Opinion of Advocate General Spielmann delivered on 8 September 2026.###

Provisional text

OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 8 September 2026 (1)

Cases C‑454/24 P and C‑705/24 P

Single Resolution Board

v

Dexia SA (C‑454/24 P)

and

Single Resolution Board

v

BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG (C‑705/24 P)

( Appeal – Economic and monetary union – Banking union – Single resolution mechanism of credit institutions and certain investment firms – Single Resolution Fund – Decisions on the calculation of the ex ante contributions for the 2022 and 2023 contribution periods – Article 69(1) of Regulation (EU) No 806/2014 – Obligation to reach the target level – Article 70(2) of Regulation No 806/2014 – Cap of 12.5% of the target level – Second paragraph of Article 264 TFEU – Limitations of the temporal effects of an annulment )

Table of contents

I. Introduction

II. Legal framework

III. Preliminary observations

IV. Background to the dispute

V. The 2022 and 2023 SRB decisions

VI. Procedures before the General Court, the judgment under appeal and the order under appeal

VII. Procedures before the Court and the forms of order sought

VIII. The appeals

A. Arguments of the SRB and the EU institutions

B. Arguments of the credit institutions

C. Assessment

1. Literal, contextual, historical and teleological interpretation of Article 69(1) and Article 70(2) of the SRM Regulation

(a) The wording of Article 69(1) and Article 70(2) of the SRM Regulation

(b) Historical interpretation and context of Article 69(1) and Article 70(2) of the SRM Regulation

(c) The objectives pursued by the SRM Regulation

(d) Conclusions regarding the relationship between Article 69(1) and Article 70(2) of the SRM Regulation

2. The specific circumstances which arose during the 2022 and 2023 contribution periods

IX. Maintaining the temporal effects

A. Arguments of the parties

B. Assessment

X. Costs

XI. Conclusion

I.      Introduction

1.        This Opinion concerns appeals brought by the Single Resolution Board (SRB) seeking to have set aside the judgment of the General Court of the European Union of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, ‘the judgment under appeal’, EU:T:2024:216), and the order of the General Court of 6 August 2024, BAWAG PSK v SRB (T‑410/23, ‘the order under appeal’, EU:T:2024:534).

2.        By the judgment under appeal, the General Court annulled Decision SRB/ES/2022/18 of the SRB of 11 April 2022 on the calculation of the 2022 ex ante contributions to the Single Resolution Fund (SRF) (‘the 2022 SRB decision’), in so far as it concerns Dexia SA, and maintained the effects of that decision until the measures necessary to implement that judgment are taken by the SRB, which must occur within a reasonable period that cannot exceed six months from the day on which that judgment became final. By the order under appeal, the General Court did the same with regard to Decision SRB/ES/2023/23 of the SRB of 2 May 2023 on the calculation of the 2023 ex ante contributions to the SRF (‘the 2023 SRB Decision’), in so far as it concerns BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG (‘BAWAG’).

3.        The present cases call on the Court to determine, in the first place, whether the General Court erred in law in the interpretation of two provisions of Regulation (EU) No 806/2014 (2) establishing the amount of the contributions due by the credit institutions authorised within the banking union and, in the second place, whether the General Court could legitimately suspend the temporal effects of the judgment under appeal and of the order under appeal.

II.    Legal framework

4.        Point 35 of Article 3(1) of the SRM Regulation defines the target level as ‘the amount of available financial means to be reached under Article 69(1)’ of that regulation.

5.        Under Article 69 of that regulation, entitled ‘Target level’:

‘1.      By the end of an initial period of eight years from 1 January 2016 or, otherwise, from the date on which this paragraph is applicable by virtue of Article 99(6), the available financial means of the [SRF] shall reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States.

2.      During the initial period referred to in paragraph 1, contributions to the [SRF] calculated in accordance with Article 70, and raised in accordance with Article 67(4), shall be spread out in time as evenly as possible until the target level is reached, but with due account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of contributing institutions.

3.      The Board shall extend the initial period referred to in paragraph 1 for a maximum of four years in the event that the [SRF] has made cumulative disbursements in excess of 0.5% of the total amount of covered deposits referred to in paragraph 1 and where the criteria of the delegated act referred in paragraph 5(b) are met.

4.      If, after the initial period referred to in paragraph 1, the available financial means diminish below the target level specified in that paragraph, the regular contributions calculated in accordance with Article 70 shall be raised until the target level is reached. After the target level has been reached for the first time and where the available financial means have subsequently been reduced to less than two-thirds of the target level, those contributions shall be set at a level allowing for reaching the target level within six years.

The regular contribution shall take due account of the phase of the business cycle and the impact pro-cyclical contributions may have when setting annual contributions in the context of this paragraph.

5.      The [European] Commission shall be empowered to adopt delegated acts in accordance with Article 93 to specify the following:

(a)      criteria for the spreading out in time of the contributions to the [SRF] calculated under paragraph 2;

(b)      criteria for determining the number of years by which the initial period referred to in paragraph 1 can be extended under paragraph 3;

(c)      criteria for establishing the annual contributions provided for in paragraph 4.’

6.        Article 70 of that regulation, entitled ‘Ex-ante contributions’, provides, in paragraph 2 thereof:

‘Each year, the Board shall, after consulting the [European Central Bank (ECB)] or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level.

…

In any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States, calculated under points (a) and (b), shall not exceed annually the 12.5% of the target level.’

III. Preliminary observations

7.        The 2008 financial crisis revealed that the European Union lacked tools providing an effective means of preventing the insolvency of credit institutions and investment firms (‘institutions’) or, at the very least, of minimising its negative repercussions. To avoid Member States being compelled in the future to use taxpayers’ money to save unsound or failing institutions, the EU legislature adopted a number of instruments essentially intended to ensure that the failure of an institution does not affect the stability of the financial markets of the different Member States. (3)

8.        Those tools include the BRRD, which seeks to harmonise the laws and regulations of all Member States regarding the recovery and the resolution of institutions authorised in the territory of the European Union. It requires, in particular, each Member State to designate one or more authorities empowered to apply the resolution tools identified in that directive, including the setting up of national financing arrangements in the form of a fund controlled by their national resolution authority. (4) To that end, at the end of a ten-year period running from 1 January 2015 to 31 December 2024, the available financial means under those arrangements, acquired through contributions collected annually from all the institutions authorised in the territory of each Member State, were to reach at least 1% of the amount of covered deposits of all those institutions. (5) Furthermore, Member States were permitted to set a target level in excess of that amount. (6) Under the BRRD, the annual contribution of each of those institutions is to be calculated pro rata to the amount of its liabilities (excluding own funds) less covered deposits (‘net liabilities’), with respect to the aggregate liabilities (excluding own funds) less covered deposits (‘aggregate net liabilities’) of all the institutions authorised in the territory of the Member State. (7) That annual contribution was to be adjusted in proportion to the risk profile of each institution concerned, which was determined taking into account certain specific risk indicators, applying the methodology set out in Delegated Regulation 2015/63. (8)

9.        To push further ahead with the integration of the resolution framework, the SRM Regulation, the proposed text (9) of which was modelled to a great extent on the system as introduced by the BRRD, established uniform rules and procedures for the resolution of the institutions in the euro area Member States and in those Member States whose currency is not the euro but which have established a close cooperation with the ECB (‘the participating Member States’). (10) To that end, that regulation created a single resolution mechanism, the rules and procedures of which the SRB is responsible for applying, (11) and provides inter alia for the establishment of an SRF to ensure the effective application of the resolution tools. (12) To that effect, by the end of a period of eight years from 1 January 2016 to 31 December 2023 (‘the initial period’), the available financial means of the SRF were to reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States (‘the target level’). (13) Under that regulation, those financial means come from individual contributions collected annually from each institution, which are calculated pro rata to the amount of its net liabilities, with respect to the aggregate net liabilities of all of the institutions authorised in the territories of all of the participating Member States. (14) Furthermore, the calculation of those contributions is based on a flat contribution and on a risk-adjusted contribution of each institution concerned, in relation to which reference is made to the risk indicators set out in the BRRD (15) as well as in Delegated Regulation 2015/63 as the tool specifying the notion of ‘adjusting contributions in proportion to the risk profile’. (16) The SRM Regulation also provides, first, that the contributions raised by the SRF during the initial period are to be spread out in time as evenly as possible until the target level is reached, but with due account of the phase of the business cycle and the impact that pro-cyclical contributions may have on the financial position of contributing institutions. (17) The criteria for the spreading out in time of the contributions are set out in Delegated Regulation (EU) 2017/747. (18) Second, each year, the SRB is to calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States does not exceed 12.5% of the target level (‘the 12.5% cap’). (19)

IV.    Background to the dispute

10.      The background to the dispute is set out in paragraphs 2 to 4 of the judgment under appeal and the order under appeal. It may be summarised as follows.

11.      Dexia and BAWAG are, respectively, French and Austrian credit institutions. By the 2022 and 2023 SRB decisions, the SRB set, having regard to Article 70(2) of the SRM Regulation, the ex ante contributions to the SRF (‘the ex ante contributions’) for 2022 (‘the 2022 contribution period’) and 2023 (‘the 2023 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation, including Dexia and BAWAG.

12.      By an assessment notice of 25 April 2022, the Autorité de contrôle prudentiel et de résolution (Authority for Prudential Supervision and Resolution, France), in its capacity as the national resolution authority within the meaning of point 3 of Article 3(1) of the SRM Regulation, ordered Dexia to pay its ex ante contributions for the 2022 contribution period, as set by the SRB. The competent national resolution authority in Austria did the same with regard to BAWAG for the 2023 contribution period.

V.      The 2022 and 2023 SRB decisions

13.      In its 2022 decision, the SRB set out the process for determining the ex ante contributions for the 2022 contribution period. After noting the steady upward trend in covered deposits during the initial period, a trend amplified by a series of significant one-off events from 2019 onwards, in particular the COVID-19 pandemic and the war between Ukraine and Russia, the SRB set the target level of the SRF to be reached by the end of the initial period at EUR 79.98 billion (20) (‘the final target level estimated in 2022’). In view of the available financial means of approximately EUR 52 billion, and in order to reach the target level of at least 1% of the amount of the covered deposits of all the institutions authorised in all of the participating Member States over the remaining years before the end of the initial period, the SRB therefore concluded that it had to collect EUR 28 billion during the 2022 and 2023 cycles. (21) Since the 2022 cycle was the penultimate cycle of the initial period, the SRB took the view that it had a limited ability to spread out in time the projected gap of EUR 28 billion between the financial means currently available in the SRF and the final target level estimated in 2022. Accordingly, it set the amount of the total contributions to the SRF for the 2022 contribution period at approximately EUR 14 billion. (22)

14.      In its 2023 decision, the SRB set the target level of the SRF to be reached by the end of the initial period at EUR 77.6 billion (23) (‘the final target level estimated in 2023’). In view of the available financial means of approximately EUR 65.9 billion, it therefore concluded that, in order to reach that final target level estimated in 2023, it had to collect approximately EUR 11.7 billion (24) during the 2023 contribution period. (25)

VI.    Procedures before the General Court, the judgment under appeal and the order under appeal

15.      By applications lodged at the Registry of the General Court on 5 June 2022 and 18 July 2023 respectively, Dexia and BAWAG brought an action claiming that the General Court should, on the basis of the fourth paragraph of Article 263 TFEU, annul the 2022 and 2023 SRB decisions in so far as they concern them. In support of its action, Dexia raised five pleas in law and BAWAG, for its part, raised eight.

16.      By the judgment under appeal, the General Court upheld the action brought by Dexia and annulled the 2022 SRB decision in that it infringed Article 70(2) of the SRM Regulation, on the ground that the amount of the ex ante contributions for the 2022 contribution period exceeded 12.5% of the final target level estimated in 2022.

17.      In that regard, the General Court stated that it follows from the wording of Article 69(2) and of the first and fourth subparagraphs of Article 70(2) of that regulation, as well as from the origin of that regulation, that the 12.5% cap of the target level applied each year during the initial period. (26)

18.      According to the General Court, pursuant to Articles 69 and 70 of the SRM Regulation, the calculation of ex ante contributions is an annual exercise based on the definition of a final target level that must be reached at the end of the initial period, then an annual target level to be apportioned between the institutions. Since the final target level could not be known with certainty until the end of the initial period, it is the forecast final target level, that is to say, the level based on as precise an estimate as possible of the final target level in the light of the data available at the time of that estimate, which is decisive for the application of the 12.5% cap. (27)

19.      Since the 12.5% cap is reiterated twice in the first and fourth subparagraphs of Article 70(2) of the SRM Regulation, which is worded clearly and precisely in mandatory terms, it cannot be argued that it can be disregarded or interpreted flexibly, with the result that it was open to the SRB to depart from it with the objective of achieving the final target level. (28) The General Court added that the prospective nature of the SRB’s estimate of the final target level, which must reach ‘at least’ 1% of covered deposits by the end of the initial period, means estimating with sufficient care the evolution of the amount of covered deposits throughout the initial period in order to ensure that the final target level is reached, whilst complying with the 12.5% cap. (29)

20.      Therefore, when the SRB calculates the ex ante contributions during a given contribution period, it must ensure, in accordance with the first and fourth subparagraphs of Article 70(2) of the SRM Regulation, that the amount of the ex ante contributions due by all of the institutions authorised in the territories of all of the participating Member States does not exceed 12.5% of the forecast final target level. (30) It failed to do so in the present case. (31)

21.      Furthermore, the General Court granted the SRB’s request that the effects of the 2022 SRB decision be maintained, in so far as that decision concerns Dexia, until the measures necessary to implement its judgment have been taken, which must occur within a reasonable period that cannot exceed six months from the day on which that judgment became final. (32)

22.      By the order under appeal, the General Court upheld BAWAG’s action, finding that, in the light of its decision in the judgment under appeal, the action was manifestly well founded, and annulled the 2023 SRB decision in that it infringed Article 70(2) of the SRM Regulation, on the ground that the amount of the ex ante contributions for the 2023 contribution period exceeded 12.5% of the final target level estimated in 2023. (33) It also granted the SRB’s request that the effects of the 2023 SRB decision be maintained, in so far as that decision concerns BAWAG, until the measures necessary to implement that order have been taken, which must occur within a reasonable period that cannot exceed six months from the day on which that order became final. (34)

VII. Procedures before the Court and the forms of order sought

23.      By its appeals brought before the Court, the SRB, supported in the form of order sought by it by the European Parliament and the Council of the European Union, interveners at first instance, and by the Commission, intervener in the appeal in Case C‑454/24 P, claims that the Court should:

–        set aside the judgment under appeal and the order under appeal;

–        dismiss the actions or, in the alternative, refer the cases back to the General Court;

–        order Dexia and BAWAG to pay the costs;

–        in the further alternative, in Case C‑454/24 P, maintain the effects of the 2022 SRB decision for a period of six months from the date on which the judgment of the Court becomes final and, in Case C‑705/24 P, maintain the effects of the 2023 SRB decision for a period of 30 months from the date on which the judgment of the Court becomes final or, as the case may be, the judgment of the Court in Cases C‑536/24 P and C‑537/24 P, if judgment is given in those cases subsequently.

24.      Dexia, supported in the form of order sought by it by the Österreichischer Sparkassenverband, the Fédération bancaire française and the Bundesverband deutscher Banken eV, interveners in the appeal, and BAWAG, supported by the Bundesverband deutscher Banken, which was granted leave to intervene at the hearing by order of the President of the Court of Justice of 26 November 2025, contend that the appeal should be dismissed and the SRB ordered to pay the costs.

25.      The parties were heard in oral argument at the joint hearing in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P, C‑671/24 P and C‑705/24 P of 17 March 2026.

VIII. The appeals

A.      Arguments of the SRB and the EU institutions

26.      The SRB, supported by the Council, relies on three grounds of appeal, alleging, in essence, that the General Court, in paragraphs 38, 46 to 54, 57 to 59 and 65 of the judgment under appeal, which served as the basis of the order under appeal, made a number of errors of law in taking the view that the 12.5% cap had to be applied in all circumstances throughout the initial period, to the detriment of the objective of reaching the target level, and in requiring the SRB to overestimate that target level intentionally and significantly. The General Court’s interpretation of the relationship between Article 69(1) and the first and fourth subparagraphs of Article 70(2) of the SRM Regulation is at odds with the wording, the context and the objective of those provisions, and contrary to the principles of good administration, legal certainty and proportionality, as well as to the limits on the delegation of powers enshrined in the case-law in Meroni v High Authority. (35) The General Court’s reasoning in that regard is, moreover, vitiated by a number of contradictions.

27.      First of all, it is apparent from the wording of Article 69(1) of that regulation that the target level corresponding to ‘at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States’ is a strict minimum requirement. That provision determines the primary objective to be achieved by the end of the initial period, a fact which the Court has already acknowledged (36) and which is apparent moreover, according to the Council, from recital 8 of Delegated Regulation 2017/747.

28.      In addition, contrary to what the General Court states in paragraphs 50 and 51 of the judgment under appeal, the meaning of the first and fourth subparagraphs of Article 70(2) of the SRM Regulation is not unambiguously clear from its wording. Furthermore, the General Court contradicted itself by interpreting that provision in a manner contrary to that wording. According to the wording of that provision, read in conjunction with point 35 of Article 3(1) of that regulation, the ‘target level’ to which reference is made is the ‘final target level’, which cannot be known with certainty until the end of the initial period. Accordingly, the 12.5% cap rule is intended to apply to that final target level and not to the target level ‘forecast’ each year of the initial period, contrary to what the General Court found in paragraph 47 of the judgment under appeal. Compliance with that rule can, moreover, be determined only on average, on the basis of all the contributions collected at the end of that period, which was the case here. (37)

29.      Article 69(1) and the first and fourth subparagraphs of Article 70(2) of the SRM Regulation must therefore be interpreted on a contextual and teleological basis, in order to reconcile those provisions and to give them practical effect.

30.      The primary objective pursued by Article 69(1) of that regulation, which is apparent inter alia from the explanatory memorandum to the proposal for the SRM Regulation, is to ensure that the financial sector provides adequate financial means so that the Single Resolution Mechanism is able to perform its roles, in order to preserve the financial stability of the system, and that the contributions of the financial institutions are proportionate and foreseeable.

31.      In addition, the indicative nature of the 12.5% cap is apparent from the context and from the purpose of the first and fourth subparagraphs of Article 70(2) of the SRM Regulation. Thus, the wording of the explanatory memorandum accompanying the proposal for the SRM Regulation stated that the annual contribution from the banking industry over the initial period, at that time set at 10 years, would represent ‘around’ one tenth of the target level. (38) The 12.5% cap was therefore included during the legislative process solely to take account of an initial eight-year period, and must be reconciled with the principle that the contributions are to be spread out as evenly as possible, as is apparent from Article 69(2) and (5) of that regulation and from Article 3(1) of Delegated Regulation 2017/747.

32.      Furthermore, nor does Article 69(3) and (4) of the SRM Regulation, which concerns specific circumstances in which the SRB could be prompted, respectively, to extend the initial period or to levy new contributions after that period, support the view that the 12.5% cap must be applied strictly each year of that period or that the system tolerated the target level not being reached by the end of the initial period.

33.      From a contextual standpoint, the SRB adds that the EU legislature did not intend to allow the SRB to raise more contributions than necessary, unlike the system established under the BRRD, in which Member States were expressly granted the power to set target levels in excess of the amount of ‘at least 1% of covered deposits’. (39) It is not allowed, with the sole aim of complying with the 12.5% cap, to set the target level intentionally at an artificially higher level than that which would result from an accurate representation of the facts and from economic assessments available at the time of the projections, contrary to what the General Court required, however, in paragraphs 57 to 59 of the judgment under appeal.

34.      Moreover, such a requirement to overestimate the target level constitutes a breach of the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, and of the principles of legal certainty and proportionality. It also disregards the limits on the delegation of powers to an EU agency as enshrined in the judgment in Meroni. Allowing the SRB to set the target level at a percentage chosen at will in excess of 1% of the amount of covered deposits would undermine the power of the legislature to determine the necessary and proportionate amount to ensure the effective and adequate financing of the SRF, and would essentially transfer to the SRB the responsibility for determining the appropriate final target level, thereby conferring genuine political discretion on the SRB.

35.      Lastly, the General Court’s reasoning is vitiated by contradictions since, on the one hand, it states, in paragraph 46 of the judgment under appeal, that the SRB must make ‘as precise an estimate as possible of the final target level in the light of the data available at the time of that estimate’ and, on the other hand, in paragraphs 57 and 58 of that judgment, it finds that the SRB was required to ‘estimate, on the basis of conservative projections, the evolution of the amount of covered deposits in such a way that that target level is reached, while observing the 12.5% cap’, which means overestimating the target level without any justification for so doing on the basis of the available data.

36.      The SRB concludes by arguing that the appropriate balance between Article 69(1) and (2) and Article 70(2) of the SRM Regulation can be preserved only by regarding the 12.5% cap not as an absolute limit but as a limit to be applied in a manner consistent with the rule that contributions are to be spread out as evenly as possible over the initial period and with the primary objective of reaching the final target level at the end of that period. It would have been practically impossible to achieve that objective if the SRB had had to apply that cap strictly. The General Court was therefore also incorrect to find, in paragraphs 55 to 58 of that judgment, that it was possible to adopt such an approach. Such an analysis is based on incorrect review criteria and disregards matters of fact and of law existing when the SRB decisions were adopted during the 2022 and 2023 contribution periods.

37.      In Case C‑705/24 P, the SRB additionally asks the Court of Justice, if it confirms the General Court’s interpretation, to clarify which amount must not exceed the 12.5% cap of the forecast final target level, since the General Court did not take a view on that question. In the SRB’s opinion, the first and fourth subparagraphs of Article 70(2) of the SRM Regulation must be interpreted as requiring account to be taken not of the annual target level but of the actual total amount of the contributions raised by the institutions after deduction of the contributions paid in 2015 by the institutions in question to the participating Member States in accordance with the BRRD and after revisions of the contributions paid by those institutions in previous years. (40)

38.      The Parliament submits that, although the General Court correctly held, in paragraph 55 of the judgment under appeal, that it was not impossible to reconcile the objective of reaching the target level with the 12.5% cap rule and the requirement to spread out the annual contributions as evenly as possible, as follows from a literal interpretation of Articles 69 and 70 of that regulation, the General Court however ruled out such an interpretation, in paragraphs 46 to 48 of that judgment, by finding that the cap related to the forecast final target level and not the final target level known at the end of the initial period. Such an error led it to require the SRB to overestimate the amount of the target level, a requirement which follows neither from the wording nor from the objective of that regulation and which precludes compliance with the requirement that annual contributions are spread out evenly. The Parliament’s arguments otherwise essentially echo those of the SRB and the Council. The same is true of the Commission, which submits that the General Court’s reasoning makes the annual target level the decisive factor, to the detriment of the final target level, and thus turns on its head the ranking of the financial targets to be achieved.

B.      Arguments of the credit institutions

39.      Dexia (41) contends that the claims alleging that the General Court required the SRB intentionally to overestimate the target level stem from a misinterpretation of the judgment under appeal. The General Court simply stated that the SRB was bound to comply with its obligation to exercise due care and diligence, and to make as precise an estimate as possible in the light of the data available in order to estimate, on the basis of conservative projections, the evolution of the amount of covered deposits in such a way that that target level is reached. Such requirements are not contradictory and preclude any overestimate.

40.      Furthermore, it is incorrect to assume that the SRB was required, at all costs, to reach the target level by the end of the initial period. The general scheme and the purpose of the system of collection of ex ante contributions must, as a minimum requirement, incorporate the following three aspects: first, the uncertain nature of the target level until the end of the initial period; second, the annual 12.5% cap spread over eight years, which entails a non-negligible risk of the target level not being reached if that level is underestimated in the first few years; and, third, the dynamic nature of the target level. In that regard, Dexia argues that it is apparent from the first sentence of Article 69(4) of the SRM Regulation, in particular in the light of the German- and Swedish-language versions of that provision, that contributions may continue to be collected beyond the initial period if the target level has not been reached at the end of that period. The SRB endorsed that interpretation by announcing, on 14 September 2023, that it was preparing to collect fresh information for a potential ex ante contribution for 2024.

41.      Dexia adds that there is no inconsistency or contradiction in the General Court’s literal interpretation of Article 70(2) of that regulation, from which it is unambiguously clear that the 12.5% cap rule is mandatory and applies ‘in any case’, without distinguishing between the initial period and the subsequent period. Furthermore, the General Court could take account of the context and the purpose of that provision in order to rule on the classification of that rule as meaning that it must be applied to the final target level forecast each year of the initial period, and not to the final target level which is unknown until the end of that period.

42.      The Bundesverband deutscher Banken and the Österreichischer Sparkassenverband put forward, in essence, the same arguments as Dexia. The Österreichischer Sparkassenverband adds that the introduction of the 12.5% cap rule was a decisive prerequisite for the political agreement between the Parliament and the Council during the legislative process. The Fédération bancaire française insists that it is not contradictory to have to make a precise but conservative estimate of the target level, and that the mandatory wording of Article 70(2) of that regulation does not allow the SRB to derogate from the rule imposing that cap under any circumstances. The latter two interveners also note that the interpretation according to which the cap is applicable only to the final target level known at the end of the initial period has the effect of preventing any judicial review of the SRB decisions setting annual contributions, since they have then become final and not open to challenge.

43.      BAWAG, (42) supported at the hearing by the Bundesverband deutscher Banken, argues that there is no conflict between Article 69(1) and Article 70(2) of the SRM Regulation. First, it is apparent from the clear wording of the latter provision that the 12.5% cap is intended to apply strictly during the initial period. Second, the objective of reaching the target level is a rule which allows exceptions, as is clear inter alia from Article 69(3) and (4) of that regulation. Since extending the initial period is allowed, the SRB can by no means be required to overestimate the target level. The order under appeal is therefore not vitiated by errors of law.

44.      As regards the additional request made to the Court by the SRB, BAWAG argues that, in accordance with the wording of the fourth subparagraph of Article 70(2) of that regulation, the 12.5% cap applies to the annual target level, before any deduction or adjustment of the contributions, as is apparent, moreover, from paragraph 62 of the judgment under appeal.

C.      Assessment

45.      As a preliminary point, it should be observed that, in the course of the legislative process which led to the adoption of the SRM Regulation, it was stated that the target level to be reached by the end of the initial period would correspond to around EUR 55 billion, and that that target level in absolute amounts would remain dynamic and would increase automatically if the banking industry grew. (43) On that basis, the SRB required contributions for 2016 corresponding to an amount of approximately EUR 6.4 billion. Since an upward trend in covered deposits was subsequently recorded, the SRB adjusted the amount of the contributions to be raised as follows: it collected an amount of approximately EUR 6.6 billion in 2017, EUR 7.5 billion in 2018, EUR 7.8 billion in 2019, EUR 9.1 billion in 2020 and EUR 10.4 billion in 2021.

46.      As I noted in point 13 of this Opinion, following a series of significant one-off events that occurred from 2019 onwards, the SRB estimated that, for the 2022 contribution period, the target level to be reached at the end of the initial period was approximately EUR 80 billion. In order to reach that final target level estimated in 2022, the SRB set an amount of contributions corresponding to EUR 14 253 573 821.46. (44) It is apparent from the documents in the file that that amount was reduced to EUR 13 675 366 302.18 after, inter alia, deductions made pursuant to Article 8(2) of Implementing Regulation 2015/81. (45) According to the SRB, the amount of the ex ante contributions thus raised in 2022 corresponded to 17.09% of the final target level estimated in 2022. If it had applied the 12.5% cap to that target level, it could have raised only approximately EUR 10.5 billion.

47.      Similarly, as I observed in point 14 of this Opinion, the SRB estimated, for the 2023 contribution period, that the target level to be reached at the end of the initial period would be approximately EUR 78 billion. In order to reach that final target level estimated in 2023, the SRB set an amount of contributions corresponding to EUR 11 702 958 514.31, (46) which was reduced to EUR 11 283 042 119.51. According to the SRB, the amount of the ex ante contributions thus raised in 2023 corresponded to 14.5% of the final target level estimated in 2023. If it had applied the 12.5% cap to that target level, it could have raised only approximately EUR 9.7 billion.

48.      At the end of the initial period, the financial means of the SRF stood at approximately EUR 78 billion. The SRB also calculated that the total amount of the covered deposits of all of the credit institutions authorised in all of the participating Member States was EUR 7 500 billion. It therefore concluded that ‘the target level at 31 December 2023 in the participating Member States amounted to approximately EUR 75 billion’ (‘the actual target level’). (47) The amount of the contributions actually raised in the course of 2022 therefore corresponded to 18.23% of the actual target level, whereas the amount in 2023 equated to 15.04% of that actual target level.

49.      In essence, the claims made by the SRB in the present appeals ask the Court of Justice to determine whether the General Court erred in law in its interpretation of the correct relationship between Article 69(1) of the SRM Regulation, which requires that the target level is reached at the end of the initial period, and Article 70(2) of that regulation, which caps the amount of the contributions which the SRB may require.

50.      In that regard, my reasoning will follow a two-stage approach. (48) In the first place, I shall interpret Article 69(1) and Article 70(2) of the SRM Regulation on the basis of their wording, their context and the origin of the SRM Regulation, as well as the objectives pursued by that regulation, with a view to proposing a conclusion as to what I consider to be the intended relationship between those provisions within the system introduced by that regulation. In the second place, I shall expand upon my analysis to consider, more specifically, the SRB’s claim that it was impossible, given the circumstances as they arose during the 2022 and 2023 contribution periods, to reach the target level whilst observing the 12.5% cap.

1.      The literal, contextual, historical and teleological interpretation of Article 69(1) and Article 70(2) of the SRM Regulation

51.      I recall that, in accordance with settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation. (49)

52.      Furthermore, the Court has clarified that, while an interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness, the Courts of the European Union are not however deprived of the possibility of having recourse in certain situations to methods of interpretation which they consider appropriate in order to clarify the exact scope of a provision of EU law that appears to be clear, its being understood that every provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. (50)

(a)    The wording of Article 69(1) and of Article 70(2) of the SRM Regulation

53.      With regard to the wording of Article 69(1) of the SRM Regulation, I recall that it provides that, by the end of the initial period, ‘the available financial means of the [SRF] shall reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States’. (51) The use of the words ‘at least 1%’ demonstrates that, within a certain limit, the EU legislature allowed the SRB to raise contributions totalling more than 1% of the amount of covered deposits, which represents a minimum threshold to be reached. (52)

54.      In turn, Article 70(2) of that regulation provides that, ‘each year, the [SRB] shall … calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level’, and that, ‘in any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States … shall not exceed annually the 12.5% of the target level’. (53) The presence of the words ‘each year’ in the first subparagraph of that provision and ‘in any case’ and ‘annually’ in the fourth subparagraph of that provision must in my view be understood as meaning that the 12.5% cap rule is intended to apply during the initial period and not exclusively at the end of that period, as the SRB claims. (54)

55.      The ‘target level’ is, moreover, defined in point 35 of Article 3(1) of the SRM Regulation as ‘the amount of available financial means to be reached under Article 69(1)’ (55) of that regulation. That definition does not specify whether that target level is the amount estimated each year of the initial period or the amount known and reached at the end of that period. Nevertheless, the target level is dynamic and undetermined throughout the initial period, such that it can only be estimated during that period. In addition, it is apparent from Article 70(2) of that regulation that the cap is intended to apply ‘each year’. It therefore follows that that cap can apply, during the initial period, only to a target level that is ‘estimated’ or ‘forecast’ annually. (56)

56.      It is therefore clear from the wording of those provisions that, in addition to the target level to be reached at the end of the initial period, there is an annual cap of the amount of contributions that can be raised by the SRB from the institutions in each year of that period. Since the target level is by definition undetermined during the initial period, that cap is calculated with regard to the target level as estimated in each of those years. There is, furthermore, nothing in the wording of those two provisions to support the view that one takes precedence over the other. Moreover, it is established that the SRB, over the initial period, always attempted to calculate the cap at 12.5% of the estimated target level. It changed its approach only when it realised that that cap was at odds with the objective of reaching the target level. (57)

57.      Such a reading of Article 69(1) and Article 70(2) of the SRM Regulation is confirmed, in my view, by the origin of those provisions and their context.

(b)    The historical interpretation and the context of Article 69(1) and Article 70(2) of the SRM Regulation

58.      Historically, I would observe that, while Article 69(1) of the SRM Regulation appeared, in essence, as early as in the text of the Commission’s proposal for that regulation, Article 70(2) of the SRM Regulation was added during the legislative process.

59.      Thus, it is apparent from the explanatory memorandum to the proposal for the SRM Regulation that, to ensure sufficient funding, avoid the pro-cyclicality of pay-as-you go systems and minimise the need to request external financial support, the SRF needed readily available resources, and that, to that end, the target level of the SRF should be at least 1% of covered deposits, which would have been sufficient to ensure an orderly resolution in the event of a crisis. (58) Article 65(1) of that proposal was worded in terms similar to those of Article 69(1) of the SRM Regulation, although the former stated that the target level was to be achieved ‘in a period no longer than 10 years’. (59)

60.      However, the proposal for the SRM Regulation did not set any cap on the contributions raised annually. With regard to the ex ante contributions, that proposal stated merely, in Article 65(2) thereof, which became Article 69(2) of the SRM Regulation, that they would be ‘spread out in time as evenly as possible until the target level is reached unless, depending on the circumstances, they can be advanced in consideration of the favourable market conditions or the funding needs’. Article 66(1) of that proposal added that the individual contributions of each institution were to be calculated pro-rata to the amount of its net liabilities, with respect to the aggregate net liabilities of all the institutions authorised in the territories of the participating Member States, adjusted in proportion to the risk profile of each institution. It was stated only in the explanatory memorandum to that proposal that, without any intervention by the SRF over the initial period, ‘the banking industry would contribute annually around one tenth of the target amount’. (60)

61.      This can be explained by the fact that, initially, the system proposed by the Commission was primarily modelled on the provisions of the BRRD. As I noted in point 8 of this Opinion, the BBRD provided that the financial means of the national financing arrangements had to reach at least 1% of the amount of covered deposits of all the institutions authorised in the territory of each Member State by the end of a ten-year period, whilst providing for the contributions to be spread out evenly over time until the target level is reached, without an annual cap being set. (61)

62.      In the course of the legislative process, as the General Court pointed out in paragraph 36 of the judgment under appeal, the Council proposed that a new first subparagraph of Article 66(1a) be added to the text of the SRM regulation, under which, each year, ‘national resolution authorities shall calculate the individual contributions to ensure that the contributions due by all the institutions authorised in the territories of the participating Member States shall amount to 10% of the target level’, (62) as well as a fourth subparagraph which restates that 10% cap of the target level by specifying that the aggregate amount of individual contributions ‘shall not exceed annually the 10% of the target level’. (63)

63.      Following the trilogues between the Commission, the Council and the Parliament, a final compromise text was approved, (64) in which, since the initial period had been reduced from ten to eight years, the 10% cap of the target level was raised to 12.5% and the words ‘shall amount to 10% of the target level’, contained in the first subparagraph of Article 66(1a) of the proposal for an amendment by the Council, were replaced by ‘shall not exceed 12.5%’ of that level. (65)

64.      To my knowledge, no statement was made or explanation given as to why the EU legislature agreed on the addition of the 12.5% cap rule and changed the terminology in favour of mandatory terms.

65.      I would, however, point out that the system as it stood under the Commission’s initial proposal was largely based on the system introduced by the BRRD. The addition of the 12.5% cap rule in the course of the legislative process, and the changes to terminology made in that regard, therefore represents, in my view, the expression of the EU legislature’s explicit intention to depart from the system under the BRRD (66) and to set a cap on the ex ante contributions raised annually. (67) The restating of that cap twice within Article 70(2) of the SRM Regulation also tends to confirm the legislature’s intention that that rule be applied strictly and ‘in any case’, as is apparent from the fourth subparagraph of that provision. The SRB does not produce any document capable of demonstrating that that intention to amend the system as set out in the proposal for the SRM Regulation must be ruled out. (68)

66.      Contrary to what the appellant claims, it is not therefore apparent from the origin of the SRM Regulation that the 12.5% cap rule is applicable only on average, having regard to the actual target level known at the end of the initial period, (69) or that it is to be interpreted flexibly. Nor is that reading supported by the context of Articles 69 and 70 of that regulation, a context of which Article 69(2) forms part.

67.      Article 69(2) of that regulation, which states that the contributions ‘shall be spread out in time as evenly as possible until the target level is reached’, also provides that, ‘during the initial period’, those contributions are ‘calculated in accordance with Article 70’ of that regulation. As the General Court correctly found in paragraphs 31 and 54 of the judgment under appeal, such a reference necessarily includes paragraph 2 of the latter provision in its entirety, including the 12.5% cap rule laid down in the first and fourth subparagraphs of that provision. (70) Furthermore, that need to spread out the contributions ‘as evenly as possible’ affords, in the light of the words used, a degree of flexibility, such that the leeway granted to the SRB by that provision must be exercised in compliance with, and within the limits imposed by, Article 69(1) and Article 70(2) of the SRM Regulation.

68.      I would add that the distinction made by the EU legislature between contributions which are allowed to exceed the 12.5% cap and those which are not is likewise apparent from other provisions of the SRM Regulation. Article 69(3) of that regulation, which provides for the possibility of extending the initial period for a maximum of four years in the event that the SRF has made cumulative disbursements in excess of 0.5% of the total amount of covered deposits, does not make any reference to Article 70 of that regulation in respect of the calculation of contributions. (71) Similarly, the EU legislature took care to distinguish the situations covered in Article 69(4) of that regulation. Under the first sentence of that provision, if, after the initial period, the financial means diminish below the target level, (72) the contributions raised by the SRB until the target level is reached must be ‘calculated in accordance with Article 70’. The reference to Article 70 of the SRM Regulation, and the fact that the period within which the target level must be reached once more is not specified, can be understood to mean that the 12.5% cap must be observed when calculating the contributions. The same is not true as regards the circumstances referred to in the second sentence of that provision, which does not make such a reference but provides, by contrast, that, after the target level has been reached for the first time, and where the available financial means have subsequently been reduced to less than two-thirds of the target level, those contributions are to be set at a level allowing for reaching the target level within six years. For the target level to be reached again within six years while the financial means have been reduced to less than two-thirds of that target level, it must be possible for the annual contributions to exceed that cap. (73)

69.      Such distinctions made in the actual text of the SRM Regulation tend to confirm that the EU legislature explicitly limited the circumstances in which the objective of reaching the target level could take precedence over the cap. No such situation arises in the present case.

70.      It is therefore not apparent from the context of Articles 69 and 70 of the SRM Regulation that the primary objective of that regulation is that the target level is reached at the end of the initial period, or that that is the cornerstone of the system introduced by that regulation, with the result that the 12.5% cap rule should be interpreted in the light of such an objective.

71.      A teleological interpretation of those provisions does not, in my view, lead to a different conclusion.

(c)    The objectives pursued by the SRM Regulation

72.      The Court has already had occasion to clarify that, as far as concerns the objectives pursued by the SRM Regulation, which must be borne in mind when interpreting the provisions of that regulation, it is clear from recitals 2, 10 to 12, 31, 58 and 122 of that regulation that, by putting in place a uniform and centralised decision-making process with regard to the resolution of credit institutions in the context of a single resolution mechanism, the purpose of that regulation is to ensure a swifter and more effective decision-making process in resolution in the banking union with a view, inter alia, to ensuring greater predictability regarding the outcome of bank failure, to maintaining financial stability, to ensuring the continuity of essential financial services and to protecting depositors, (74) based in particular on an SRF funded by contributions raised from credit institutions coming within the scope of that regulation. (75)

73.      The specific nature of the ex ante contributions to the SRF consists, as is apparent inter alia from recital 41 of the SRM Regulation, in ensuring, according to an insurance-based logic, that the financial sector provides adequate financial resources for the Single Resolution Mechanism to be able to fulfil its functions, while encouraging the adoption, by the institutions concerned, of less risky methods of operation. (76) Recital 104 of that regulation also states that, in order to reach a critical mass and to avoid pro-cyclical effects which would arise if the SRF had to rely solely on ex post contributions in a systemic crisis, it is indispensable that the ex ante available financial means of the SRF amount at least to a certain minimum target level.

74.      With regard more specifically to Articles 69 and 70 of the SRM Regulation, Advocate General Kokott quite rightly observed, in the case of ABLV Bank v SRB, that the objective of the levying of contributions in accordance with those provisions is to reach a predetermined amount – the target level – which, however, cannot be levied all at once due to its significant size. While the amount of the contributions ultimately depends on the target level that must be met by an aggregate of all contributions collected before the end of the initial period, the ex ante contributions of a bank in a given year constitute first and foremost a fraction of the amount of the target level. A total amount corresponding to one eighth of slightly more than 1% of the previous year’s covered deposits is always levied in order to arrive, at the end of the initial period, at a total amount corresponding to at least 1% of all covered deposits. More specifically put, the SRB proceeded on the basis of the average amount of the covered deposits of all credit institutions authorised in the participating Member States in the year preceding the year in question, divided it by eight and collected slightly more than 1% of that amount, since covered deposits were tending to increase. (77)

75.      It should be inferred from the foregoing, in my view, that, within the framework of the SRM Regulation, by the combination of Article 69(1) and Article 70(2) of that regulation, the EU legislature intended to afford the SRB the power to raise annual contributions with the aim of reaching the target level by the end of the initial period, whilst ensuring that the burden imposed on the institutions during that period is spread out in time as evenly as possible and, in any case, does not exceed a particular cap. The objective of ensuring that the financial means of the SRF will be available to the SRB as quickly as possible in the case of resolution, that is to say, of safeguarding the financial capacity and the liquidity of the SRF, therefore had to be continued whilst complying with the condition intended to cap, for each year of the initial period, the amount of the contributions from banking institutions, in order to protect those institutions from excessive contributions. (78) As Advocate General Richard de la Tour stated in the Joined Cases of Commission v Landesbank Baden-Württemberg and SRB, the SRB does not therefore have the power to set a target level below 1% or a total amount of annual contributions above 12.5%. (79)

76.      Contrary to what the SRB claims, that conclusion is not called into question by the case-law of the Court arising from the judgments in Commission v Landesbank Baden-Württemberg and SRB and in State Street Bank International, from which it is not apparent that Article 69(1) takes precedence over Article 70(2) of the SRM Regulation.

77.      It is true that, in the judgment in Commission v Landesbank Baden-Württemberg and SRB, the Court stated, in paragraph 113, that the calculation of the contributions is based, ‘in accordance with Articles 102 and 103 of [the BRRD] as well as Articles 69 and 70 of [the SRM Regulation], on the fixing of a target level that must be met by an aggregate of all contributions collected before the end of 2023, and thereafter on an annual target level to be apportioned between the institutions authorised in the Member States that participate in the [Single Resolution Mechanism]’. (80) However, it is not possible, in my view, to infer any order of priority between the provisions themselves from the use of the adverb ‘thereafter’.

78.      From a temporal perspective, it is true that the 12.5% cap can be applied only once the target level has been estimated. I am not, however, convinced that the consecutive nature of the determination, in the first place, of an estimated final target level and, in the second place, its division by eight to give an annual target level in order to set the amount of annual contributions, which is due to the mathematical necessities of the exercise, is intended to establish an order of priority between Article 69(1) and Article 70(2) of the SRM Regulation. It is rather a finding of a practical nature, given that the methodology for the calculation of ex ante contributions entails estimating the amount of the target level to be reached at the end of the initial period and then spreading that amount out over the years of that period in order to calculate the exact amount of the annual contributions to be raised.

79.      As regards the judgment in State Street Bank International, it must be observed that the objective of an annual collection of ordinary contributions from institutions referred to in that judgment, which is intended to ensure that, by 31 December 2024, the financial means available for the Member States’ financing arrangements will come to at least 1% of the amount of covered deposits of all the institutions authorised in their territory, fell within the scope of the mechanism introduced under the BRRD. (81) However, as I have already noted, unlike the SRM Regulation, that system does not provide for a cap on the contributions to be raised annually over the initial ten-year period.

80.      Nor does the classification of achieving the target level as the primary objective of the SRM Regulation, to the detriment of the 12.5% cap rule, follow from recital 8 of Delegated Regulation 2017/747. While that recital does state that ‘any variation resulting in lower ex ante contributions should be calculated taking into account the fact that it would later lead to an increase in order to ensure that the target level is reached within the set deadlines’, it is by no means apparent from that fact that the ‘increase’ in contributions in question would mean being able to exceed that cap.

81.      At the hearing, the possible application of the theory of ‘practical concordance’ (‘praktische Konkordanz’) to the conflict between Article 69(1) and Article 70(2) of the SRM Regulation was discussed. Used by the Bundesverfassungsgericht (Federal Constitutional Court, Germany) in the case of conflict between two fundamental rights or freedoms, that theory, developed by Dr Konrad Hesse, is intended to prevent preference being given to one of the two conflicting rights to the detriment of the other, and seeks on a case-by-case basis, in so far as possible, to find a compromise between those rights, without having to ‘sacrifice’ one of the two entirely. Such an exercise means that limits have to be imposed on each of the rights in question, so that each can produce its optimum effect. To that end, those limits must be proportionate to the specific circumstances and must not go beyond what is necessary to ensure concordance between the constitutional or fundamental values in conflict. (82)

82.      I am not convinced that that theory, as appealing as it might be, can be applied in the present case. Besides the fact that the context at issue is not one in which fundamental rights are concerned, the interpretation proposed by the European institutions must be found to amount to rejecting entirely the application of the 12.5% cap rule in a case such as the present one.

83.      However, as I have set out in points 53 to 80 of this Opinion, the 12.5% cap rule is, in my view, intended to be applied strictly during the initial period. The clear wording and the travaux préparatoires reflect the EU legislature’s intention to depart from the system as established under the BRRD and give weight to the idea that the 12.5% cap was conceived as a genuine limit on how the SRF is to be built up ordinarily. I see no intention to the contrary on the part of the legislature in either the text or the context of the SRM Regulation, or in the objectives expressed in that regulation. If the will of the legislature had been as presented by the EU institutions, it would have had ample opportunity to state it, at least, in a dedicated recital of that regulation. (83) I therefore concur with the proposal made, in essence, by Advocate General Bobek that, if the legislature was unable or unwilling to state clearly what it wanted, it is problematic to start doing so later, by means of interpretation. (84)

84.      It follows from the foregoing that the General Court did not err in law in finding, in paragraphs 30 to 38 of the judgment under appeal, that the 12.5% cap rule contained in Article 70(2) of the SRM Regulation applies strictly during the initial period and, in paragraphs 46 to 48 of that judgment, that it is the ‘forecast’ final target level that is decisive for the application of that cap. Nor did the General Court err, in paragraphs 52 to 54 of that judgment, in rejecting the SRB’s arguments relating to the possibility available to it to disregard the 12.5% cap rule with a view to achieving the objective of reaching the target level.

85.      The SRB’s arguments must therefore be rejected as unfounded.

(d)    Conclusions regarding the relationship between Article 69(1) and Article 70(2) of the SRM Regulation

86.      The purpose of the scheme behind the system established by the EU legislature, as is apparent from the wording, the origin and the context of Article 69(1) and Article 70(2) of the SRM Regulation, as well as from the objectives pursued by that regulation, is the need to reconcile the requirements to guarantee that the Single Resolution Mechanism is quickly operational and to exert a gradual and proportionate impact on the banking industry. Since those provisions have the same legal force, the obligations arising from the first cannot, as such, prevail over those arising from the second, and vice versa. (85) That inevitably requires the SRB to estimate the target level correctly from the very start of the initial period and to make provision for the occurrence of anything which might cause the amount of the target level to be reached to fluctuate.

87.      That is essentially the view already taken in advice provided by the European Banking Authority in 2015, in which that authority made a number of assumptions concerning Article 69 of the SRM Regulation. In that regard, it stated that, assuming that covered deposits were going to be higher in absolute terms at the end of the initial period than at the beginning, and since the 1% threshold is a minimum level, it is the responsibility of the SRB to determine the target level at the beginning of the initial period appropriately to account for that fact and to determine the financial means that must be implemented to achieve that level. It added that since, pursuant to Article 70 of that regulation, the ex ante contributions are capped at 12.5% of the target level, and given the expected increase in absolute terms and the eight-year duration of the initial period, from the very beginning of that period the SRB has to set a target level based on a conservatively projected level of covered deposits at the end of the period, to reach at least 1% of those deposits, which is considerably higher than 1% of the volume of covered deposits in 2015. (86)

88.      It is my view that the General Court did not therefore err in stating, in essence, in paragraph 55 of the judgment under appeal, that it was not impossible per se to reconcile the requirements under Article 69(1) and Article 70(2) of the SRM Regulation. Matters of fact and of law that existed when the 2022 and 2023 SRB decisions were adopted cannot influence the legal interpretation of the SRM Regulation.

89.      Nor did the General Court err in law in finding, in paragraph 46 of the judgment under appeal, that it was for the SRB, in respect of each contribution period, to make ‘as precise an estimate as possible of the final target level in the light of the data available at the time of that estimate’ and, in paragraphs 57 and 58 of that judgment, in adding that the prospective nature of the estimate of the target level means that the SRB must estimate ‘with sufficient care’ and ‘on the basis of conservative projections’ the evolution of the amount of covered deposits throughout the initial period.

90.      Such a conclusion is in itself neither incorrect nor contradictory since, contrary to what the SRB alleges, the General Court did not state that the SRB had to ‘overestimate intentionally and significantly’ the target level or set the target level deliberately at a ‘level artificially higher than a precise assessment would require’.

91.      In the light of my proposed interpretation of the relationship between Article 69(1) and Article 70(2) of the SRM Regulation, it appears unnecessary to me, in this Opinion, to examine the claims alleging infringement of the principles of good administration, legal certainty and proportionality, as well as of the limits on the delegation of powers enshrined in the judgment in Meroni, which are based on a reading of the judgment under appeal which I consider to be flawed.

92.      Furthermore, with regard to the more specific question of whether the amount that should be taken into account with regard to the 12.5% cap of the target level is the annual target level or the actual total amount of the contributions raised, it must be observed that the General Court did not take a view on that issue in the judgment under appeal. In paragraphs 62 to 64 of that judgment, the General Court found that, for the 2022 contribution period, both the annual target level (EUR 14 253 573 821.46) and the actual total amount of the contributions raised (EUR 13 675 366 302.18) exceeded the amount of EUR 9 998 431 322.50, which corresponds to 12.5% of the forecast final target level (EUR 79 987 450 580). That specific legal question therefore goes beyond the scope of the appeals, and I shall therefore not examine it in this Opinion. I do, however, note that it forms the subject of an appeal currently pending, in Case C‑385/25 P, brought by Hypo Vorarlberg Bank AG against the judgment of 9 April 2025, Hypo Vorarlberg Bank v SRB (2016 ex ante contributions) (T‑336/20, EU:T:2025:383), relating to the calculation of the 2016 ex ante contributions.

93.      In the light of all the foregoing considerations, I propose that the Court should dismiss the SRB’s grounds of appeal as unfounded.

2.      The specific circumstances which arose during the 2022 and 2023 contribution periods

94.      It is apparent from points 86 to 88 of this Opinion that, in my view, in accordance with the system introduced by the SRM Regulation, as it was conceived by the legislature when it was adopted, it was not impossible per se to reconcile the objective of reaching the target level with the 12.5% cap rule.

95.      I do note, however, that, although that regulation was intended to address certain issues that a financial crisis can cause and that the EU legislature did explicitly provide for the occurrence of quite specific events, it does not appear to have envisaged, at the very least clearly envisaged, a scenario in which the SRB made unfortunate forecasting errors during the initial period or in which the SRF made significant disbursements, albeit below 0.5% of the total amount of covered deposits allowing the initial period to be extended pursuant to Article 69(3) of that regulation, or the occurrence of a change in economic circumstances such that there might be a sharp and unforeseeable increase in covered deposits. (87)

96.      That last scenario did, however, in fact arise in 2022, and the SRB cannot be criticised for having failed to foresee the invasion of Ukraine by Russia or the precise economic consequences of the pandemic triggered by COVID-19, which, as is apparent from the documents on file, prompted a substantial increase in the amount of covered deposits during the initial period, with the result that the SRB actually found it impossible to reach the final target level estimated during the 2022 and 2023 contribution periods whilst observing the 12.5% cap of that target level. (88)

97.      Must the view thus be taken that, in such circumstances, only the following three solutions were available to the SRB: (i) ‘overestimate’ manifestly and artificially the target level to ensure compliance with the 12.5% cap of that overestimated target level whilst reaching the ‘actual’ target level at the end of the initial period, which would have been significantly lower; (ii) make a conservative estimate of the target level and disregard the 12.5% cap to guarantee that the target level is reached; or (iii) make such a conservative estimate of the target level, observe the 12.5% cap in that regard and risk not reaching at least 1% of the amount of covered deposits at the end of the initial period?

98.      With regard to the first of those solutions, and whilst repeating that, in my view, it is incorrect to read such a meaning into the judgment under appeal, it appears to me to stem from the advice provided by the European Banking Authority where it stated that the SRB could, at a given point in time, use its power to revise and set a target level higher than the expected 1% of covered deposits, if the level of covered deposits increased unexpectedly and the original estimate proved to be much too low, and the contributions capped at 12.5% were not sufficient to cover the difference. (89)

99.      It should, however, be observed that, if that had been the case, the SRB should have, for the 2022 contribution period, explicitly set the target level at an amount of approximately EUR 109.4 billion, whereas in reality it estimated it to be approximately EUR 80 billion and it is now known that the ‘actual target level’ was approximately EUR 75 billion. Such a manifest overestimate could not have failed to cause other difficulties and, I am convinced, to lead to many challenges. Furthermore, it seems to me to be contrary to the legislature’s clear intention not to authorise the SRB to set a target level higher than ‘at least 1% of the amount of covered deposits’, unlike the system introduced by the BRRD.

100. The SRB preferred to adopt the second of those solutions and, for the reasons set out in points 53 to 84 of this Opinion, it is my view that such an approach was vitiated by infringement of Article 70(2) of the SRM Regulation, as the General Court concluded in paragraph 65 of the judgment under appeal.

101. There remains the third of those solutions.

102. It is true that it means that, in the light of the circumstances as they arose during the 2022 and 2023 contribution periods, the SRB would not have reached the actual target level at the end of the initial period, contrary to Article 69(1) of the SRM Regulation.

103. However, even though that scenario does not appear to have been explicitly envisaged by the legislature, the fact remains that it was likely to occur in circumstances other than those which occurred in the present case.

104. The situation would undoubtedly have been the same if unforeseeable events with a non-negligible economic impact leading to a significant increase in covered deposits had occurred during the second half of 2023, after the SRB set the amount of the contributions for that final year of the initial period. The target level would then unquestionably not have been reached and the SRB would have had to find accordingly at the end of the initial period.

105. That is a scenario which, furthermore, the SRB appears to have envisaged, in the light of the document referring to ‘consultations and requests to the industry’ for 2024, in which the SRB presented a table of the public consultations which would take place over the course of 2024, including ‘if the target level [was] not reached’, and which included a ‘consultation on preliminary amounts of the ex-ante contributions (only in case the target level is not reached and therefore 2024 contributions are collected) …’ and a ‘consultation on the modalities of payment of ex-ante contributions (only in case the target level is not reached)’. (90) Moreover, on 15 February 2024, the SRB issued a press release in which it announced that, since the target level had been reached, no contribution would be collected in 2024. (91) While, at the hearing, the SRB stated that the press release did not necessarily reflect its position, it also acknowledged that the legal framework did not provide for a specific rule regarding what it could have done if, for reasons beyond its control, the target level had not been reached.

106. Given such a finding and in view of the economic reality as it unfolded during the 2022 and 2023 contribution periods and was likely to recur in late 2023, it appears necessary to me to take the view, making some effort of interpretation vis-à-vis Article 69(1) of the SRM Regulation, that if, by the end of the initial period, the SRB realises that the amount of contributions raised by the SRF does not reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States, it must be able, in the course of 2024, to require new contributions from those institutions in order to achieve, at the very least, the actual target level, which is then known.

IX.    Maintaining the temporal effects

A.      Arguments of the parties

107. In the alternative, should the Court uphold the annulment of the 2022 SRB decision, the SRB, supported by the Council, seeks the deferral of the effect of that annulment for a period of six months from the date on which the judgment given in the present proceedings becomes final. As regards the 2023 SRB decision, it asks that the effects of its annulment be deferred until its readoption or, at the very least, for a period of 30 months from the date on which the judgment given becomes final.

108. BAWAG disputes the need to maintain the temporal effects of the 2023 SRB decision.

B.      Assessment

109. It should be observed that the Court will have to rule on this ground of appeal only if it dismisses the appeals and upholds the annulment of the 2022 and 2023 SRB decisions, as I propose it should do.

110. In order to avoid repetition, I refer to points 23 to 30 of the Opinion which I am delivering today in Case C‑671/24 P, BAWAG P.S.K. v SRB, in so far as they specifically concern the question of maintaining the effects of the 2023 SRB decision, which is vitiated by the same illegalities as the 2022 SRB decision.

111. I therefore propose that the Court should maintain the effects of the 2022 and 2023 SRB decisions, in so far as they concern Dexia and BAWAG, for a reasonable period that cannot exceed 30 months from the day on which the Court gives its judgment in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P, C‑671/24 P and C‑705/24 P, until new SRB decisions setting those institutions’ ex ante contributions to the SRF enter into force.

X.      Costs

112. It follows from the foregoing considerations that the appeal must be dismissed in its entirety. Accordingly, the Court is to make a decision as to the costs in accordance with Article 184(2) of the Rules of Procedure of the Court of Justice.

113. Under Article 138(1) of those Rules of Procedure, applicable to the appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the SRB has been unsuccessful, it should be ordered to bear its own costs and to pay those of Dexia and BAWAG, in accordance with the form of order sought by those parties.

114. Under Article 140(1) and (3) of those Rules of Procedure, applicable to the appeal proceedings pursuant to Article 184(1) thereof, the European institutions which have intervened in the proceedings are to bear their own costs and the Court may order an intervener other than those referred to in Article 140(1) and (2) of those Rules of Procedure to bear its own costs. Furthermore, under Article 184(4) of the Rules of Procedure, an intervener at first instance that has not itself brought the appeal may be ordered to bear its own costs if it participated in the written or oral part of the proceedings before the Court. Therefore, the Parliament, the Council and the Commission are to bear their own costs.

115. On the basis of those provisions, the Österreichischer Sparkassenverband, the Fédération bancaire française and the Bundesverband deutscher Banken are to bear their own costs.

XI.    Conclusion

116. In the light of the foregoing considerations, I propose that the Court should:

(1)      Dismiss the appeals;

(2)      Order the effects of Decisions SRB/ES/2022/18 and SRB/ES/2023/23 of the Single Resolution Board to be maintained, in so far as those decisions concern, respectively, Dexia SA and BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG, until the entry into force of new acts intended to replace them and no later than 30 months from the delivery of the judgments in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P, C‑671/24 P and C‑705/24 P;

(3)      Order the Single Resolution Board to bear its own costs and to pay those incurred by Dexia and BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse;

(4)      Order the European Parliament, the Council of the European Union and the European Commission, as well as the Österreichischer Sparkassenverband, the Fédération bancaire française and the Bundesverband deutscher Banken eV, to bear their own costs.

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1      Original language: French.

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2      Regulation of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1; ‘the SRM Regulation’). ‘SRM’ is the abbreviation for ‘Single Resolution Mechanism’.

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3      See recitals 1 to 6 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/ECC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190; ‘the BRRD’). ‘BRRD’ is the abbreviation for ‘Bank Recovery and Resolution Directive’. See also Opinion of Advocate General Campos Sánchez-Bordona in State Street Bank International (C‑255/18, EU:C:2019:539, points 33 to 51).

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4      See recitals 15, 104 and 131 and Article 3 of the BRRD.

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5      See recitals 105 to 107 and Articles 102, 103 and 130 of the BRRD.

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6      See the second sentence of Article 102(1) of the BRRD.

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7      See Article 103(2) of the BRRD.

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8      See the second subparagraph of Article 103(2) and Article 103(7) of the BRRD, and Article 4 et seq. of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

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9      Proposal for a Regulation of the European Parliament and of the Council of 10 July 2013 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Bank Resolution Fund and amending Regulation (EU) No 1093/2010 of the European Parliament and of the Council (COM(2013) 520 final) (‘the proposal for the SRM Regulation’).

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10      See Article 4(1) of the SRM Regulation.

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11      See recitals 10 and 11 and Article 1 of the SRM Regulation.

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12      See Article 76(1) of the SRM Regulation.

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13      See Article 69(1) of the SRM Regulation. Point 35 of Article 3(1) of that regulation defines the target level as ‘the amount of available financial means to be reached under Article 69(1)’.

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14      See Article 70(1) of the SRM Regulation.

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15      See Article 70(2) of the SRM Regulation.

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16      See Article 70(6) of the SRM Regulation.

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17      See Article 69(2) and (5) of the SRM Regulation.

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18      Commission Delegated Regulation of 17 December 2015 supplementing Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to the criteria relating to the calculation of ex ante contributions, and on the circumstances and conditions under which the payment of extraordinary ex post contributions may be partially or entirely deferred (OJ 2017 L 113, p. 2).

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19      See Article 70(2) of the SRM Regulation. It must be noted that that resolution mechanism is modelled to a great extent on the mechanism which national resolution authorities are required to establish in accordance with the BRRD, although the mechanism established by the BRRD did not set a 12.5% cap.

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20      EUR 79 987 450 580 (see judgment under appeal (paragraph 61) and recital 60 of the 2022 SRB decision).

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21      See recitals 48, 49, 60 and 61 of the 2022 SRB decision.

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22      EUR 14 253 573 821.46 (see recital 62 of the 2022 SRB decision).

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23      EUR 77 602 386 743.7 (see recital 47 of the 2023 SRB decision).

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24      EUR 11 702 958 514.31 (see recitals 78 and 80 of the 2023 SRB decision).

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25      See recitals 49, 77, 78 and 80 of the 2023 SRB decision.

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26      The judgment under appeal (paragraphs 30 to 38).

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27      The judgment under appeal (paragraphs 34 to 47).

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28      The judgment under appeal (paragraphs 49 to 54).

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29      The judgment under appeal (paragraphs 55 to 57).

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30      The judgment under appeal (paragraph 48).

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31      The judgment under appeal (paragraphs 60 to 65).

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32      The judgment under appeal (paragraphs 70 to 75).

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33      The order under appeal (paragraphs 26 to 37).

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34      The order under appeal (paragraphs 38 to 45).

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35      Judgment of 13 June 1958 (9/56, ‘the judgment in Meroni’, EU:C:1958:7, p. 152), in which the Court held, in essence, that the delegation of a discretionary power, which implies a wide margin of discretion and may, according to the use which is made of it, make possible the execution of actual economic policy, replaces the choices of the delegator by the choices of the delegatee and brings about an actual transfer of responsibility. Such a delegation of power would render ineffective the fundamental guarantee of the balance of powers, which is characteristic of the institutional structure of the European Union.

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36      The Council refers inter alia to the judgments of 14 November 2019, State Street Bank International (C‑255/18, ‘the judgment in State Street Bank International’, EU:C:2019:967, paragraphs 41 to 44), and of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, ‘the judgment in Commission v Landesbank Baden-Württemberg and SRB’, EU:C:2021:601, paragraph 113).

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37      In that regard, the SRB explains that, if compliance with the 12.5% cap had to be determined by reference to the final target level known at the end of the initial period established on 31 December 2023, it would have levied, on average, each year, 12.15% of that target level.

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38      See point 4.3.2. of the explanatory memorandum to the proposal for the SRM Regulation.

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39      See, more specifically, Article 102(1) of the BRRD.

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40      As provided for, respectively, in Article 8(2) of Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1), and Article 17(3) and (4) of Delegated Regulation 2015/63.

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      In that regard, the SRB explains that, in each year of the initial period, as a result of those deductions and revisions, the actual total amount of the contributions raised from all of the institutions in the course of a given contribution cycle was lower than the annual target level estimated by the SRB. While, during the 2023 contribution period, both the annual target level and the actual total amount of contributions raised exceeded the 12.5% cap of the forecast final target level, that was not the case for all the other contribution cycles. In some years, only the annual target level was above 12.5% of the forecast final target level, whilst the actual total amount of contributions raised complied with that cap.

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41      Dexia also contends that the SRB’s claim concerning the account taken of incorrect review criteria is inadmissible because it lacks clarity.

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42      BAWAG expresses reservations as to the admissibility of the appeal brought by the SRB against the order under appeal, since it seeks only to challenge a subsidiary assessment, relating to the target level, which the General Court made in the judgment under appeal, without addressing the issue of whether the 12.5% cap may be applied flexibly during the initial period.

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43      See point 4.3.2. of the explanatory memorandum to the proposal for the SRM Regulation.

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44      See recital 62 of the 2022 SRB decision.

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45      See the judgment under appeal (paragraph 63). The deductions in question take account of the amount of the contributions already paid by the institutions on the basis of the BRRD (see Article 8(2) of Implementing Regulation 2015/81).

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46      See recitals 78 and 80 of the 2023 SRB decision.

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47      See SRB press release of 15 February 2024, entitled ‘Single Resolution Fund: no expected contribution in 2024 as target level reached’, available at the following address: https://www.srb.europa.eu/en/content/single-resolution-fund-no-expected-contribution-2024-target-level-reached.

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48      The arguments put forward by Dexia and BAWAG alleging that some of the claims raised in support of the present appeals are inadmissible must, in my view, be rejected. The SRB’s claim based on the account taken of incorrect review criteria can be understood as concerning, in essence, the fact that the General Court failed to take account of matters of fact and of law existing during the 2022 contribution period. In addition, it must be observed that the SRB explicitly takes a view on the applicability of the 12.5% cap rule during the initial period and on the flexible interpretation thereof.

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49      See judgment of 3 September 2024, Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:677, paragraph 116 and the case-law cited).

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50      See judgment of 3 September 2024, Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:677, paragraphs 126 and 127 and the case-law cited).

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51      Emphasis added.

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52      See, in that regard, European Banking Authority, Technical advice on the delegated acts on the initial period of the single resolution fund under Article 69 of the SRM Regulation, EBA/Op/2015/11, 10 June 2015, p. 3, available at the following address: https://www.eba.europa.eu/sites/default/files/documents/10180/983359/cb8c4be8-69b0-4f44-aae9-eb16e732ad3a/EBA-Op-2015-11%20Technical%20Advice%20on%20Art%2069.pdf.

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53      Emphasis added.

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54      At the hearing, the question was raised as to whether the words ‘target level’ contained in the first and fourth subparagraphs of Article 70(2) of the SRM Regulation were to be given the same meaning. I am unsure whether it is essential to determine whether that is an intentional repetition of the same rule or whether that concept should be understood, in the first subparagraph of that provision, as referring to the target level ‘estimated’ each year of the initial period, whereas the fourth subparagraph of that provision refers to the ‘actual’ and known target level at the end of that period. On that second reading, if the contributions raised by the SRB each year of the initial period have not exceeded 12.5% of each target level estimated annually, it is hard to see how the aggregate contributions could exceed the 12.5% cap of the target level actually reached, unless the latter level is regarded as having proven to be lower than the target levels estimated during the initial period. Furthermore, I wonder what might be the consequences of the finding that some of the ex ante contributions exceeded the 12.5% cap of the actual target level. In my view, the key question arising at the end of the initial period is primarily whether or not the SRF raised at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States.

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55      Emphasis added.

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56      See, to that effect, Opinion of Advocate General Richard de la Tour in Joined Cases Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:330, points 95 to 98), and Opinion of Advocate General Kokott in ABLV Bank v SRB (C‑202/21 P, EU:C:2022:327, point 54).

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57      Similarly, despite the position taken by it in writing, the Council stated at the hearing that, ‘on the basis of the forecast target level, the SRB uses that 12.5% cap and applies it to that forecast, therefore from one year to the next’.

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58      See point 4.3.2 of the proposal for the SRM Regulation.

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59      I would add that the reference to ‘covered’ deposits was also introduced in the course of the legislative process (see Council Report of 27 March 2014 on the Single Resolution Mechanism (2013/0253 (COD)), Brussels, 8078/14 ADD 1 REV 1, p. 137, available at the following address: https://data.consilium.europa.eu/doc/document/ST‑8078-2014-ADD-1-REV-1/en/pdf).

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60      See point 4.3.2. of the proposal for the SRM Regulation (emphasis added).

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61      See Article 102(1) and (2) of the BRRD and Article 65(1) and (2) of the proposal for the SRM Regulation, which became Article 69(1) and (2) of the SRM Regulation.

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62      See note from the Council of 17 December 2013 on the proposal for a Regulation of the European Parliament and of the Council establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (2013/0253(COD)), Brussels, 17742/13, pp. 144 to 145: ‘Each year … national resolution authorities shall calculate the individual contributions to ensure that the contributions due by all the institutions authorised in the territories of the participating Member States shall amount to 10% of the target level’ (available at the following address: https://data.consilium.europa.eu/doc/document/ST‑17742-2013-INIT/en/pdf) (emphasis added).

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63      ‘In any case, the aggregate amount of individual contributions by all the institutions authorised in the territories of the participating member States, calculated under letters (a) and (b), shall not exceed annually the 10% of the target level’ (emphasis added).

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64      See Council Report of 27 March 2014 on the Single Resolution Mechanism (2013/0253 (COD)), Brussels, 8078/14 REV 1, pp. 1 to 3, available at the following address: https://data.consilium.europa.eu/doc/document/ST‑8078-2014-REV-1/en/pdf.

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65      See Council Report of 27 March 2014 on the Single Resolution Mechanism (2013/0253 (COD)), Brussels, 8078/14 ADD 1 REV 1, in relation to new first subparagraph of Article 66(1a): Each year the Board, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities shall calculate the individual contributions to ensure that the contributions due by all the institutions authorised in the territories of all the participating Member States shall not exceed 12.5% of the target level’ (emphasis added in the text).

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66      I would also observe that, unlike the proposal for the SRM Regulation and the text of the final version of that regulation, the BRRD provides, moreover, for the possibility for Member States to ‘set target levels in excess of [the] amount’ of ‘at least 1% of the amount of covered deposits of all the institutions authorised in their territory’ (see Article 102(1) of the BRRD).

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67      See, a contrario, Article 103(2) of the BRRD.

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68      See, by analogy, judgment of 1 June 1961, Simon v Court of Justice (15/60, EU:C:1961:11, p. 124), in which the Court took the view that the difference in wording between two texts is itself an argument capable of leading to the presumption that the authors of the new provision intended to amend the former criterion, since in the absence of evidence to the contrary it must be assumed that any difference in wording involves a difference in the scope if the new wording leads to a different interpretation.

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69      I would add that I support the questions raised by some of the interveners regarding the fact that determining compliance with the 12.5% cap solely in the light of the target level known at the end of the initial period would stand in the way of any genuine possibility for a banking institution to challenge the amount of contributions required by the SRB in the course of that period. What would happen if that cap was found to have been exceeded at the end of that period in the case of those SRB decisions that have become final?

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70      See European Banking Authority, Technical advice on the delegated acts on the initial period of the single resolution fund under Article 69 of the SRM Regulation, op. cit., pp. 9 and 10. I would add that the criteria for the spreading out in time of the ex ante contributions to the SRF, calculated pursuant to Article 69(2) of the SRM Regulation, were clarified by the Commission in Article 3 of Delegated Regulation 2017/747, in accordance with Article 69(5)(a) of the SRM Regulation.

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71      In that regard, I note that Article 4 of Delegated Regulation 2017/747, entitled ‘Criteria for determining the number of years by which the initial period can be extended’, provides, in point (a) of paragraph 1 thereof, that the minimum number of years required to reach the target level should be determined taking into account annual contributions not exceeding two times the average annual contributions over the initial period.

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72      I would point out in that regard that I do not agree with the credit institutions’ argument to the effect that the first sentence of Article 69(4) of the SRM Regulation could be interpreted as allowing, in principle, annual contributions to continue to be raised after the initial period if the target level has not been reached at the end of that period. It is apparent from the wording of that provision that it is intended to apply only provided that, ‘after the initial period’, the available financial means ‘diminish’ below the target level, which implies that that level has been reached at one time. The English- (‘If, after the initial period …, the available financial means diminish below the target level’), Spanish- (‘Si, pasado el período inicial …, los recursos financieros disponibles disminuyeran por debajo del nivel fijado como objetivo’), Italian- (‘Se, dopo il periodo iniziale …, i mezzi finanziari disponibili scendono al di sotto del livello-obiettivo’) and Dutch- (‘Indien de beschikbare financiële middelen … initiële periode dalen tot onder … streefbedrag’) language versions, inter alia, support that reading. The potentially divergent wording of the German- and Swedish-language versions cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard (see judgment of 26 March 2026, Pumpyanskiy and Others v Council (C‑696/23 P, C‑704/23 P, C‑711/23 P, C‑35/24 P and C‑111/24 P, EU:C:2026:245, paragraph 100 and the case-law cited)). Nor can it follow from recital 113 of that regulation that the EU legislature had envisaged extending the initial period other than in the cases expressly referred to in that regulation. The reference to the Commission’s power to adopt delegated acts vis-à-vis, inter alia, ‘the criteria for determining the number of years by which the initial period for reaching the target level can be extended’ concerns the situation covered by Article 69(3) of that regulation, those criteria having been set out in Article 4 of Delegated Regulation 2017/747.

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73      See recital 6 of Delegated Regulation 2017/747: ‘In accordance with Articles 67 and 69 of [the SRM Regulation], the [SRB] should ensure, during the initial period referred to in Article 69(1) of [that regulation], that contributions to the [SRF] are spread out in time as evenly as possible until the target level is reached and should extend the initial period for a maximum of four years in the event that the [SRF] has made cumulative disbursements in excess of 50% of the target level and where the criteria of this Regulation are met. Therefore, annual contributions raised in accordance with Articles 69(4) of [the SRM Regulation] may exceed 12.5% of the target level. If, after the initial period, the available financial means diminish below the target level, the [SRB] should ensure that regular ex ante contributions are raised until the target level is reached. After the target level has been reached for the first time and where the available financial means have subsequently been reduced to less than two-thirds of the target level, the [SRB] should ensure that those contributions are set at a level allowing for reaching the target level within six years. Therefore, the annual contributions referred to in the second sentence of Article 69(4) of [the SRM Regulation] may exceed 12.5% of the target level in order to reach the target level within six years’ (emphasis added).

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      That recital appears to me to contain a typo, at least in the French-language version thereof, since the first reference to the fact that the contributions raised may exceed the cap must, in my view, be understood as referring to Article 69(3) of the SRM Regulation, which concerns the extension of the initial period for a duration not exceeding four years, and not paragraph 4 of that article, to which reference is made later in the same terms in the same recital. Furthermore, it is my understanding that the words ‘dépasser le niveau cible de 12,5%’ (‘exceed the target level of 12.5%’) must be understood to mean ‘dépasser 12,5% du niveau cible’ (‘exceed 12.5% of the target level’), in accordance with the wording of Article 70(2) of that regulation.

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      See also European Banking Authority, Technical advice on the delegated acts on the initial period of the single resolution fund under Article 69 of the SRM Regulation, op. cit., p. 13.

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74      See judgment of 11 December 2025, ABLV Bank v SRB (C‑602/22 P, EU:C:2025:953, paragraph 80 and the case-law cited).

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75      See judgment of 13 November 2025, BNP Paribas Public Sector v SRB (C‑4/24 P, EU:C:2025:879, paragraph 59).

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76      See, to that effect, the judgment in Commission v Landesbank Baden-Württemberg and SRB (paragraph 113).

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77      See Opinion of Advocate General Kokott in ABLV Bank v SRB (C‑202/21 P, EU:C:2022:327, points 53, 54, 60, 65 and 66), in which she refers to Article 4(2) of Delegated Regulation 2015/63, which applies directly to the collection of contributions to the national financing arrangements and by analogy to the calculation of the ex ante contributions to the SRF (see Article 70(6) of the SRM Regulation). See also De Groen, W.P., and Oliinyk, I., ‘How to refine the contributions to the Single Resolution Fund? Proposal for an alternative methodology’, Centre for European Policy Studies, Brussels, December 2021, p. 13, available at the following address: https://cdn.ceps.eu/wp-content/uploads/2021/12/Refine-contributions-to-the-SRF.pdf; Single Resolution Board, 2020 Ex-ante contributions to the Single Resolution Fund (SRF) Questions and Answers, Brussels, 17 June 2020, Question 5, p. 3, available at the following address: https://www.srb.europa.eu/system/files/media/document/2020_questions_and_answers.pdf.

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78      In its defence in the case Hypo Vorarlberg Bank v SRB (2022 ex ante contributions) (T‑395/22, EU:T:2024:333), the SRB acknowledged that the objective of Article 70(2) of the SRM Regulation is to protect the institutions from excessive contributions (paragraph 96).

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      See also Sénat français (French Senate), 2014-2015 ordinary session, rapport no 307 fait au nom de la commission des finances sur le projet de loi autorisant la ratification de l’accord concernant le transfert et la mutualisation des contributions au Fonds de résolution unique (procédure accélérée) (Report No 307 drafted on behalf of the Finance Committee on the draft law authorising the ratification of the Agreement on the transfer and the mutualisation of the contributions to the Single Resolution Fund (Accelerated Procedure)), by Mr Albéric de Montgolfier, tabled on 4 March 2015, p. 41: ‘The Single Resolution Mechanism is key to guaranteeing the stability of the euro area, from the perspective both of protecting taxpayers and of giving greater credibility to all banks in the euro area. In that regard, the [SRF] plays a central role, because it forms a sort of “protective cushion”, mutualised across the euro area, which protects taxpayers from the consequences of a bank’s failure. In so doing, it represents an important step towards greater solidarity within the euro area, which guarantees its credibility and, therefore, is conducive to its financing. Establishing such solidarity is essential. It must, however, be achieved taking care not to hamper the banks’ capacity to finance the economy by adding to the – already weighty – prudential and fiscal burdens a disproportionate regulatory burden in the light, in particular, of the low probability of the Fund being used by French institutions’ (emphasis in the text) (available at the following address: https://www.senat.fr/rap/l14-307/l14-3071.pdf).

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79      See Opinion of Advocate General Richard de la Tour in Joined Cases Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:330, point 99).

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80      Emphasis added. See also orders of 3 March 2022, SRB v Portigon and Commission (C‑664/20 P, EU:C:2022:161, paragraph 78), and of 9 November 2023, Hypo Vorarlberg Bank v SRB (C‑663/20 P-DEP, EU:C:2023:862, paragraph 25), which refer to the judgment cited above.

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81      See the judgment in State Street Bank International (paragraphs 41 to 44).

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82      See Hesse, K., Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, C.F. Müller Verlag, Heidelberg, 1999, p. 28, No 72, and p. 142, No 318; De Schutter, O., and Tulkens, F., ‘Rights in Conflict: The European Court of Human Rights as a Pragmatic Institution’, in Conflicts Between Fundamental Rights, Brems, E. (ed.), Intersentia, Antwerp, 2008, pp. 169 to 216, in particular pp. 203 to 206; Marauhn, T., and Ruppel, N., ‘Balancing Conflicting Human Rights: Konrad Hesse’s Notion of “Praktische Konkordanz” and the German Federal Constitutional Court’, in Conflicts Between Fundamental Rights, Brems, E. (ed.), Intersentia, Antwerp, 2008, pp. 273 to 296, in particular pp. 279 to 281.

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83      See, by analogy, Opinion of Advocate General Emiliou in BSH Hausgeräte (C‑339/22, EU:C:2024:159, point 141).

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84      See, to that effect, Opinions of Advocate General Bobek in BV (C‑129/19, EU:C:2020:375, point 123) and in Ministère public (Extraterritorial penalties) (C‑906/19, EU:C:2021:178, point 54).

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85      See, by analogy, judgment of 2 October 2018, France v Parliament (Exercise of budgetary powers) (C‑73/17, EU:C:2018:787, paragraph 42), concerning rules of primary law.

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86      European Banking Authority, Technical advice on the delegated acts on the initial period of the single resolution fund under Article 69 of the SRM Regulation, op. cit., pp. 3 and 4.

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87      See, by analogy, the theory of unforeseeability in contract law, which allows account to be taken of certain changes in circumstances or economic upheavals. It is inter alia codified in Article 62 of the Vienna Convention on the Law of Treaties, which was signed on 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331, No 18232 (1980)) and entered into force on 27 January 1980. In Belgium, Article 16(2) of the cahier général des charges des marchés publics de travaux, de fournitures et de services et des concessions de travaux publics (General Conditions for Public Works, Public Supply, Public Service and Public Works Concession Contracts) of 26 September 1996 allows a government contractor to request the termination of the public contract or the revision of its terms if it suffers very significant damage on account of extraordinary and unforeseeable circumstances (see Van Ommeslaghe, P., De Page, Traité de droit Civil belge – Tome II : Les obligations, Vol. 1, Bruylant, Brussels, 2013, pp. 824 to 828, Nos 538 to 539). After being strictly rejected in civil law by the French and Belgian courts and tribunals, that theory was enshrined in France by Article 1195 of the code civil (Civil Code) in 2016, and in Belgium by Article 5.74 of the code civil (Civil Code) in 2023. It also appears, to some extent, to be gaining ground in Luxembourg case-law (see Philippe, D., ‘La théorie de l’imprévision. Étude de droit luxembourgeois, de droit comparé et de jurisprudence arbitrale’, Annales du droit luxembourgeois, Vol. 25, 2015, Bruylant, Brussels, 2016, pp. 45 to 56).

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88      In 2020, the SRB stated that it had ‘taken into due account the currently deteriorating economic situation driven by the COVID-19 pandemic and its potential consequences’, but acknowledged that it was ‘not possible to determine how the shock [was going] to affect the evolution of covered deposits in the Banking Union going forward’ (see Single Resolution Board, 2020 Ex-ante contributions to the Single Resolution Fund (SRF) Questions and Answers, op. cit., Question 6, p. 4).

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89      European Banking Authority, Technical advice on the delegated acts on the initial period of the single resolution fund under Article 69 of the SRM Regulation, op. cit., p. 4.

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90      Single Resolution Board, 2024 List of consultations and requests to the industry: ‘Consultation on preliminary amounts of the ex-ante contributions (only in case the target level is not reached and therefore 2024 contributions are collected) and consultation on preliminary amounts for restatements’ and ‘Consultation on the modalities of payment of ex-ante contributions (only in case the target level is not reached)’, available at the following address: https://www.srb.europa.eu/system/files/media/document/2024-02-07_SRB-2024-List-of-consultations-and-requests-to-the-industry.pdf.

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91      SRB press release of 15 February 2024, entitled ‘Single Resolution Fund: no expected contribution in 2024 as target level reached’, available at the following address: https://www.srb.europa.eu/en/content/single-resolution-fund-no-expected-contribution-2024-target-level-reached.