Judgment of the General Court (Eighth Chamber, Extended Composition) of 17 July 2024 (Extracts)

Data

Court: General Court

Case date: 17 juli 2024

Uitspraak

Provisional text

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

17 July 2024 (^*)

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

In Case T‑402/21,

UniCredit Bank AG, established in Munich (Germany), represented by F. Schäfer, H. Großerichter, F. Kruis and N. Bartmann, lawyers,

applicant,

Single Resolution Board (SRB), represented by J. Kerlin, C. Flynn and D. Ceran, acting as Agents, and G. Coppo, S. Reinart and K. Bongs, lawyers,

defendant,

supported by

European Parliament, represented by U. Rösslein, M. Menegatti and G. Bartram, acting as Agents,

and by

Council of the European Union, represented by J. Bauerschmidt, J. Haunold and A. Westerhof Löfflerová, 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 written part of the procedure,

further to the hearing on 2 March 2023,

gives the following

Judgment (¹)

1 By its action under Article 263 TFEU, the applicant, UniCredit Bank AG, seeks the 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 that decision concerns it.

…

III. Forms of order sought

19 The applicant claims that the Court should:

– annul the contested decision, including the annexes thereto, in so far as that decision concerns it;

– order the SRB to pay the costs.

20 The SRB contends that the Court should:

– dismiss the action as unfounded;

– order the applicant to pay the costs;

– in the alternative, if the contested decision is annulled, maintain the effects of the contested 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.

21 The European Parliament contends that the Court should:

– dismiss the action in so far as it is based on the plea of illegality in respect of Regulation No 806/2014 and Directive 2014/59;

– order the applicant to pay the costs.

22 The Council of the European Union contends that the Court should:

– dismiss the action as unfounded;

– order the applicant to pay the costs.

IV. Law

…

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

…

2. The second plea, alleging breach of essential procedural requirements, within the meaning of the second paragraph of Article 263 TFEU, and of the right to good administration, in that the contested decision lacks the adequate statement of reasons required by the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter

80 The second plea is divided into seven parts.

…

(b) The first part, relating to the exclusion of certain risk indicators

95 The applicant submits that the SRB failed to sufficiently explain why, for the purposes of calculating the ex ante contributions for the 2021 contribution period, it failed to apply the Net Stable Funding Ratio risk indicator (‘the NSFR indicator’), the ‘own funds and eligible liabilities held by the institution in excess of [minimum requirement for own funds and eligible liabilities]’ indicator (‘the MREL indicator’ and ‘the MREL’), or the ‘complexity’ and ‘resolvability’ risk sub-indicators referred to in point (a) of the first subparagraph of Article 6(5) of Delegated Regulation 2015/63.

96 The SRB disputes the applicant’s arguments.

97 It must be observed, first of all, that Article 20(1) of Delegated Regulation 2015/63 provides that ‘where the information required by a specific indicator as referred to in Annex II [to that delegated regulation] is not included in the applicable supervisory reporting requirement referred to in Article 14 [of that delegated regulation] for the reference year, that risk indicator shall not apply until that supervisory reporting requirement becomes applicable’.

98 In the present case, the SRB stated, in recitals 21 to 29 of the contested decision, that it had not applied the NSFR and MREL indicators or the ‘complexity’ and ‘resolvability’ sub-indicators because, when that decision was adopted, the data required for those indicators and sub-indicators was not available in a harmonised form for all the institutions.

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

100 Such a statement of reasons allows the applicant to understand the reasons why the SRB did not apply the risk indicators and sub-indicators concerned and thus satisfies the requirements laid down by the case-law cited in paragraphs 82 and 83 above.

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

102 First, the applicant’s argument that the SRB should have explained in the contested decision the reasons why it considered that it had discretion not to apply the NSFR and MREL indicators, as well as the ‘complexity’ and ‘resolvability’ sub-indicators, must be dismissed, because that argument is based on an incorrect premiss. It follows from the very wording of Article 20(1) of Delegated Regulation 2015/63 that the SRB has no discretion not to apply a risk indicator, since, once the conditions set out in that provision are satisfied, it is required not to take such an indicator into account.

103 Second, the applicant submits that the contested decision contains certain ‘circumstantial assertions’, regarding the failure to apply the risk indicators and sub-indicators concerned, the accuracy of which cannot be verified by the applicant or the EU Courts. However, the applicant fails to establish how the considerations set out in the contested decision, even if they are ‘circumstantial’, prevent it from understanding the reasons why the risk indicators and sub-indicators concerned were not applied, particularly since, as noted in paragraphs 98 and 99 above, the contested decision contains sufficient explanations in that regard.

104 Third, the applicant alleges, in essence, that the SRB failed to set out in the contested decision the reasons why it had not taken account of the risk indicators which were available in Germany for the purposes of calculating the percentage of its ex ante contribution determined on the national base, even though such explanations are necessary, since, according to Article 20(1) of Delegated Regulation 2015/63, read together with Article 14(3) and (6) thereof, a risk indicator must be taken into consideration where that indicator is subject to supervisory reporting requirements under national law.

105 In that regard, it is apparent from the case-law cited in paragraph 83 above that the question whether the 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.

106 As regards the application of the NSFR indicator, the SRB explained in recital 23 of the contested decision, read together with point 31 of Annex III to that decision, that ‘[it] [had] been unable to identify proxies at national level’, since it had deemed the supervisory reporting requirements in respect of that indicator to be inadequate. Similarly, it is apparent, in essence, from recital 25 of that decision, read together with points 32 and 33 of Annex III to that decision, that the SRB did not have data at national level enabling it to apply the MREL indicator, due to the gradual implementation of the MREL-related requirements by the NRAs.

107 Under those conditions, the SRB provided adequate reasoning explaining that the data required for the application of the NSFR and MREL indicators were not available at national level.

108 Next, point 32 of Annex III to the contested decision states that the task of determining the ‘complexity’ and ‘resolvability’ risk sub-indicators is closely linked to the resolution planning exercise for the institutions, it being understood therefore that those sub-indicators are linked to the drawing up of resolution plans.

109 However, as a prudent economic operator, the applicant must have been aware that the NRAs had not established such plans in relation to all the institutions liable to the ex ante contributions, as stated by the SRB in its defence and in its rejoinder, without being contradicted, and that, consequently, those plans had not been completed for all the institutions which have their registered office in Germany. The applicant was therefore in a position to understand that, because of the lack of resolution plans drawn up for all the German institutions, the SRB did not have adequate data at national level for the purposes of applying the ‘complexity’ and ‘resolvability’ sub-indicators.

110 Lastly, the applicant’s argument that the SRB should have explained why it had not adjusted to a comparable level the data which had not been collected in a uniform manner throughout the European Union must be rejected, as it is based on an incorrect premiss. It does not follow from Article 20(1) of Delegated Regulation 2015/63 that the SRB is required to adjust, in any way, data which has not been collected uniformly.

111 In those circumstances, the first part of the second plea must be rejected.

112 The applicant submits that the reasons given by the SRB do not make it possible to understand why it set the annual target level at one eighth of 1.35% of the covered deposits of all of the institutions in 2020. In particular, the SRB failed to explain how it had examined the economic model established by the Commission’s Joint Research Centre (JRC) in order to project the growth rate of covered deposits and total deposits in the banking union during the initial period. Similarly, the SRB provided no explanation as to the use of the simulation model to set different scenarios for covered deposits growth and of the final target level.

113 The SRB contends that, in recitals 35 to 48 of the contested decision and in points 46 to 84 of Annex III thereto, the steps taken to determine the annual target level and the factors which were taken into account for that purpose are described clearly and precisely. Furthermore, it is apparent from recital 40 of that decision that the JRC’s econometric model – like the SRB’s assessment – was based on historical data on total deposits and covered deposits, and that there was a confirmed trend towards sustained growth in the covered deposits of all institutions. Moreover, the simulation model used by the SRB covered such a wide range that it was obvious that that model was just one stage in the decision-making process.

114 As a preliminary point, it must be observed 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 the territories of all of the participating Member States.

115 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 114 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.

116 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.

117 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 participating Member States.

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

119 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.

120 The SRB set out the approach followed to determine the coefficient in recitals 38 to 47 of the contested decision.

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

122 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%.

123 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 the 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.

124 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.

125 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’.

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

127 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 participating Member States, 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.

128 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 value to be reached on 31 December 2023, namely approximately EUR 75 billion.

129 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.

130 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 118 above, that is to say, approximately EUR 11.287 billion.

131 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 127 to 130 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 titled ‘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.

132 In order to examine whether the SRB complied with its duty to state reasons as regards the determination of the annual target level, it must be recalled first of all 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). Accordingly, the Court may, or even must, also take into account failures to state reasons other than those upon which the applicant relies, in particular where those failures come to light in the course of the procedure.

133 To that end, the parties’ arguments were heard, in the course of the oral part of the procedure, concerning any failures to state reasons which would vitiate the contested decision as regards the determination of the annual target value. In particular, in response to a number of questions expressly put in that regard, the SRB described, step by step, the methodology which it had actually adopted in order to determine the annual target level for the 2021 contribution period, as set out in paragraphs 127 to 130 above.

134 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).

135 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).

136 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 82 and 83 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.

137 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).

138 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 paragraph 15 above, 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.

139 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.

140 However, that is not the case here.

141 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 127 to 130 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.

142 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 141 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.

143 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 142 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 127 to 130 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 clear from the contested decision.

144 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.

145 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.

146 In the light of the foregoing, the contested decision must be held to be vitiated by lack of reasoning as regards the determination of the annual target level.

147 Accordingly, the second part of the second plea must be upheld. In view of the legal and economic implications of the present case, it is however in the interests of the proper administration of justice for the other pleas in law raised in the action to be examined.

…

4. The sixth plea, alleging infringement of Articles 6, 7 and 20 of Delegated Regulation 2015/63

250 The applicant claims that the contested decision infringes Articles 6 and 7 and Article 20(1) of Delegated Regulation 2015/63, in so far as the SRB did not take into account, for the purposes of calculating the adjusting multiplier, the NSFR and MREL indicators and the ‘complexity’ and ‘resolvability’ risk sub-indicators. In particular, Articles 6 and 7 thereof do not confer on the SRB the discretion to disregard certain risk indicators. Furthermore, Article 20(1) of that delegated regulation, read together with Article 14 thereof, cannot justify a failure to take account of those risk indicators. Article 20(1) of Delegated Regulation 2015/63 applies only to the information set out in Annex II to that delegated regulation. However, that annex makes no reference, at the very least, either to the MREL indicator or to the ‘complexity’ and ‘resolvability’ risk sub-indicators.

251 The SRB disputes that line of argument.

252 Under Article 6(2)(a), (3)(a) and (5)(a) of Delegated Regulation 2015/63, the SRB must, as a rule, take account of the MREL and NSFR indicators and the ‘complexity’ and ‘resolvability’ risk sub-indicators in order to assess the risk profile of the institutions concerned.

253 However, pursuant to Article 20(1) of Delegated Regulation 2015/63, entitled ‘Transitional provisions’, a risk indicator is not to apply where the information required by that specific indicator, referred to in Article II of that delegated regulation, is not included in the supervisory reporting requirements referred to in Article 14 of that delegated regulation, namely the supervisory reporting requirements established by Commission Implementing Regulation (EU) No 680/2014 of 16 April 2014 laying down implementing technical standards with regard to supervisory reporting of institutions according to Regulation (EU) No 575/2013 of the European Parliament and of the Council (OJ 2014 L 191, p. 1), or, as the case may be, by national law.

254 Article 20(1) of Delegated Regulation 2015/63, the legality of which is not disputed in this case, thus makes the possibility of not applying a risk indicator subject to the twofold condition, in the first place, that the information required by such an indicator is not included in the supervisory reporting requirements referred to in Article 14 of that delegated regulation and, in the second place, that that indicator is referred to in Annex II to that delegated regulation, which is entitled ‘Data to be submitted to the resolution authorities’ and contains fifteen categories of data.

255 As regards the first condition, it must be observed that, in order to determine whether, in accordance with Article 20(1) of Delegated Regulation 2015/63, the information required by a specific risk indicator is included in the supervisory reporting requirements, it is for the SRB to ascertain whether the institutions were required to report that information for supervisory purposes to the competent authority for the reference year in question, in accordance with Implementing Regulation No 680/2014 or national law. According to Article 4(1) of Delegated Regulation 2015/63 read together with Article 14(1) to (4) thereof, that reference year is the year to which the approved annual financial statements available before 31 December of the year preceding the contribution period relate. It follows that, in the present case, the reference year is the year to which the approved annual financial statements available before 31 December 2020 (‘the relevant reference year’) relate. As stated by the SRB, without being challenged by the applicant, that year is 2019.

256 As regards the second condition mentioned in paragraph 254 above, it must be observed that Article 20(1) of Delegated Regulation 2015/63 is intended to apply, inter alia, where the data referred to in Annex II to that delegated regulation are in themselves risk indicators.

257 However, contrary to what the applicant submits, Article 20(1) of Delegated Regulation 2015/63 also applies where Annex II to that delegated regulation refers to data which, while not in themselves constituting risk indicators, are decisive for the calculation of such indicators which are not mentioned in that annex. Accordingly, a risk indicator need not be applied where data essential for the calculation of that indicator are included in that annex.

258 In that regard, it should be borne in mind that, in interpreting a provision of European Union law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 19 July 2012, ebookers.com Deutschland, C‑112/11, EU:C:2012:487, paragraph 12). Moreover, it is necessary to consider the effectiveness of that provision (see judgment of 13 December 2012, BLV Wohn- und Gewerbebau, C‑395/11, EU:C:2012:799, paragraph 25 and the case-law cited).

259 As regards the context and the objectives pursued by Article 20(1) of Delegated Regulation 2015/63, that provision takes into account the fact that the process of establishing the supervisory requirements and the corresponding reporting requirements is gradual and takes place over time. As is apparent, in particular, from recital 6 of Directive 2014/59, Delegated Regulation 2015/63 was adopted at a time when those requirements had not yet been definitively adopted or were still subject to adjustments. In that regard, the applicant has not genuinely contested the SRB’s claim that the competent authorities are gradually defining some of those requirements which, in turn, influence the data which have to be available in order to calculate the risk indicators laid down in Delegated Regulation 2015/63. It follows that those data necessary for the calculation of some of those risk indicators could not be available for all the institutions concerned or, at the very least, for all of the institutions which have their registered office in a Member State, for at least part of the initial period, it being recalled that those data could not be reported by way of supervisory information under EU law or, as the case may be, under national law.

260 In that context, the purpose of Article 20(1) of Delegated Regulation 2015/63 is to prevent disproportionate or discriminatory charges from being imposed, as the case may be, on institutions when calculating the ex ante contributions specifically because of that gradual implementation of the supervisory requirements and the related reporting requirements. That calculation involves a comparative exercise. In that regard, the SRB has explained, in essence, without being contradicted, that, if data essential for the calculation of certain risk indicators were not reported by way of supervisory information by all of the institutions or, at the very least, by all of the institutions which have their registered office in a Member State, the SRB would be obliged to take into account data relating to such indicators which are not comparable.

261 Such a risk exists not only where the data in question are in themselves risk indicators, but also where those data, while not in themselves constituting risk indicators, are nevertheless necessary for the calculation of those indicators.

262 In those circumstances, Article 20(1) of Delegated Regulation 2015/63 must be interpreted as meaning that it applies not only where the data referred to in Annex II to that delegated regulation are in themselves risk indicators, but also where the data mentioned in that annex are essential for the calculation of the risk indicators.

263 It is in the light of those considerations that it is necessary to examine whether, when calculating the ex ante contributions for the 2021 contribution period, the SRB was entitled to refrain from applying two risk indicators, namely the NSFR and MREL indicators, and two risk sub-indicators, namely the ‘complexity’ and ‘resolvability’ sub-indicators, without infringing Articles 6 and 7 and Article 20(1) of Delegated Regulation 2015/63.

264 As regards the NSFR indicator, in the first place, it is clear from Article 17 of Commission Implementing Regulation (EU) 2021/451 of 17 December 2020 laying down implementing technical standards for the application of Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to supervisory reporting of institutions and repealing Implementing Regulation (EU) No 680/2014 (OJ 2021 L 97, p. 1), read together with the second paragraph of Article 23 thereof, that the requirement for institutions to report NSFR information for supervisory purposes, on a harmonised basis, was applicable only from 28 June 2021, that is to say, after the relevant reference year.

265 In addition, without it being necessary to rule on whether the possible existence of an obligation to report NSFR information by way of supervisory information under national law means that the SRB was required to take it into account when determining that indicator, at least when calculating the ex ante contribution on the national base, the SRB explained in its defence and its rejoinder as well as at the hearing, without being contradicted, that, in any event, there was no such obligation under the law of the Member State in which the applicant was established (Germany) in respect of the relevant reference year. In those circumstances, there is nothing in the documents before the Court to show that, for the relevant reference year, NSFR data were included in the supervisory reporting requirements under German law.

266 The fact that the applicant has reported those data in Germany is irrelevant in that regard, since it has not been established that it did so on the basis of supervisory reporting requirements, in accordance with Regulation No 680/2014 or with German law.

267 In the second place, the NSFR indicator is included in the data expressly listed in Annex II to Delegated Regulation 2015/63.

268 In those circumstances, the SRB did not infringe Articles 6, 7 and 20 of Delegated Regulation 2015/63 by not taking account of the NSFR indicator in the calculation of the ex ante contributions for the 2021 contribution period.

269 As regards the MREL indicator, no provision of Implementing Regulation No 680/2014 required the institutions to provide, for the relevant reference year, information on their eligible liabilities to the competent authority by way of supervisory information. Such an obligation was introduced only from 28 June 2021, as is apparent from Title I of Commission Implementing Regulation (EU) 2021/763 of 23 April 2021 laying down implementing technical standards for the application of Regulation (EU) No 575/2013 of the European Parliament and of the Council and Directive 2014/59/EU of the European Parliament and of the Council with regard to the supervisory reporting and public disclosure of the minimum requirement for own funds and eligible liabilities (OJ 2021 L 168, p. 1), read together with the second paragraph of Article 17 thereof.

270 Article 45(1) of Directive 2014/59, relied on by the applicant, does not call that observation into question. That provision requires Member States to ensure that institutions meet, at all times, the requirements for own funds and eligible liabilities where required by that article or by other provisions of that directive. However, that provision does not contain any obligation to report eligible liabilities by way of supervisory information during the relevant reference year.

271 In addition, without it being necessary to rule on whether the possible existence of an obligation to report eligible liabilities by way of supervisory information under national law means that the SRB was required to take them into account when determining the MREL indicator, at least when calculating the ex ante contribution on the national base, the SRB explained in its defence and its rejoinder as well as at the hearing, without being contradicted by the applicant, that, in any event, there was no such obligation under German law in respect of the relevant reference year. In those circumstances, there is nothing in the documents before the Court to show that, under German law, MREL-related information was subject to supervisory reporting requirements during the relevant reference year.

272 The fact that the applicant has been reporting MREL-related information in Germany since 2017 does not provide proof to the contrary, since, as is apparent from paragraph 271 above, it has not been established that that information was reported by way of supervisory information under national law.

273 Furthermore, although the MREL indicator is not mentioned as such in Annex II to Delegated Regulation 2015/63, that annex nevertheless refers to ‘eligible liabilities’ among the data to be submitted to the resolution authorities. Moreover, those liabilities constitute data which are decisive for the calculation of that risk indicator. In accordance with Article 6(2)(a) of Regulation 2015/63 and in Annex I thereto, under the heading ‘Step 1’, that indicator is based on data such as, inter alia, own funds, eligible liabilities and the MREL, it being understood that, for the purposes of calculating that indicator, the SRB must determine the amount by which own funds and eligible liabilities exceed the MREL.

274 In those circumstances, the SRB was entitled to refrain from applying the MREL indicator without infringing Articles 6, 7 and 20 of Delegated Regulation 2015/63.

275 With regard to the ‘complexity’ and ‘resolvability’ risk sub-indicators, it follows from Article 6(6)(a)(iv) of Delegated Regulation 2015/63 that, when determining the ‘complexity’ sub-indicator, the SRB is required to take into account the extent to which, in accordance with Chapter II of Title II of Directive 2014/59, the business model and organisational structure of the institution concerned are deemed to be complex. Similarly, according to Article 6(6)(b)(ii) of that same delegated regulation, when determining the ‘resolvability’ sub-indicator, the SRB must take into account the extent to which, in accordance with Chapter II of Title II of Directive 2014/59, that institution can be resolved promptly and without legal impediments.

276 The SRB must thus determine the ‘complexity’ and ‘resolvability’ sub-indicators taking into account the requirements arising from Chapter II of Title II of that directive, entitled ‘Resolvability’, which comprises Articles 15 to 18.

277 In that regard, under Article 15(3) of Directive 2014/59, the resolvability assessment of an institution is to be made by the resolution authority at the same time as and for the purposes of the drawing up and updating of the resolution plan, in accordance with Article 10 thereof.

278 Similarly, as the SRB explained at the hearing, without being contradicted, in order to assess the resolvability of an institution, it is necessary to take into account its complexity, given that the more complex the structure of such an institution, the greater the impact on its resolvability. In those circumstances and having regard to the reference made in Article 6(6)(a)(iv) of Delegated Regulation 2015/63 to Articles 15 to 18 of Directive 2014/59 (therefore also to Article 15(3) of that directive), the complexity assessment is also to be made when drawing up the resolution plan.

279 It follows that the drawing up of the resolution plan constitutes a prerequisite for the determination by the SRB of the ‘complexity’ and ‘resolvability’ sub-indicators.

280 Furthermore, according to Article 15(2) of Directive 2014/59, for the purposes of drawing up an institution’s resolution plan, the resolution authority is to take into account, as a minimum, the matters provided for in Section C of the annex to that directive. The matters it must take into consideration, pursuant to point 17 of Section C of that annex, include the amount and type of bail-inable liabilities, those liabilities being defined in point (71) of Article 2(1) of Directive 2014/59 as amended by Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019 (OJ 2019 L 150, p. 296).

281 As is apparent from point (17) of Article 3 of Delegated Regulation 2015/63 and point (71) of Article 2(1) of Directive 2014/59, those liabilities correspond to ‘eligible liabilities’ within the meaning of that delegated regulation.

282 It follows that eligible liabilities constitute a necessary piece of data to enable the SRB to set the ‘complexity’ and ‘resolvability’ risk sub-indicators.

283 In that regard, first, it is apparent from paragraphs 269 to 271 above that the institutions were not required, under Implementing Regulation No 680/2014, to report eligible liabilities for supervisory purposes to the competent authority for the relevant reference year. Second, without it being necessary to rule on whether the possible existence of such an obligation to report eligible liabilities means that the SRB was required to take them into account when determining the ‘complexity’ and ‘resolvability’ sub-indicators, at least as regards calculating the ex ante contribution on the national base, there is nothing before the Court to show that such an obligation existed under German law.

284 Consequently, the first condition laid down in Article 20(1) of Delegated Regulation 2015/63 is satisfied as regards the ‘complexity’ and ‘resolvability’ sub-indicators.

285 As regards the second condition laid down in Article 20(1) of Delegated Regulation 2015/63, although the ‘complexity’ and ‘resolvability’ sub-indicators are not included, as such, in Annex II to Delegated Regulation 2015/63, eligible liabilities, which are a necessary piece of data for the determination of those sub-indicators, are expressly referred to therein.

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

287 That conclusion is not invalidated by the applicant’s arguments.

288 First, as regards the applicant’s argument that the SRB should have obtained the information required for the adoption of a decision setting the ex ante contributions other than by requesting the information reported for supervisory purposes by each institution, it is sufficient to note that there is no such obligation under any provision of the applicable rules.

289 On that point, the applicant cannot, in particular, claim that the SRB was required to apply the NSFR indicator by using national data from the NRAs, since, as is clear from paragraph 265 above, there is nothing in the documents before the Court to show that NSFR-related data had to be reported by way of supervisory information under German law.

290 Second, the applicant’s argument based on paragraph 137 of the judgment of 15 July 2021 in Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601) must be dismissed, since neither that paragraph nor that judgment ruled on the applicability of Article 20(1) of Delegated Regulation 2015/63.

291 Third, the applicant submits that, in any event, the SRB’s approach to the application of Article 20(1) of Delegated Regulation 2015/63 is wrong as regards the part of the ex ante contribution calculated on the national base, since it is common ground that the NSFR and MREL indicators and the ‘complexity’ and ‘resolvability’ sub-indicators were available for the German institutions. It claims that the SRB should therefore have taken them into account when calculating the contribution determined on the national base. That is a fortiori the case because the non-application of those indicators and sub-indicators cannot be justified by the principle of equal treatment since, in the context of Directive 2014/59, only institutions in the same Member State are comparable. In those circumstances, it would not be contrary to that principle if the information relating to those indicators available in each of the Member States was not identical amongst those Member States.

292 In that regard, without it being necessary to rule on whether the possible existence of an obligation to report data relating to the NSFR and MREL indicators and to the ‘complexity’ and ‘resolvability’ sub-indicators under national law means that the SRB was required to take those data into account, at least when calculating the ex ante contribution on the national base, it must be observed that, as is apparent from paragraphs 265, 271 and 283 above, it has not been established that such an obligation existed in Germany for the relevant reference year. In those circumstances, it does not appear from the documents before the Court that there was a legal basis permitting or requiring the SRB to take account of those data in respect of the national base alone.

293 Fourth, the applicant submits that it was in fact possible, and therefore obligatory, to take into consideration all the risk indicators and sub-indicators, since the SRB had to ensure that it organised appropriate data collection, or subsequently adapted any data supplied in a non-uniform manner in order to confer on those data the required degree of uniformity. In addition, it claims that the SRB could have completed the missing data with an estimate or expert opinion.

294 In that regard, it is sufficient to note that the applicable legislation does not require the SRB to complete the missing data as part of the supervisory reporting requirements or to adjust, in any way, data collected in a non-uniform manner.

295 In the light of the foregoing, the sixth plea must be dismissed.

…

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 UniCredit Bank AG;

2. Maintains the effects of Decision SRB/ES/2021/22, in so far as it concerns UniCredit Bank AG, 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 UniCredit Bank;

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

Kornezov

De Baere

Petrlík

Kecsmár

Kingston

Delivered in open court in Luxembourg on 17 July 2024.

[Signatures]