not confer any discretion on the competent authorities to exclude certain liabilities when adjusting the ex ante contributions that are the subject of Article 103(2) of Directive 2014/59 in proportion to risk, but rather listed precisely the conditions governing whether certain liabilities could be excluded from the calculation of ex ante contributions (see, to that effect, judgment of 3 December 2019, Iccrea Banca, C‑414/18, EU:C:2019:1036, paragraph 93).

154    Consequently, contrary to the applicant’s submissions, the SRB did not err in law when it did not apply, by analogy, Article 5(1)(e) of Delegated Regulation 2015/63 to the applicant.

155    An analysis that takes account of the principles of equal treatment and proportionality, relied on by the applicant, 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).

156    In any event, in the light of the considerations set out in paragraphs 83 to 120 above, the applicant cannot claim that the failure to apply, by analogy, Article 5(1)(e) of Delegated Regulation 2015/63 is contrary to the principle of equal treatment.

157    The same conclusion must be drawn as regards the principle of proportionality.

158    In that regard, it is apparent from the case-law that the principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question, it being understood that, when 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).

159    As regards, first of all, the appropriateness of including the applicant’s fiduciary liabilities in the calculation of its ex ante contribution, the applicant does not dispute that the inclusion of its fiduciary liabilities in the calculation of those contributions helps to achieve the objectives of ex ante contributions, described in paragraph 63 above, by providing adequate financial resources for the SRM to be able to fulfil its functions and encouraging institutions to adopt less risky methods of operation.

160    In that regard, the applicant has merely made unsubstantiated assertions.

161    The applicant submits, first, that the inclusion of its fiduciary liabilities in the calculation of its ex ante contribution imposes an unacceptable burden on it which is clearly disproportionate in relation to its size. In the light of the considerations set out in paragraphs 39 to 52 above, such an argument cannot be accepted, since the exclusion of the liabilities set out in Article 5(1)(e) of Delegated Regulation 2015/63 does not depend on the size of the institutions concerned, but on compliance with the conditions laid down in that provision, which are unrelated to their size.

162    Second, the applicant claims that the inclusion of the amount of its fiduciary liabilities in the calculation of its liabilities when determining its ex ante contribution is contrary to the criteria laid down in Article 103(7) of Directive 2014/59. In that regard, it is sufficient to note that the applicant does not explain, to the requisite legal standard, the link between that argument and the principle of proportionality.

163    As regards, next, the need to include the applicant’s fiduciary liabilities in the calculation of its ex ante contribution in the light of the objectives referred to in paragraph 63 above, it must be observed that the applicant puts forward, in essence, two arguments.

164    First, the applicant submits that it is not necessary to take into account its fiduciary liabilities, since client funds are already collected in the form of deposits by financial product institutions and protected by their deposit guarantee scheme, and there are sufficient guarantees that those clients are protected by the applicable insolvency law. According to the applicant, taking its fiduciary liabilities into account would lead to those liabilities being counted twice in the calculation of its ex ante contribution.

165    In that regard, the applicant does not, however, explain which specific method of calculating ex ante contributions would be less onerous for the institutions, while being appropriate to achieve, in an equally effectively manner, the objectives referred to in paragraph 63 above, and offsetting, inter alia, the reduction in the available financial means of the SRF which would be caused by such an exclusion.

166    Next, and in any event, the applicant has not put forward any evidence capable of calling into question the SRB’s assertion, referred to in paragraph 79 above, that, in order for clients’ funds to be protected by the deposit guarantee scheme, the financial product institutions concerned must have their registered office in a Member State and clients must not place more than EUR 100 000 in such institutions.

167    As regards, lastly, the applicant’s argument that taking its fiduciary liabilities into account would lead to the alleged double counting of those liabilities in the calculation of its ex ante contribution, it is sufficient to note that the applicant does not put forward any arguments indicating that the Commission intended, by Article 5(1)(e) of Delegated Regulation 2015/63, to eliminate entirely any form of double counting of liabilities.

168    Second, the applicant claims that the inclusion of its fiduciary liabilities in the calculation of its ex ante contribution does not satisfy the criterion of necessity, since, in the event of insolvency, its clients would be entitled to the segregation of the fiduciary assets managed by it, which shows that there are adequate guarantees of protection for those clients.

169    First, that line of argument must be rejected for the same reasons as those set out in paragraph 165 above.

170    Second, and in any event, the applicant has not established that its clients’ assets and money would be covered in the event of insolvency by guarantees comparable to those covering client assets and client money at investment firms, as stated in paragraphs 75 to 77 above.

171    Lastly, the applicant has not submitted to the Court any specific evidence intended to show that the inclusion of its fiduciary liabilities in the calculation of its ex ante contribution would lead to disadvantages which are manifestly disproportionate to the objectives referred to in paragraph 63 above.

172    In those circumstances, the second part of the first plea and, therefore, that plea in its entirety, must be rejected.

…

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

240    As a preliminary point, it must be observed that an absence of or 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). Consequently, the Court may, or even must, also take into account failures to state reasons other than those relied on by the applicant, in particular where they are revealed in the course of the proceedings.

241    In the present case, the Court considers that it must examine of its own motion whether the SRB infringed its obligation to state reasons as regards the determination of the annual target level.

242    To that end, the parties were heard, by way of a measure of organisation of procedure and at the hearing, on all potential failures to state reasons possibly vitiating the contested decision as regards the determination of the annual target level.

243    That said, it must be recalled that, in accordance with Article 69(1) of Regulation No 806/2014, by the end of the initial period of eight years from 1 January 2016 (‘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 the territories of all of the Member States participating in the SRM (‘the final target level’).

244    According to 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 243 above is reached, but with due account taken of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of the institutions.

245    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 Member States participating in the SRM are not to exceed 12.5% of the final target level.

246    In relation to the method of calculating 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 Member States participating in the SRM.

247    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.

248    In the present case, as is apparent from recital 48 of the contested decision, the SRB set the amount of the annual target level at EUR 11 287 677 212.56 for the 2021 contribution period.

249    In recitals 36 and 37 of the contested decision, the SRB explained, in essence, that the annual target level was to be determined on the basis of an analysis of the evolution of covered deposits in previous years, any relevant development in the economic situation, and an analysis of the indicators related to the phase of the business cycle and the impact that pro-cyclical contributions might have on the financial position of the institutions. Subsequently, the SRB deemed it appropriate to determine a coefficient based on that analysis and on the financial means available in the SRF (‘the coefficient’). The SRB applied that coefficient to one eighth of the average amount of covered deposits in 2020 in order to obtain the annual target level.

250    The SRB set out the approach taken to set the coefficient in recitals 38 to 47 of the contested decision.

251    In recital 38 of the contested decision, the SRB found there to be a constant growth trend in covered deposits for all of the institutions in the Member States participating in the SRM. Specifically, the average amount of those deposits, calculated quarterly, amounted to EUR 6.689 trillion in 2020.

252    In recitals 40 and 41 of the contested decision, the SRB presented the forecasted evolution of covered deposits for the three remaining years of the initial period, namely from 2021 to 2023. It estimated that the annual rate of growth of covered deposits until the end of the initial period would be between 4% and 7%.

253    In recitals 42 to 45 of the contested decision, the SRB presented an assessment of the phase of the business cycle and of the potential pro-cyclical impact that ex ante contributions may have on the financial position of the institutions. To that end, it stated that it had taken into account a number of indicators, such as the Commission’s gross domestic product growth forecast and the projections of the European Central Bank (ECB) in that regard or the private-sector credit flow as a percentage of gross domestic product.

254    In recital 46 of the contested decision, the SRB concluded that, while it was reasonable to expect the further growth of covered deposits in the banking union, the pace of that growth would be lower than in 2020. In that regard, the SRB stated, in recital 47 of the contested decision, that it had adopted a ‘conservative approach’ with regard to the growth rates of covered deposits for the coming years until 2023.

255    In the light of those considerations, the SRB set, in recital 48 of the contested decision, the value of the coefficient at 1.35%. It then calculated the amount of the annual target level by multiplying the average amount of covered deposits in 2020 by that coefficient and dividing the result of that calculation by eight, in accordance with the following mathematical formula, set out in recital 48 of that decision:

‘Target0 [amount of annual target level] = Total covered deposits2020 * 0.0135 * ⅛ = EUR 11 287 677 212.56’.

256    However, at the hearing, the SRB stated that it had determined the annual target level for the 2021 contribution period as follows.

257    First, on the basis of a prospective analysis, the SRB determined the amount of the covered deposits of all of the institutions authorised in the territories of all of the Member States participating in the SRM, as forecasted for the end of the initial period, at approximately EUR 7.5 trillion. To arrive at that amount, the SRB took into account the average amount of covered deposits in 2020, that is to say, EUR 6.689 trillion, an annual growth rate of covered deposits of 4% and the number of contribution periods remaining until the end of the initial period, namely three.

258    Second, in accordance with Article 69(1) of Regulation No 806/2014, the SRB calculated 1% of those EUR 7.5 trillion to obtain the estimated amount of the final target level to be reached at the end of the initial period, namely approximately EUR 75 billion.

259    Third, the SRB deducted from the latter amount the financial means already available in the SRF in 2021, that is to say approximately EUR 42 billion, to obtain the amount still to be collected over the remaining contribution periods before the end of the initial period, namely from 2021 to 2023. That amount stood at approximately EUR 33 billion.

260    Fourth, the SRB divided the latter amount by three to spread it evenly over those three remaining contribution periods. The annual target level for the 2021 contribution period was thus set at the amount stated in paragraph 248 above, that is to say, approximately EUR 11.287 billion.

261    The SRB also stated at the hearing that it had made public the data which had formed the basis for the method described in paragraphs 257 to 260 above and which allowed the applicant to understand the method by which the annual target level had been determined. In particular, it explained that, in May 2021, that is to say, after the adoption of the contested decision but before the present action was brought, it had published on its website a fact sheet entitled ‘Fact Sheet 2021’ (‘the fact sheet’), which stated the estimated amount of the final target level. Similarly, the SRB asserted that the amount of the available financial means in the SRF could also be found on its website and via other public sources well before the contested decision was adopted.

262    As regards the content of the duty to state reasons, it is apparent from the case-law that the statement of reasons for a decision taken by an EU institution or body must, inter alia, be free from contradictions so as to enable the persons concerned to ascertain the real reasons for that decision, in order to defend their rights before the court with jurisdiction, and to enable the latter to exercise its power of review (see, to that effect, judgments 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; of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 20 and 45 to 47; and of 16 December 2015, Greece v Commission, T‑241/13, EU:T:2015:982, paragraph 56).

263    Similarly, where the author of the contested decision provides certain explanations concerning the reasons for that decision in the course of the procedure before the Courts of the European Union, those explanations must be consistent with the considerations set out in that decision (see, to that effect, judgments of 22 September 2005, Suproco v Commission, T‑101/03, EU:T:2005:336, paragraphs 45 to 47, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraphs 54 and 55).

264    If the considerations set out in the contested decision are inconsistent with such explanations provided in the course of the judicial proceedings, the statement of reasons for the decision concerned does not fulfil the functions set out in paragraphs 217 and 218 above. In particular, such inconsistency prevents the persons concerned from knowing the real reasons for the contested decision, before bringing an action, and from preparing their defence in that regard, and also prevents the Courts of the European Union from identifying the reasons which served as the actual legal basis for that decision and from examining the compatibility of those reasons with the applicable rules.

265    Finally, it must be recalled that, when the SRB adopts a decision setting the ex ante contributions, it must inform the institutions concerned of the method of calculating 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).

266    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 calculating the ex ante contributions consists of dividing that amount among all the institutions concerned, with the result that an increase or a reduction in the same amount leads to a corresponding increase or reduction in the ex ante contribution of each of those institutions.

267    It follows from the foregoing that, although the SRB is required to provide the institutions, by means of the contested decision, with explanations concerning the method of determining the annual target level, those explanations must be consistent with the explanations provided by the SRB during the judicial proceedings relating to the method actually applied.

268    That is not the case here, however.

269    It must be observed, first of all, that recital 48 of the contested decision set out a mathematical formula which was presented as forming the basis for determining the annual target level. However, it appears that that formula does not incorporate the components of the method actually applied by the SRB, as explained at the hearing. As is clear from paragraphs 257 to 260 above, the SRB obtained the amount of the annual target level, using that method, by deducting from the final target level the available financial means in the SRF, with a view to calculating the amount still to be collected until the end of initial period, and dividing the latter amount by three. However, those two steps of the calculation are not expressed in that mathematical formula.

270    Furthermore, that finding cannot be called into question by the SRB’s assertion that, in May 2021, it published the fact sheet, which contained a range indicating the potential amounts of the final target level, and, on its website, the amount of the financial means available in the SRF. Regardless of whether the applicant was actually aware of those amounts, the latter were incapable, on their own, of enabling the applicant to understand that the two operations referred to in paragraph 269 above had actually been applied by the SRB, bearing in mind, moreover, that the mathematical formula provided for in recital 48 of the contested decision did not even mention them.

271    Similar inconsistencies also affect the way in which the coefficient of 1.35% was determined, despite the fact that it plays a crucial role in the mathematical formula mentioned in paragraph 255 above. That coefficient could be understood as meaning that it is based, amongst other parameters, on the forecasted growth in covered deposits over the remaining years of the initial period. However, as acknowledged by the SRB at the hearing, that coefficient was determined so as to be able to justify the result of the calculation of the amount of the annual target level, that is to say, after the SRB calculated that amount by following the four steps set out in paragraphs 257 to 260 above and, in particular, by dividing by three the amount obtained from the deduction of the available financial means in the SRF from the final target level. That approach is not at all apparent from the contested decision.

272    In addition, it must be recalled that, according to the fact sheet, the amount of the estimated final target level was in the range of EUR 70 billion to EUR 75 billion. However, that range is inconsistent with the range of the growth rate of covered deposits of between 4% and 7% set out in recital 41 of the contested decision. The SRB stated at the hearing that, for the purposes of determining the annual target level, it had taken into account a growth rate of covered deposits of 4% – the lowest rate in the second range – and that it had thus arrived at an estimated final target level of EUR 75 billion – the highest value in the first range. There appears to be some inconsistency between those two ranges. On the one hand, the range relating to the rate of evolution in covered deposits also includes values higher than the rate of 4%, the application of which would have resulted in an estimated amount of the final target level greater than those included within the range for that target level. On the other hand, it is impossible for the applicant to understand why the SRB included within the range related to that target level amounts lower than EUR 75 billion. To arrive at such amounts, a rate of below 4% would have to have been applied, but no such rate is included in the range relating to the growth rate of covered deposits. In those circumstances, the applicant was unable to determine how the SRB had used the range relating to the rate of evolution of such deposits to arrive at the calculation of the estimated final target level.

273    It follows that, as regards the determination of the annual target level, the method actually applied by the SRB, as explained at the hearing, does not correspond to that described in the contested decision, and therefore the real reasons in the light of which that target level was set could not be identified on the basis of the contested decision either by the institutions or by the Court.

274    In the light of the foregoing, the contested decision must be found to be vitiated by defective reasoning as regards the determination of the annual target level. Accordingly, it is appropriate to annul the contested decision on that ground.

C.      Conclusion

275    Following an examination by the Court of its own motion, it must be held that the contested decision is vitiated by defective reasoning as regards the determination of the annual target level. Since those defects are capable, in themselves, of justifying the annulment of that decision, the decision must be annulled in so far as it concerns the applicant.

…

On those grounds,

THE GENERAL COURT (Eighth Chamber, Extended Composition),

hereby:

1.      Annuls Decision SRB/ES/2021/22 of the Single Resolution Board (SRB) of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund, in so far as it concerns Max Heinr. Sutor OHG;

2.      Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns Max Heinr., until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of the present judgment, of a new decision of the SRB fixing the ex ante contribution to the Single Resolution Fund of that institution for the 2021 contribution period;

3.      Orders the SRB to bear its own costs and to pay those incurred by Max Heinr. Sutor OHG.

Delivered in open court in Luxembourg on 8 May 2024.

[Signatures]

*      Language of the case: German.

1      Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.