ECLI:EU:C:2026:724•Opinion of Advocate General Spielmann delivered on 8 September 2026.###
Opinion of Advocate General Spielmann delivered on 8 September 2026.###
ECLI:EU:C:2026:724Eu CjeuSep 8, 2026
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OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 8 September 2026 (1)
Cases C‑529/24 P, C‑536/24 P, C‑537/24 P and C‑585/24 P
Council of the European Union
v
Hypo Vorarlberg Bank AG,
Single Resolution Board (C‑529/24 P),
and
Single Resolution Board
v
Hypo Vorarlberg Bank AG (C‑536/24 P),
and
Single Resolution Board
v
Volkskreditbank AG (C‑537/24 P)
and
Council of the European Union
v
Volkskreditbank AG,
Single Resolution Board (C‑585/24 P)
( Appeal – Economic and monetary union – Banking union – Single resolution mechanism for credit institutions and certain investment firms – Single Resolution Fund – Decision on the calculation of the ex ante contributions for the 2022 contribution period – Article 291(2) TFEU – Implementing powers conferred on the Council – Justification for the conferral of power – Article 70(7) of Regulation (EU) No 806/2014 – Article 8(1) of Implementing Regulation (EU) 2015/81 – Limits on the implementing powers – Article 69 of Regulation 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 – Limitation of the temporal effects of an annulment )
Table of contents
I. Introduction
II. Legal framework
A. The Intergovernmental Agreement
B. Directive 2014/59/EU (BRRD)
C. Delegated Regulation (EU) 2015/63
D. The SRM Regulation
E. Implementing Regulation (EU) 2015/81
III. Preliminary observations
IV. Background to the dispute
V. The 2022 SRB decision
VI. Procedures before the General Court and judgments under appeal
VII. Procedures before the Court and forms of order sought
VIII. The appeals
A. The first ground of appeal
1. Arguments of the SRB and the EU institutions
2. Arguments of the credit institutions
3. Assessment
B. The second ground of appeal
1. Arguments of the SRB and the EU institutions
2. Arguments of the credit institutions
3. Assessment
(a) Examination of cumulative conditions
(b) Compliance by Article 8(1) of Implementing Regulation 2015/81 with the prohibition on supplementing or amending the content of the SRM Regulation
C. The third ground of appeal
1. Arguments of the SRB and the EU institutions
2. Arguments of the credit institutions
3. Assessment
IX. Maintaining the temporal effects
A. Arguments of the parties
B. Assessment
X. Costs
Conclusion
I. Introduction
1. This Opinion concerns appeals brought by the Council of the European Union and the Single Resolution Board (SRB) seeking to have set aside the judgments of the General Court of the European Union of 29 May 2024, Hypo Vorarlberg Bank v SRB (2022 ex ante contributions) (T‑395/22, EU:T:2024:333), and of 3 July 2024, Volkskreditbank v SRB (2022 ex ante contributions) (T‑406/22, EU:T:2024:439) (‘the judgments under appeal’).
2. By those judgments, 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 Hypo Vorarlberg Bank AG and Volkskreditbank AG, and maintained the effects of that decision until the measures necessary to implement those judgments have been taken, which must occur within a reasonable period that cannot exceed 12 months from the day on which those same judgments became final.
3. The present cases call on the Court of Justice to determine, in the first place, whether the conferral of an implementing power on the Council was duly justified; in the second place, whether or not the Council exceeded the implementing power conferred on it; in the third place, whether the General Court erred in law in its 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 fourth place, whether the General Court could legitimately suspend the temporal effects of the judgments under appeal.
II. Legal framework
A. The Intergovernmental Agreement
4. Article 5(1)(a) of the Intergovernmental Agreement (3) provides inter alia that, where recourse to the SRF is decided, during the first year of the transitional period, recourse is to be had to all the financial means available within the compartment corresponding to the Contracting Parties where the institution or the group under resolution is established or authorised. During the second and third year of that period, recourse is to be had to 60% and 40% respectively of those means, and during the subsequent years of the transitional period the availability of the financial means in the compartments corresponding to the relevant Contracting Parties is to decrease annually by 62/3 percentage points.
B. The BRRD
5. Article 103(7) of Directive 2014/59/EU (4) provides that the European Commission is to be empowered to adopt delegated acts in order to specify the notion of ‘adjusting contributions in proportion to the risk profile of institutions’, ‘taking into account all of the following:
…
(c) the financial condition of the institution;
…
(g) the importance of the institution to the stability of the financial system or economy of one or more Member States or of the Union;
…’
C. Delegated Regulation (EU) 2015/63
6. Under Article 4 of Delegated Regulation (EU) 2015/63 (5):
‘1. The resolution authorities shall determine the annual contributions to be paid by each institution in proportion to its risk profile on the basis of information provided by the institution in accordance with Article 14 and by applying the methodology set out in this Section.
2. The resolution authority shall determine the annual contribution referred to in paragraph 1 on the basis of the annual target level of the resolution financing arrangement by taking into account the target level to be reached by 31 December 2024 in accordance with paragraph 1 of Article 102 of [the BRRD] and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, of all the institutions authorized in its territory.’
D. The SRM Regulation
7. Article 70 of the SRM Regulation, entitled ‘Ex-ante contributions’, provides:
‘1. The individual contribution of each institution shall be raised at least annually and shall be calculated pro-rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits, of all of the institutions authorised in the territories of all of the participating Member States.
2. …
Each year the calculation of the contributions for individual institutions shall be based on:
(a) a flat contribution, that is pro-rata based on the amount of an institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the participating Member States; and
(b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of [the BRRD], taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.
…
6. The delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of [the BRRD], shall be applied.
7. The Council, acting on a proposal from the Commission, shall, within the framework of the delegated acts referred to in paragraph 6, adopt implementing acts to determine the conditions of implementation of paragraphs 1, 2 and 3, and in particular in relation to:
(a) the application of the methodology for the calculation of individual contributions;
(b) the practical modalities for allocating to institutions the risk factors specified in the delegated act.’
E. Implementing Regulation (EU) 2015/81
8. Article 4 of Implementing Regulation (EU) 2015/81 (6) provides:
‘For each contribution period, the Board shall calculate the annual contribution due from each institution, on the basis of the annual target level of the Fund, after consulting the [European Central Bank (ECB)] or the national competent authorities and in close cooperation with the national resolution authorities. The annual target level shall be established with reference to the target level of the Fund referred to in Articles 69(1) and 70 of [the SRM Regulation] and in accordance with the methodology set out in Delegated Regulation [2015/63].’
9. Under Article 8(1) of that implementing regulation, during the initial period referred to in Article 69(1) of the SRM Regulation, and by way of derogation from Article 4 of the Implementing Regulation, the annual contributions of the institutions are to be calculated in accordance with the following adjusted methodology (‘the adjusted method of calculation’):
‘(a) in the first year of the initial period, those institutions shall contribute 60% of their annual contributions calculated in accordance with Article 103 of [the BRRD] and Article 4 of Delegated Regulation [2015/63], and 40% of their annual contributions calculated in accordance with Articles 69 and 70 of [the SRM Regulation] and Article 4 of this Regulation;
…
(g) in the seventh year of the initial period, those institutions shall contribute 6.67% of their annual contributions calculated in accordance with Article 103 of [the BRRD] and Article 4 of Delegated Regulation [2015/63], and 93.33% of their annual contributions calculated in accordance with Articles 69 and 70 of [the SRM Regulation] and Article 4 of this Regulation;
…’
III. Preliminary observations
10. 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. (7)
11. 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. (8) 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. (9) Furthermore, Member States were permitted to set a target level in excess of that amount. (10) 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. (11) 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. (12)
12. To push further ahead with the integration of the resolution framework, the SRM Regulation, the proposed text (13) 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’). (14) To that end, that regulation created a single resolution mechanism, the rules and procedures of which the SRB is responsible for applying, (15) and provides inter alia for the establishment of an SRF to ensure the effective application of the resolution tools. (16) 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’). (17) 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. (18) 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 (19) as well as in Delegated Regulation 2015/63 as the tool specifying the notion of ‘adjusting contributions in proportion to the risk profile’. (20) The SRM Regulation also provides that, 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’). (21)
13. Since the participating Member States are bound both by the BRRD and the SRM Regulation, the latter provides that, where the SRB performs tasks and exercises powers which, pursuant to the BRRD, are to be performed or exercised by the national resolution authority, the SRB is to be considered to be the relevant national resolution authority. (22) However, the participating Member States which raise contributions from the institutions located in their respective territories in accordance with the BRRD and that regulation remain competent to transfer those contributions to the SRF. In that regard, the Intergovernmental Agreement lays down the obligation to transfer to the SRF the contributions raised at national level up to the date of application of that same regulation. (23) In addition, in order to reinforce the financial capacity of the SRF as of its inception, the Contracting Parties committed to transfer in full to the SRF the contributions raised by virtue of the BRRD. (24) That agreement further provides for the allocation, during a transitional period, (25) of the contributions raised at national level to different compartments corresponding to each participating State, as well as the progressive mutualisation of the use of those compartments in such a manner that they will cease to exist at the end of the transitional period. (26)
14. Lastly, relying on Article 70(7) of the SRM Regulation, the Council adopted Implementing Regulation 2015/81. It established therein an adjusted methodology for the calculation of individual contributions in order to bring the calculation of individual contributions into line with the pace of mutualisation of the financial means in case of recourse to the SRF during the initial period. To that end, the calculation of contributions to be allocated to the mutualised part of the national compartments within the SRF relies on the criteria laid down in the SRM Regulation, whereas the calculation of contributions to be allocated to the non-mutualised part of compartments relies on the criteria laid down in the BRRD. (27)
IV. Background to the dispute
15. The background to the dispute is set out in paragraphs 2 to 4 of the judgments under appeal. It may be summarised as follows.
16. Hypo Vorarlberg Bank and Volkskreditbank are credit institutions established in Austria. By the 2022 SRB decision, 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’) of the institutions covered by Article 2 together with Article 67(4) of that regulation, including Hypo Vorarlberg Bank and Volkskreditbank.
17. By an assessment notice of 22 April 2022, the Finanzmarktaufsichtsbehörde (Financial Markets Supervisory Authority, Austria), in its capacity as the national resolution authority within the meaning of Article 3(1)(3) of that regulation, ordered Hypo Vorarlberg Bank and Volkskreditbank to pay their ex ante contributions for the 2022 contribution period, as set by the SRB.
V. The 2022 SRB decision
18. In its 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. (28) In view of the available financial means of approximately EUR 52 billion, and in order to reach 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. (29)
19. Since the 2022 cycle was the penultimate cycle of the initial period, the SRB took the view that it had limited leeway to plug, in a timely manner, that projected gap of EUR 28 billion between the financial means currently available in the SRF and the target level of approximately EUR 80 billion expected at the end of the initial period. Accordingly, it set the amount of the total contributions to the SRF for the 2022 contribution period at approximately EUR 14 billion. (30)
20. Next, the SRB described the method used to calculate the ex ante contributions for the 2022 contribution period. It stated, inter alia, that, for that seventh year of the initial period, 6.67% of the ex ante contributions were calculated on the ‘national base’, that is to say, on the basis of the data communicated by institutions authorised in the territory of the participating Member State concerned (‘the national base’), in accordance with Article 103 of the BRRD and Article 4 of Delegated Regulation 2015/63. It added that the remainder of the ex ante contributions (93.33%) was calculated on the ‘banking union base’, that is to say, on the basis of the data communicated by all of the institutions authorised in the territories of all of the participating Member States (‘the union base’), in accordance with Articles 69 and 70 of the SRM Regulation and Article 4 of Implementing Regulation 2015/81. (31)
VI. Procedures before the General Court and judgments under appeal
21. By their applications lodged at the Registry of the General Court on 27 June 2022 and 1 July 2022 respectively, Hypo Vorarlberg Bank and Volkskreditbank brought an action for the General Court, on the basis of the fourth paragraph of Article 263 TFEU, to annul the 2022 SRB decision in so far as it concerns them. In support of their action, Hypo Vorarlberg Bank and Volkskreditbank raised eight plea in law.
22. By the judgments under appeal, the General Court upheld the action brought by Hypo Vorarlberg Bank and Volkskreditbank. (32)
23. In that regard, the General Court, in the first place, upheld the plea of illegality raised pursuant to Article 277 TFEU and declared Article 70(7) of the SRM Regulation inapplicable, on the ground that that provision confers, contrary to Article 291(2) TFEU, implementing powers on the Council without such conferral being duly justified. (33)
24. In the second place, the General Court upheld the plea of illegality in respect of Article 8(1) of Implementing Regulation 2015/81, finding that, in adopting that provision, the Council exceeded the implementing powers conferred on it pursuant to Article 70(7) of the SRM Regulation, by altering the methodology for the calculation of ex ante contributions established by that regulation. (34)
25. In the third place, the General Court found that the 2022 SRB decision 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 that year at approximately EUR 80 billion. (35)
26. In the fourth place, in view of the fact that one of the grounds for annulment of the 2022 SRB decision concerned the illegality of Article 70(7) of the SRM Regulation and of Implementing Regulation 2015/81, the General Court granted the SRB’s request that the effects of that decision be maintained, in so far as it concerns Hypo Vorarlberg Bank and Volkskreditbank, until the measures necessary to implement the judgments under appeal have been taken, which must occur within a reasonable period that cannot exceed 12 months from the day on which those judgments became final. (36)
VII. Procedures before the Court and forms of order sought
27. By their appeals brought before the Court, the Council and the SRB, supported in the forms of order sought by them by the European Parliament, intervener at first instance, and the Commission, intervener in the appeal, claim that the Court should:
– set aside the judgments under appeal;
– dismiss the action or, in the alternative, refer the cases back to the General Court;
– order Hypo Vorarlberg Bank and Volkskreditbank to pay the costs;
– in the further alternative, maintain the effects of the 2022 SRB decision for a period of 30 months from the date on which the judgments of the Court become final.
28. Hypo Vorarlberg Bank, supported in the form of order sought by it by the Österreichischer Sparkassenverband (Association of Austrian Savings Banks), intervener in the appeal, and Volkskreditbank contend that the appeals should be dismissed and the appellants ordered to pay the costs.
29. By orders of the President of the Court of 30 June 2025, the Bundesverband deutscher Banken eV (Federal Association of German Banks) and the Fédération bancaire française (French Banking Federation) were granted leave to intervene at the hearing in support of the form of order sought by Hypo Vorarlberg Bank and Volkskreditbank.
30. 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
31. In support of their appeals, the appellants essentially rely on three grounds of appeal, alleging that the General Court erred in law in finding, in the first place, that the SRM Regulation does not contain any justification for the conferral of implementing powers on the Council by Article 70(7) of that regulation and, in the second place, that, in adopting Article 8(1) of Implementing Regulation 2015/81, the Council had exceeded those powers thus conferred. In the third place, the General Court misinterpreted and infringed Article 69(1) and Article 70(2) of the SRM Regulation in holding that the 12.5% cap had to be observed in all circumstances, to the detriment of the target level to be reached at the end of the initial period.
A. The first ground of appeal
1. Arguments of the SRB and the EU institutions
32. The appellants claim that, in paragraphs 32 to 43 of the judgments under appeal, the General Court erred in law in finding that the conferral of implementing powers on the Council by Article 70(7) of the SRM Regulation (‘the implementing power concerned’) had not been duly justified in accordance with Article 291(2) TFEU.
33. In that regard, they argue that the EU legislature observed the case-law of the Court, according to which the requirement to provide a detailed statement of reasons why the Council is entrusted with the adoption of measures implementing a legally binding act of the European Union must be assessed by reference to the nature and content of the basic instrument to be implemented or amended, and to the context in which that instrument was adopted, and that a general and succinct statement of reasons may be sufficient. (37)
34. It is true that recital 114 of the SRM Regulation does not explicitly state the reasons why the implementing power concerned was conferred on the Council and not on the Commission. However, it does set out the material grounds for the conferral of implementing powers on the Council, according to which the EU legislature considered it ‘necessary’ to adopt implementing acts to specify the application of the methodology for the calculation of individual contributions to the SRF, as well as the technical modalities for computing the flat contribution and the risk-adjusted contribution. It also stated that implementing powers ‘should’ be conferred on the Council, in order inter alia to ‘take into account the principle of proportionality, without creating distortions between banking sector structures of the Member States’, as is confirmed by Article 70(2)(b) of that regulation.
35. Furthermore, that justification contained in recital 114 of that regulation is clarified by the historical context in which that same regulation was adopted. Thus, the purpose of the SRM Regulation is to consolidate the integration of the resolution framework into the banking union, which entails a risk of distortions between participating and non-participating Member States. The implementing power concerned therefore falls under a sensitive area for all Member States, on account of the direct and immediate impact which the methodology for the calculation of individual contributions has on the amount of the contributions raised in each participating Member State, the possible distortions between banking sector structures which the implementing measures may cause, and the potentially significant impact of those measures on the budgetary sovereignty of the Member States and on the financial stability of the Member States and of the European Union as a whole. The conferral on the Council of the implementing power concerned is therefore also justified having regard to the role of the Council within the European Union in general and the Single Resolution Mechanism in particular, composed as it is of representatives of all the Member States with specific expertise in relation to their national banking sector.
36. In addition, account should be taken of the broader systemic context of Article 70(7) and recital 114 of the SRM Regulation. Recitals 12, 19 and 20 of that regulation thus also set out the considerations underlying the financing of the SRF and the calculation of the contributions as well as the particular sensitivity of those matters for all the Member States and the need not to impinge on the Member States’ budgetary sovereignty. Recital 24 of the same regulation illustrates the Council’s implementing powers as regards the taking of decisions that may have a significant impact on the financial stability of the Member States and of the European Union. Article 70(6) of the SRM Regulation, by its reference to Article 103(7)(g) of the BRRD, expresses the importance of ex ante contributions for the stability of the financial system or the economy of the Member States and of the European Union, and point (b) of the second subparagraph of Article 70(2) of that regulation explicitly points to the importance of avoiding distortions between banking sector structures of the Member States and the need to take into account the principle of proportionality when adopting implementing acts governing the application of the method of calculation.
37. Lastly, the references to the Intergovernmental Agreement, contained inter alia in recitals 19 and 20 of that regulation and in the third paragraph of Article 1 and Articles 67 and 77 thereof establish the close link between those two instruments and the need to ensure consistency between the method for the calculation of individual contributions, which are to be raised in each participating Member State, and the progressive mutualisation of Member States’ contributions to the SRF provided for by that agreement, as is, moreover, made expressly clear in recitals 14 and 15 of Implementing Regulation 2015/81. That agreement is therefore an integral part of the legal framework governing the financing and the use of the SRF. It confirms the potentially significant impact that the implementing measures may have on the Member States and on their budgets, which is why the implementing power concerned was conferred on the Council.
38. The appellants therefore conclude that the General Court was wrong, in paragraph 38 of the judgments under appeal, in finding that there was ‘no reasoning’ from which it is apparent that the conferral of the implementing power concerned on the Council was justified by a specific role and, in paragraphs 39 and 40 of those judgments, to state that that same agreement was not a relevant contextual factor in that regard.
39. The Parliament essentially puts forward some of the same arguments as the appellants to take the view that the justification for the grant of the relevant implementing power to the Council is sufficiently clear from the relevant provisions of the SRM Regulation and its legislative context, and the Commission takes the view that the General Court failed to take due account of the entirety of the body of rules applicable for the purpose of assessing the contextual statement of reasons for that grant of power.
2. Arguments of the credit institutions
40. Hypo Vorarlberg Bank and Volkskreditbank, supported at the hearing by the Bundesverband deutscher Banken, are of the view that the conferral of the implementing power concerned on the Council is contrary to the requirements under Article 291(2) TFEU, read in conjunction with the second paragraph of Article 296 TFEU. It is irrelevant whether it was ‘necessary’ or ‘appropriate’ to delegate implementing powers to the Council.
41. In that regard, they essentially argue that, while the recitals of the SRM Regulation to which the appellants refer do mention the need to avoid distortions between the banking sector structures of the different Member States and to maintain financial stability, they explain only the reasons why an implementing regulation concerning the methodology for the calculation of contributions had to be adopted and do not mention the role of the Council in relation to that calculation. As for the Intergovernmental Agreement, it cannot be relied on to justify the conferral of implementing powers on the Council, since that agreement does not concern the calculation of contributions by the SRB from 2016 onwards, but rather the transfer of the contributions previously raised at national level. Furthermore, the obligation to justify the conferral of such powers is a matter for the body which adopted the basic act to be implemented.
42. At the hearing, Hypo Vorarlberg Bank and Volkskreditbank, supported by the Bundesverband deutscher Banken, added that the origin of the SRM Regulation also cannot support the view that the conferral of the implementing power concerned on the Council was duly justified, since a clear and uniform justification is not provided in the decision to replace the delegated power originally conferred on the Commission with an implementing power in favour of the Council.
3. Assessment
43. With regard to the grant of an implementing power, I note that Article 291(1) TFEU sets out that Member States are to adopt all measures of national law necessary to implement legally binding EU acts. However, as provided for in paragraph 2 of that article, where uniform conditions for implementing legally binding EU acts are needed, those acts are to confer implementing powers on the Commission or, in duly justified specific cases and in the context of the common foreign and security policy (CFSP), on the Council.
44. Prior to the adoption of Article 291(2) TFEU, Article 145 EEC, which became Article 202 EC, as amended by the Single European Act, provided that the Council could ‘reserve the right, in specific cases, to exercise directly implementing powers itself’. (38) Although the wording of the latter two provisions did not explicitly lay down the obligation on the Council to state the reasons for reserving such powers, as early as 1989, the Court held that the Council could reserve implementing powers only exceptionally and provided that it gave detailed reasons for doing so. (39)
45. Thus, the Court stated that the third indent of Article 145 EEC, which corresponds to Article 291(2) TFEU, was to be interpreted as requiring the Council, when it acts as legislature, to state in detail the grounds for the decision to reserve implementing powers to itself. (40)
46. The third indent of Article 202 EC, which replaced the third indent of Article 145 EEC, was also the subject of interpretation by the Court in the judgments in Commission v Council (41) and of 6 May 2008 in Parliament v Council, (42) in which it stated that the Council, as the body which adopted the basic act, must properly explain, by reference to the nature and the content of the basic instrument to be implemented or amended, (43) why an exception is being made to the rule that, under the system established by the Treaty, when measures implementing a basic act need to be taken at Community level, it is the Commission which, in the normal course of events, is responsible for exercising that power. That requirement has its origin in Article 253 EC, now the second paragraph of Article 296 TFEU, which provides for a general obligation to state the reasons for all acts adopted by the institutions. (44)
47. Unlike the third indent of Article 145 EC and the third indent of Article 202 EC, Article 291(2) TFEU expressly requires the bodies which adopt a basic act and choose to confer an implementing power on the Council, other than in cases relating to the CFSP, to duly justify that choice. (45) In view of the explicit inclusion of that requirement to state reasons in the current wording of the Treaty, the Court has confirmed its case-law in that regard. (46)
48. In the present case, it is for the Court of Justice to examine whether the General Court did not err in law when it, essentially, found that it is not apparent from Article 70(7) of the SRM Regulation, read in conjunction with the various contextual factors upon which the appellants rely, that the conferral of the implementing power concerned on the Council was duly justified within the meaning of Article 291(2) TFEU.
49. As set out in points 32 to 39 of this Opinion, the appellants, supported by the Parliament and the Commission, refer explicitly to recital 114 of the SRM Regulation, which sets out the substantive reasons for the conferral of the implementing power on the Council; to the historical context in which that regulation was adopted, relating to the integration of the resolution framework into the banking union and to the risk of distortions between banking sector structures, and to the role of the Council, composed as it is of representatives of all Member States, who have specific expertise in relation to their national banking sector, in that sensitive area which concerns the financial stability of the Member States and of the European Union. According to the appellants, such contextual factors are essentially apparent from recitals 12, 19, 20 and 24 of that same regulation, from Article 70(6) of that regulation, by its reference to Article 103(7)(g) of the BRRD, and from point (b) of the second subparagraph of Article 70(2) of that regulation. The appellants also rely on recitals 19 and 20 of that regulation, on the third paragraph of Article 1 and Articles 67 and 77 thereof and on recitals 14 and 15 of Implementing Regulation 2015/81 with a view to establishing the link between the SRM Regulation and the Intergovernmental Agreement.
50. I must confess that I am not without sympathy for the explanations thus presented by the appellants in their written pleadings before the Court, and at the hearing, seeking to justify the Council’s intervention on account of the link between the composition of the Council and the expertise of its Members, and the role of that institution in the light, inter alia, of the impact that the calculation of the contributions may have on the financial stability and the economic position of the institutions within the participating Member States.
51. However, I cannot waiver from my belief that such explanations are not clearly apparent from the recitals of the SRM Regulation, from the articles of that regulation, or from the other provisions to which the appellants refer.
52. First of all, it must be stated that the reasons why the implementing power concerned was conferred on the Council are not explicitly clear from the wording of Article 70(7) of the SRM Regulation or from another provision of that same regulation. (47)
53. Next, as the General Court rightly stated in paragraph 32 of the judgments under appeal, the purpose and the content of the implementing acts to be adopted and the decision to confer on the Council the power to adopt them are set out in recital 114 of the SRM Regulation, but the reasons why that implementing power should be reserved for the Council are not stated therein. It is true that recital 114 of that regulation states that the legislature considered it necessary to adopt implementing measures ‘to specify the application of the methodology for the calculation of individual contributions to the [SRF] as well as the technical modalities for computing the flat contribution and the risk-adjusted contribution’. It adds that that methodology ‘should ensure’ that account is taken of certain elements in the formula for the calculation of individual contributions and of ‘the principle of proportionality, without creating distortions between banking sector structures of the Member States’. However, it by no means explains why that implementing power is to be conferred on the Council.
54. The same is true of the other provisions of the SRM Regulation upon which the appellants rely.
55. Recital 12 of that regulation refers to the crucial importance of establishing a Single Resolution Mechanism given the highly interconnected banking systems in the internal market, and the protection that that mechanism will afford to the stability of the banks of the Member States.
56. Recital 19 of that same regulation invokes the need to limit the link between Member States and the banking sector and to prevent the distortion of competition in the internal market due to national practices. To that end, the SRF, as an essential element without which the Single Resolution Mechanism could not work properly, should be financed by bank contributions raised at national level and pooled in the European Union in accordance with the Intergovernmental Agreement. It adds that, to further break the link between the perceived fiscal position of individual Member States, decisions taken within the Single Resolution Mechanism should not impinge on budgetary sovereignty or the fiscal responsibilities of the Member States.
57. Recital 20 of the SRM Regulation states that that regulation, together with the BRRD, establishes the modalities for the use of the SRF and the general criteria to determine the fixing and calculation of ex ante and ex post contributions. It refers, moreover, to the rule established by the Intergovernmental Agreement that, during a transitional period, the contributions raised at national level in accordance with the BRRD and that regulation will be allocated to different national compartments, which will be subject to a progressive merger.
58. As for recital 24 of the SRM Regulation, it notes the considerable impact of resolution decisions on the financial stability of Member States and on the European Union, as well as on the fiscal sovereignty of Member States. It further provides that the Council, as the institution which may exercise implementing powers, will exercise effective control on the assessment by the SRB, when adopting resolution decisions, of the existence of a public interest and assess any material change to the amount of the SRF to be used in a specific resolution action. (48)
59. Those recitals do not, however, make any mention of any justification whatsoever for the Council’s implementing power concerning the determination of the methodology for the calculation of individual contributions.
60. Moreover, it is true that point (b) of the second subparagraph of Article 70(2) of the SRM Regulation expressly points to the importance of avoiding distortions between banking sector structures of the Member States and the need to take account of the principle of proportionality, and Article 70(6) of that regulation, which refers to Article 103(7) of the BRRD, can be understood as illustrating, inter alia, the significance of the ex ante contributions for the stability of the financial system or the economy of one or more Member States or of the European Union. However, those provisions do not contain a statement of reasons explaining why it will be for the Council to specify how contributions are calculated in the context of an implementing power.
61. Furthermore, the references to the Intergovernmental Agreement contained in recitals 19 and 20 of the SRM Regulation and in the third paragraph of Article 1 and Articles 67 and 77 of the same regulation relate exclusively to the transfer of the funds raised at national level, the division of the SRF into national compartments and the progressive merger of the funds raised at national level and allocated to those compartments. Even if that agreement is regarded as being an integral part of the legal framework governing the financing and the use of the SRF, and it is deemed to confirm the potentially significant impact which the implementing measures may have on Member States and on their budgets, it makes no mention of the reasons why the implementing power concerned should be conferred on the Council.
62. It follows from the foregoing that the provisions to which the appellants refer do indeed illustrate the importance of ex ante contributions for the stability of the financial system, the potentially significant impact which the implementing measures may have on the Member States and on their budgets as well as on the financial stability of the European Union, the budgetary sovereignty of the Member States, the importance of avoiding distortions between banking sector structures of the Member States, or the need to take account of the principle of proportionality when adopting implementing acts governing the application of the method of calculation. However, they cannot, in my view, replace or compensate for the lack of reasons setting out the need to confer on the Council an implementing power specifically concerning the application of the methodology for the calculation of individual contributions and the practical arrangements for allocating to institutions the risk factors specified in the delegated acts, as established in Article 70(7) of the SRM Regulation.
63. Nor does the sensitive nature of such matters constitute a sufficient reason for entrusting related implementing powers to the Council, as the Commission can also be empowered to adopt implementing measures in ‘particularly sensitive sectors’. (49)
64. Lastly, while recitals 14 and 15 of Implementing Regulation 2015/81 do set out the specific financial context in which the contributions are calculated and the need to establish an adjusted methodology for the calculation of ex ante contributions that takes account of those circumstances, I am of the view, just like the General Court in paragraph 39 of the judgments under appeal, that the obligation to state reasons for the conferral of an implementing power on the Council falls to the body which adopted the basic legislative act. The Council cannot therefore justify a posteriori the conferral of such a power in the implementing act.
65. The case-law of the Court to which the appellants refer cannot, in my view, support a different conclusion.
66. Although in the cases which led to the judgments in Commission v Council, in National Iranian Oil Company v Council and in Fenix International the Court did take account of the context in which the basic act conferring an implementing power on the Council was adopted, it systematically relied upon a statement of reasons expressly contained in the wording of either the basic instrument itself, even a general and succinct statement, or in other regulations, which it regarded as forming part of a consistent whole. A reading of the recitals and the provisions concerned in the judgments in Commission v Council and in Fenix International supported the finding of an explicit, albeit sometimes brief, statement of reasons capable of clearly illustrating the justification for the implementing power concerned being reserved for the Council. (50) As for the judgment in National Iranian Oil Company v Council, since the contested regulation conferred on the Council the same implementing power as that which had already been conferred on it in previous regulations, which formed part of a substantive continuity, the statement of reasons which had explicitly justified the earlier regulations could implicitly but sufficiently justify the regulation at issue. (51)
67. In my view, that is not the case here. As I noted in point 62 of this Opinion, the provisions to which the appellants refer seek to describe the general context in which the SRM Regulation was adopted and the sensitive area in which the SRF is created, and not to justify the conferral of an implementing power, as set out in Article 70(7) of that regulation, which is specific to the Council. Recital 114 thereof simply states that the Council ‘should’ have the power to specify the methodology for the calculation of the ex ante contributions, without however justifying why that is so. The context of that same regulation is not enough to make up for the total lack of a statement of reasons. The explanations provided by the appellants in their written pleadings and presented at the hearing, as detailed and contextualised as they may be, do not appear in the text of the SRM Regulation, and that total lack of justification is not offset in the present case by a justification provided in other regulations, acts or agreements.
68. In addition, although some have argued that the Court has, thus far, shown a degree of leniency in applying the obligation to provide a proper statement of reasons for conferring an implementing power by not requiring a detailed statement of reasons, (52) I am not convinced that it intended to allow a form of automatism, by virtue of which simply referring to the need to confer an implementing power on the Council or stating that such an approach ‘should’ be taken is sufficient in that regard. EU law lays down an obligation to state detailed reasons, in accordance with which the body which adopted the basic act must provide a statement of reasons in the instrument reserving implementing powers to the Council. (53)
69. Must such a view be regarded as overly formalistic, particularly in the present case, inasmuch as the EU institutions are in agreement on the role of the Council in the area in question? (54) I am unsure.
70. On the one hand, I consider such a view to be necessary so as to ensure compliance with the rules surrounding the conferral of powers in institutional matters. In that regard, I agree with the words of Advocate General Léger in Commission v Council, who found that any reservation of power by the Council which does not comply with the mandatory requirement to state reasons undermines the institutional balance deriving from the Treaty as regards the conferral and exercise of implementing powers. The Court must, by means of its review, satisfy itself that the substance and purpose of the rule that implementing powers are conferred on the Commission are not negated. (55)
71. On the other hand, even taking the view that the regulatory framework of which Implementing Regulation 2015/81 forms a whole, the integrity of which should be preserved, it cannot be ruled out that the opposing view, based on a particularly flexible interpretation of the requirement of a detailed statement of reasons for a conferral of implementing powers on the Council, may produce effects that would go beyond the circumstances of the present case, and would also be applied in a case in which an EU institution relies on a lack of justification as to the conferral of an implementing power on the Council and a breach of the institutional prerogatives of the Commission and the Parliament.
72. I would add that it is not enough that all the EU institutions which participated in the legislative processes for the SRM Regulation were aware, in one way or another, of the reasons for the conferral of the implementing powers at issue to be able to conclude that that conferral is justified. In any case, contrary to what the Council suggested at the hearing, it is not apparent from the legislative process that entrusting the power to specify the methodology for the calculation of individual contributions to the Council was envisaged from the outset. Indeed, Article 66(3)(a) of the Commission’s proposal for the SRM Regulation provided that the ex ante contributions due to supply the SRF would be calculated according to a methodology drawn up by the Commission in delegated acts.
73. I am therefore of the view that the General Court did not err in law in finding, in essence, in paragraphs 38, 42 and 43 of the judgments under appeal, that the conferral of the implementing power concerned on the Council was not duly justified within the meaning of Article 291(2) TFEU.
74. It follows from the foregoing that the first ground of appeal must, in my view, be dismissed as unfounded.
75. In the event that the Court were not to agree with that proposal, and in the interest of the proper administration of justice, it is now necessary to examine the appellants’ arguments alleging errors of law by the General Court in holding that the Council exceeded the limits of the implementing power concerned.
B. The second ground of appeal
1. Arguments of the SRB and the EU institutions
76. The appellants submit, in essence, that the General Court made several errors of law in holding that, in adopting Article 8(1) of Implementing Regulation 2015/81, the Council exceeded the limits of the implementing powers conferred on it by Article 70(7) of the SRM Regulation.
77. In the first place, the Council argues that the Court, in the judgments of 15 October 2014, Parliament v Commission (56) and in Fenix International, set out three conditions governing the examination of the limits of implementing powers stemming from Article 291(2) TFEU, namely that the implementing measures comply with the essential general aims of the basic legislative act, that they are necessary or appropriate to facilitate the uniform implementation of that act, and that they neither amend nor supplement the act in any way. The question whether Article 8(1) of Implementing Regulation 2015/81 merely clarifies the normative content of the SRM Regulation therefore requires a structured examination of those three cumulative conditions, and the General Court was wrong, in paragraphs 52 to 54 of the judgments under appeal, to confine its examination to the third of those conditions.
78. In the second place, the appellants claim that the General Court was wrong, in paragraphs 63 to 67, 71, 72 and 85 of those judgments, to find that Article 8(1) of Implementing Regulation 2015/81 ‘supplements’ paragraphs 1 and 2 of Article 70 of the SRM Regulation, to which paragraph 7 of that provision refers, as is demonstrated by examining all three of the abovementioned conditions. If interpreted in context, the conferral of the implementing powers on the Council not only allows the adjusted method of calculation provided for in Article 8(1) of Implementing Regulation 2015/81 to be adopted, but actually requires its adoption in order to implement the SRM Regulation uniformly, without however supplementing or amending the latter, contrary to what the General Court stated in paragraphs 78 and 79 of those judgments.
79. In that regard, the appellants rely, first, on the need, explicitly set out in Article 70(2)(b) of the SRM Regulation, to base the risk-adjusted contribution on the criteria laid down in Article 103(7) of the BRRD, including, more specifically, those set out in points (c) and (g) of that provision, namely the ‘financial condition of the institution’ and the importance of each institution ‘to the stability of the financial system or economy of one or more Member States or of the Union’, and to take account of the principle of proportionality, without creating distortions between the banking sector structures of the Member States. According to the appellants, in the light of the impact that the methodology for the calculation of contributions may have on the national banking sectors, such requirements mean that, during a transitional period, the risk profile of the institutions has to be determined both in relation to the Member State where the institution is located and to the banking union as a whole.
80. The interdependence between Article 70 of that regulation and Article 103 of the BRRD provides further justification for the introduction of the adjusted method of calculation, contrary to what the General Court held in paragraphs 75 and 76 of the judgments under appeal. The rules for the calculation of ex ante contributions which those provisions lay down in similar terms, and the reference by the first of those provisions to the second, means that the calculation of ex ante contributions in accordance with the same regulation is closely connected with the calculation of ex ante contributions as provided for in the BRRD. This is the case, a fortiori, because Article 70(7) of the SRM Regulation essentially states that the Council’s implementing power should be exercised within the framework of Delegated Regulation 2015/63. That delegated regulation refers to Article 103(1) and (2) of the BRRD, and therefore to a methodology for the calculation of individual contributions which requires account to be taken of the data from the authorised institutions on a national basis.
81. Secondly, the gradual transition from the method of calculation introduced by the BRRD to the method of calculation introduced by the SRM Regulation, as prescribed by the adjusted method of calculation, is necessary or appropriate to facilitate the uniform implementation of the calculation of contributions to the SRF during the initial period, which is characterised by the transition from a system of financing under the BRRD to the gradual application of that regulation. That need for transition is apparent not only from recitals 14 and 15 of Implementing Regulation 2015/81, from the Commission’s proposal for that implementing regulation (57) and from the opinion of the Council’s legal service, (58) but also from the Intergovernmental Agreement. The purpose of the SRM Regulation, as is apparent from Articles 67 and 77 of that regulation, is to ensure the consistency of the SRF’s revenue in the form of annual contributions and the national compartments defined in that agreement, contrary to what the General Court held in paragraphs 80 to 82 of the judgments under appeal. In addition, the adjusted method of calculation guarantees that the calculation of the contributions is in line with the pace of mutualisation of the national compartments of the SRF during the initial period.
82. At the hearing, the appellants clarified that the adjusted method of calculation allowed the risk factors for the calculation of contributions to be correlated with the use of those contributions in the case of resolution. Since the national compartments within the SRF are made available as a priority at the start of the initial period, that methodology means that the effective financing capacity of a resolution is linked to the national compartment concerned, the size and financial capacity of which may vary significantly between the participating Member States. Without that adjustment, the institutions would have contributed to the SRF as if they had already been fully mutualised, whereas access to the resources in the case of resolution would remain largely dependent on the size of their respective national compartments.
83. Accordingly, Article 8(1) of Implementing Regulation 2015/81 neither supplements nor amends the SRM Regulation, but merely provides further clarifications concerning the implementation of the methodology for the calculation of ex ante contributions provided for in Article 70(1) and (2) of the SRM Regulation.
84. The SRB adds, lastly, that the General Court incorrectly disregarded the transitional nature of the adjusted method of calculation, which was applied only between 2016 and 2022. In its judgment of 20 December 2023, Landesbank Baden-Württemberg v SRB, (59) the General Court confirmed, in connection with a delegated Commission act, that the transitional provisions do not entail an amendment of the basic act, but rather determine how that act must be applied. Those principles are applicable in the present case.
85. The Parliament argues that the examination of the first two conditions relating to compliance with the limits of implementing powers set out in the judgment in Fenix International shows that the third of those conditions is also fulfilled. It raises, in that regard, arguments similar to those set out by the Council.
86. The Commission takes the view that it is apparent from the SRM Regulation that that regulation provides for the application, in addition to its own provisions, of those of the BRRD, and insists on the fundamental significance of the Intergovernmental Agreement. Article 8(1) of Implementing Regulation 2015/81 is intended to clarify the link and the interaction between the national component of ex ante contributions, the calculation of which is provided for in the BRRD, and the mutualised component of those contributions, the calculation of which is provided for in the SRM Regulation. It takes account of the gradual removal of the component of contributions calculated at national level, in accordance with that agreement, and of the subsequent gradual increase in the component of contributions calculated in the banking union, whilst applying the same risk-adjustment method, namely that laid down in Delegated Regulation 2015/63.
2. Arguments of the credit institutions
87. Hypo Vorarlberg Bank and Volkskreditbank contend that the Council’s claims criticising the General Court for failing to examine the first two conditions relating to compliance with the limits of implementing powers set out in the judgment in Fenix International are ineffective. Since the three conditions are cumulative, it is sufficient to rely on the failure to comply with one of them, which was the case here, as only the condition of whether the implementing measures adopted neither amend nor supplement the SRM Regulation was relied on in the action for annulment brought before the General Court.
88. As a result, the appellants’ arguments setting out the reasons why the adjusted method of calculation was necessary and complied with the essential general aims of that regulation are not decisive. In that regard, whilst acknowledging that the Council’s role may involve the adoption of provisions to avoid distortions between banking sector structures, Hypo Vorarlberg Bank and Volkskreditbank submit that it is not clear from the appellants’ arguments which distortions were avoided through the use of the adjusted method of calculation and that, in any case, the Council could not exceed its implementing powers to do so.
89. Turning to the alleged interdependence between Article 70 of the SRM Regulation and Article 103 of the BRRD, Hypo Vorarlberg Bank and Volkskreditbank argue that only paragraph 7 of the latter provision is referred to in Article 70 of that regulation. The EU legislature therefore expressly incorporated some elements of the BRRD into the SRM Regulation, namely the need to take account of the risk indicators defined in the BRRD when calculating the contributions. It did not, however, provide for the application of the entire method of calculation under the BRRD, nor the gradual transition from calculation on the basis of the BRRD to calculation on the basis of that regulation.
90. There is, moreover, a difference between the mutualisation of the national compartments of the SRF and the arrangements for use of that fund, as provided for in the Intergovernmental Agreement and in Articles 67 and 77 of the SRM Regulation, on the one hand, and the adjustment of the methodology for the calculation of contributions so that it is in line with the pace of mutualisation of the national compartments of the SRF during the initial period, on the other hand, to which the EU legislature has never referred. Neither the provisions to be implemented by the Council, that is to say, Article 70(1) to (3) of that regulation, nor the rule conferring implementing powers on it, namely Article 70(7) of that same regulation, makes reference to that agreement. Nor is it apparent from that agreement that the contributions transferred are to be calculated according to a combined method of calculation based on the BRRD and that regulation.
91. Lastly, Hypo Vorarlberg Bank and Volkskreditbank dispute the relevance of the judgment of 20 December 2023, Landesbank Baden-Württemberg v SRB, (60) on the ground that that judgment concerned not an implementing regulation but a delegated regulation, in the context of which, pursuant to Article 290(1) TFEU, the Commission has the power to supplement or amend certain non-essential elements of the basic legislative act.
92. At the hearing, the Bundesverband deutscher Banken primarily argued that the adjusted method of calculation was neither compatible with the general aims of the SRM Regulation nor necessary for the purpose of calculating the institutions’ contributions based on their risk profile, in accordance with the principle of proportionality. It added, in essence, that it is clear from the political objective pursued by the introduction of such a method of calculation that the Council exceeded the limits laid down in Article 70(7) of that regulation.
3. Assessment
93. As a preliminary point, I note that, as correctly stated by the General Court in paragraph 53 of the judgments under appeal, whilst Article 70(7) of the SRM Regulation, which confers an implementing power on the Council, does refer to the conditions for the implementation of paragraphs 1 to 3 of that provision, Article 8(1) of Implementing Regulation 2015/81 does not seek to define the conditions for the implementation of Article 70(3) of the SRM Regulation, relating to irrevocable payment commitments. Article 70(3) is therefore not relevant here, and I will accordingly focus my examination on the relevant implementing power conferred on the Council by Article 70(7) of that regulation, with reference to Article 70(1) and (2) thereof.
94. In the present analysis, I shall address, first, the appellants’ claims alleging errors of law made by the General Court in failing to carry out a structured examination of whether the first two conditions of the limits on implementing powers set out in the case-law of the Court of Justice were satisfied in the present case. Secondly, I shall consider the claims alleging errors of law made by the General Court in finding that Article 8(1) of Implementing Regulation 2015/81 alters the methodology for the calculation of contributions as set out in Article 70(1) and (2) of the SRM Regulation.
(a) Examination of cumulative conditions
95. It should be noted that, in accordance with the case-law of the Court, as recalled in essence by the General Court in paragraph 49 of the judgments under appeal, when implementing powers are conferred on the Council on the basis of Article 291(2) TFEU, the Council is called upon to specify the content of the legislative act at issue, in order to ensure its implementation in uniform conditions in all Member States. Thus, the provisions of an implementing act adopted by the Council must, first, comply with the essential general aims pursued by that legislative act that those provisions are meant to specify and, second, be necessary or appropriate for the uniform interpretation of the act, without supplementing or amending it, even in in its non-essential elements. (61) Compliance with the limits of implementing powers is therefore subject to satisfaction of all three cumulative conditions.
96. In the present case, having recalled the requirements set out in the judgment in Fenix International, the General Court, in paragraph 52 of the judgments under appeal, limited its examination to whether Article 8(1) of Implementing Regulation 2015/81 satisfied the condition of neither supplementing nor amending the SRM Regulation.
97. In my view, such an analysis is not vitiated by errors of law.
98. Although the Court, in the cases which led to the judgments of 15 October 2014, Parliament v Commission (62) and in Fenix International, did examine whether the provisions at issue complied with the three conditions relating to the limits of the implementing powers, it is clear that the purpose of the structured analysis which it carried out was to reject the arguments claiming that that was not case, with the result that the Council had not exceeded the implementing powers which had been conferred on it. However, it cannot be concluded on the basis of that case-law of the Court that the Courts of the European Union are required to examine those three conditions in a particular order, or that it is necessary to examine all the conditions where one of them is not satisfied. Since those three conditions must be fulfilled cumulatively, which the parties do not dispute, the fact that one of them is not met is sufficient to conclude that the Council exceeded the implementing power conferred on it on the basis of Article 291(2) TFEU. (63)
99. Nor can it be argued that observance of the first two conditions automatically entails observance of the third, which the Council acknowledged at the hearing. Thus, even if the view were taken that Article 8(1) of Implementing Regulation 2015/81 is necessary or appropriate for the implementation of the SRM Regulation, or that it complies with the essential general aims of that regulation, the fact remains that, so long as the condition relating to the prohibition on supplementing or amending the content of the SRM Regulation is not fulfilled, the limits of the implementing powers are not respected.
100. Therefore, in my view, the General Court did not err in law in confining the examination to the condition that Article 8(1) of Implementing Regulation 2015/81 could neither supplement nor amend the SRM Regulation, without having previously examined the arguments of the EU institutions seeking to establish that that provision complied with the essential general aims of that regulation and was necessary or appropriate to facilitate the uniform implementation of it.
101. Since the General Court concluded from that examination that that condition was not met, it was not required to examine the two other conditions of the limits of implementing powers, with the result that the Council’s arguments in that regard should be dismissed as unfounded.
(b) Compliance by Article 8(1) of Implementing Regulation 2015/81 with the prohibition on supplementing or amending the content of the SRM Regulation
102. Unlike the delegated power which the EU legislature may confer on the Commission in a legislative act, pursuant to Article 290(1) TFEU, in order to adopt rules which supplement or amend non-essential elements of the act, (64) the implementing powers conferred on the Commission or the Council under Article 291(2) TFEU entail, in essence, the power to adopt measures which are necessary or appropriate for the uniform implementation of the provisions of the legislative act on the basis of which they are adopted and which merely specify the content of that act, in compliance with the essential general aims pursued by that act, without amending or supplementing it, in its essential or non-essential elements, (65) and provided that the implementing measures thus adopted are not contrary to the legislative act. (66)
103. In particular, the Court has found that an implementing measure merely specifies the provisions of the legislative act concerned where it is intended solely, in general or in certain specific cases, to clarify the scope of those provisions or to determine the detailed rules for their application, provided however that, in so doing, that measure avoids any contradiction with the objectives of those provisions and does not in any way alter the normative content of that act or its scope of application. (67)
104. In the present case, I note that the Parliament and the Council conferred on the Council, according to the very wording of Article 70(7) of the SRM Regulation, the power to adopt, in the context of the delegated acts referred to in paragraph 6 of that provision, implementing acts to determine the conditions of implementation of paragraphs 1 and 2 thereof, in particular in relation to the application of the methodology for the calculation of individual contributions and the practical modalities for allocating to institutions the risk factors specified in the delegated acts. It is on the basis of that implementing power that the Council adopted Implementing Regulation 2015/81, Article 8(1) of which is under discussion here.
105. It must be observed that Article 70(1) of the SRM Regulation provides that the individual contribution of each institution is to be raised at least annually and 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. Points (a) and (b) of the second subparagraph of paragraph 2 of that provision state that each year the calculation of the contributions for individual institutions is to be based, on the one hand, on a flat contribution that is pro-rata based on the amount of an institution’s net liabilities, with respect to the total net liabilities of all of the institutions authorised in the territories of the participating Member States, and, on the other hand, on a risk-adjusted contribution that is to be based on the criteria laid down in Article 103(7) of the BRRD, which takes into account the principle of proportionality, without creating distortions between banking sector structures of the Member States.
106. It is worth pointing out that, while the flat contribution and the risk-adjusted contribution may appear to be two separate components of the calculation of the annual contributions, they are closely linked. For institutions such as those concerned by the present cases, the risk-adjusted contribution is calculated by taking into account the amount of the flat contribution of each institution and adjusting it in proportion to the risk profile of that institution. (68) That adjustment of the contribution to reflect an institution’s risk profile is based on a comparison of that institution’s exposure to the relevant risk factors with that of the other institutions concerned. (69)
107. It is thus apparent from the wording of point (a) of the second subparagraph of Article 70(2) of the SRM Regulation that each year the flat contribution, which is used to determine the amount of the risk-adjusted contribution, is calculated pro-rata to the amount of net liabilities of the institution concerned, with respect to the aggregate net liabilities of all of the institutions authorised ‘in the territories of the participating Member States’. Similarly, paragraph 1 of that provision refers, in relation to the calculation of the individual contributions, to the aggregate net liabilities of all of the institutions authorised ‘in the territories of all of the participating Member States’.
108. Accordingly, as the General Court essentially observed in paragraphs 61 and 62 of the judgments under appeal, in accordance with the text of Article 70(1) and (2) of that regulation, the aggregate net liabilities of all of the institutions authorised in the territories of all of the participating Member States is the appropriate data base that must be taken into account to determine the amount of the flat contribution, which will serve as the basis for the calculation of the risk-adjusted contribution. Furthermore, those provisions make no distinction between a method of calculation applicable during the initial period or after that period.
109. Article 70(1) and (2) of that regulation therefore contains no explicit reference to the fact that, during the initial period, account should be taken, for the calculation of a decreasing percentage of contributions, of the data from the banking institutions collected on a national basis, in accordance with Article 103(2) of the BRRD. I infer from that fact that nothing in the wording of that provision explicitly supports the view that that methodology for the calculation of ex ante contributions contained therein could be interpreted as including, partially and temporarily, a data base other than the union base.
110. Nevertheless, it must be observed that the adjusted method of calculation did provide that a proportion of the ex ante contributions would be calculated on the national base, as the General Court noted in paragraphs 58 to 60 and paragraphs 63 to 65 of the judgments under appeal. Thus, Article 8(1) of Implementing Regulation 2015/81 provides that, each year of the initial period, a decreasing share of the annual contributions is to be calculated in accordance with Article 103 of the BRRD and Article 4 of Delegated Regulation 2015/63, that is to say, taking into account the aggregate net liabilities of all of the institutions authorised in the territory of the participating Member State concerned (and therefore a national base), whereas an increasing share of the contributions is to be calculated in accordance with Articles 69 and 70 of the SRM Regulation and Article 4 of Implementing Regulation 2015/81, that is to say, taking into account the aggregate net liabilities of all of the institutions authorised in the territories of all of the participating Member States (and therefore on a union base). The adjusted method of calculation therefore provides that the data taken into account for the calculation of one part of the contributions are collected on a national base, whereas, for the other part, they are collected on a union base. In so doing, the Council departed significantly from the specific wording of Article 70(1) and (2) of the SRM Regulation.
111. The appellants essentially take the view, however, that the decreasing account taken of the data collected on a national base, as set out in Article 8(1) of Implementing Regulation 2015/81, is legitimately based on the SRM Regulation in so far as there is an interdependent relationship between Article 70 of that regulation and Article 103 of the BRRD, as well as Delegated Regulation 2015/63. More specifically, the risk profile of the institutions, in particular the ‘financial condition of the institution’ and ‘importance of the institution to the stability of the financial system or economy of one or more Member States or of the Union’ risk indicators contained in Article 103(7)(c) and (g) of the BRRD, could be impacted by the progressive mutualisation of the national compartments in the event of the SRF being used, as provided for in the Intergovernmental Agreement. It was necessary to take due account of that context, in order to comply with the principle of proportionality and not create distortions between banking sector structures of the Member States, as provided for in Article 70(2)(b) of the SRM Regulation. The adjusted method of calculation meets all those objectives, as is explicitly apparent from recitals 14 and 15 of Implementing Regulation 2015/81.
112. So long as those arguments are understood to mean that the adjusted method of calculation was necessary for the implementation of the SRM Regulation and complied with the essential general aims of that regulation, I would note that, as is apparent from point 99 of this Opinion, such a finding cannot give the Council permission to disregard the prohibition on supplementing or amending the content of that regulation.
113. If, by contrast, the purpose of those arguments is to submit that the reference made by Article 70 of the SRM Regulation to the risk indicators set out in Article 103(7) of the BRRD and to Delegated Regulation 2015/63, and the reference to the principle of proportionality and the distortions to be avoided between banking sector structures, incorporate the possibility of taking into account data collected on a national base for the calculation of ex ante contributions, it is my view that that should at the very least be clear from the text of the SRM Regulation, which is the basic legislative act. (70)
114. In that regard, first, it must be observed that Article 70(2)(b) of the SRM Regulation provides that the risk-adjusted contribution is to be based on the criteria laid down in Article 103(7) of the BRRD. Similarly, Article 70(7) of that regulation, by its reference to paragraph 6 of that provision, which provides for the application of the ‘delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of the institutions, adopted by the Commission’, establishes an explicit link to Article 103(7) of the BRRD and to Delegated Regulation 2015/63. There are indeed therefore certain similarities between the methodology for the calculation of individual contributions introduced by the SRM Regulation and that introduced by the BRRD.
115. Each of those methods of calculation takes as its starting point the net liabilities of the institution concerned and requires the adjustment of a flat contribution, within the meaning of the SRM Regulation, (71) or a basic annual contribution, for the purposes of the BRRD, (72) to the risk profile of that institution. In order to do so, account must be taken of the risk indicators laid down in Article 103(7) of the BRRD and the appropriate method of adjustment as specified in Delegated Regulation 2015/63 must be applied.
116. Thus, Article 103(7) of the BRRD lists the eight factors which the Commission must take into account when it adopts the delegated act in order to specify the notion of ‘adjusting contributions in proportion to the risk profile of institutions’, and Delegated Regulation 2015/63 sets out and actually implements the principles to be applied in the context of that adjustment. That delegated regulation introduces the precise method of calculation actually used to determine the amount of the institutions’ ex ante contributions depending on the adjustment to their risk profile, provides details of the various stages of that method of calculation and sets out the mathematical formulae to be applied by the SRB or the national resolution authorities. (73) The purpose of that regulation is therefore to ensure a uniform interpretation of the criteria set out in Article 103(7) of the BRRD, so that the determination of the risk indicators of the institutions for the purpose of calculating their individual contributions is carried out in a similar manner across the European Union, within both the context of the system introduced by the BRRD and that introduced by the SRM Regulation. (74)
117. However, the two methods of calculation differ as regards the data base to be taken into account with a view to determining the annual contributions. Unlike the data base serving as the basis of the method of calculation set out in the BRRD, which consists exclusively of the data from the banking institutions collected on a national base, only the union base is explicitly referred to in Article 70(1) and (2) of the SRM Regulation.
118. Article 103(7) of the BRRD, which is the only provision of that directive to which explicit reference is made in Article 70 of that regulation, makes no mention of the national data base that serves as the basis of the methodology for the calculation of contributions established in Article 103(2) of that directive, as observed by the General Court in paragraph 75 of the judgments under appeal. Similarly, it is not apparent from Delegated Regulation 2015/63 that the SRB, where it acts as the resolution authority within the framework of the SRM Regulation, must take such a national data base as the basis for the calculation of a variable percentage of the ex ante contributions. In addition, whilst recital 109 of that regulation states that, ‘in order to ensure a fair calculation of contributions and provide incentives to operate under a model which presents less risk, contributions to the [SRF] should take account of the degree of risk incurred by the credit institution in accordance with [the BRRD] and with the delegated acts adopted pursuant thereto’, (75) it does not establish the need to calculate a decreasing share of the contributions taking into account data collected on a national base.
119. I remain particularly baffled by the argument that the reference made by Article 70 of the SRM Regulation to Article 103(7) of the BRRD and to Delegated Regulation 2015/63 empowered the Council to adopt the adjusted method of calculation, as such an argument gives Article 70 of the SRM Regulation a double meaning which appears contradictory to me.
120. On the one hand, Article 70 of that regulation should be understood, according to the appellants, as explicitly referring to taking into account an increasing percentage of data collected on a union base and a decreasing percentage of data collected on a national base. However, on the other hand, that article is understood, in accordance with the actual wording of Implementing Regulation 2015/81, as referring to a method of calculation which takes account only of the data collected on a union base. It is for that reason that Article 8(1)(a) to (h) of that implementing regulation establishes that an increasing percentage of the annual contributions will be calculated ‘in accordance with Articles 69 and 70 of [the SRM Regulation] and Article 4 of [that implementing regulation]’, and that, ‘in the eighth year of the initial period, [the] institutions shall contribute 100% of their annual contributions calculated in accordance with Articles 69 and 70 of [the SRM Regulation] and Article 4 of [the same implementing regulation]’. In addition, in accordance with the wording of Article 4 of Implementing Regulation 2015/81, the calculation method must be consistent with Article 70 of the SRM Regulation and ‘with the methodology set out in Delegated Regulation [2015/63]’. (76) Those provisions have been interpreted by all the parties as meaning that, at an increasing rate over the initial period, and reaching a level of 100% in the last year of that period, only data collected on a union base serve as the basis for calculating annual contributions. It therefore follows from that fact, in the first place, that the mere reference to Delegated Regulation 2015/63 cannot be understood as implicitly meaning a reference to the method of calculation under the BRRD and to the use of data collected on a national base and, in the second place, that the method of calculation established in Article 70 of the SRM Regulation provides only for use of the data from the authorised institutions collected on a union base.
121. The same goes, in my view, for the appellants’ argument that taking into account the risk indicators contained in Article 103(7)(c) and (g) of the BRRD means calculating the institutions’ contributions according to a methodology which decreasingly takes account of the data from the authorised institutions collected on a national base. In so far as those risk indicators also play a role in determining the risk profile of institutions and their risk-adjusted contribution as part of a calculation founded entirely on the union base, it is not apparent from the SRM Regulation that the reference to that provision of the BRRD signified a gradual transition from a calculation method on a national base to a calculation method on a union base.
122. Secondly, as regards the appellants’ argument to the effect that the objective of the SRM Regulation is to ensure consistency between the SRF’s revenue in the form of annual contributions and the progressive mutualisation of the national compartments in the event of use of the SRF, as provided for in the Intergovernmental Agreement, it is my view, as the General Court essentially stated in paragraph 79 of the judgments under appeal, that that agreement in no way examines the question of the method of calculation to be adopted for the purpose of raising the individual contributions. (77) The same is true of the SRM Regulation, which does not contain any explicit mention of the fact that the raising of individual contributions should follow the pace of mutualisation of the national compartments of the SRF in the event of use of that fund. Article 67(1) and (4) and Article 77 of the SRM Regulation refer only, respectively, to the rules of that agreement on the transfer of the funds and on the use of the SRF as part of resolution proceedings. (78) Any link between the calculation of contributions during the initial period and the progressive mutualisation of the compartments within the SRF is not therefore sufficiently apparent from that regulation.
123. I note, furthermore, that the pace at which the contributions calculated taking into account the union base gradually increases, accompanied by the gradual reduction of the contributions calculated taking into account the national base, as established by the adjusted method of calculation, does not exactly mirror the pace of mutualisation of the national compartments of the SRF established by the Intergovernmental Agreement. As the Council confirmed at the hearing, the percentage of the contributions calculated on the national base does not precisely correspond to the percentages of the non-mutualised funds, within the national compartments, which may be used as part of resolution proceedings. (79) That discrepancy has an impact on all the years of the initial period and, in my view, undermines the argument to the effect that the adjusted method of calculation makes it possible to ensure that the national compartments’ actual capacity to finance a resolution is linked to the contributions raised taking into account the national base.
124. It follows from the foregoing that nor can it be argued that the need to take account of the principle of proportionality, without creating distortions between banking sector structures of the Member States, to which reference is made in Article 70(2)(b) of the SRM Regulation, implicitly covers a method of calculation based on a gradual implementation of contributions calculated taking into account the union base, accompanied by a gradual reduction of the contributions taking into account the national base. Neither the concept of ‘proportionality’ nor the need not to create distortions between banking sector structures can be given a scope which sets aside considerations arising from the very wording of that regulation.
125. I would add that, contrary to what the Council argued in its written pleadings before the Court, it is not apparent from the opinion of its legal service that that service took the view that Article 7(1) of the proposal for an implementing regulation, which became Article 8(1) of Implementing Regulation 2015/81, was fully compatible with the conferral of powers provided for in the SRM Regulation. After examining the justifications contained in recitals 13 and 14 of the proposal for an implementing regulation relating to the need to avoid distortions between banking sector structures, the legal service concluded that, as drafted, nothing in the proposal for an implementing regulation supported the conclusion that the adjusted method of calculation was compatible with the general rules and principles under Article 70(1) and (2) of the SRM Regulation, and that a sufficiently robust explanation had to be provided in order to establish a genuine link between that method and the risk factors. Furthermore, nor was it the purpose of the opinion of the Council’s legal service to take a view on the plausibility of such justification. (80)
126. It is true that the proposal for an implementing regulation was subsequently amended, including recitals 13 and 14 of that proposal concerned by the opinion of the Council’s legal service. However, the fact remains, in any event, that the more detailed explanations contained in recitals 13 to 15 of Implementing Regulation 2015/81, which concern compliance with the principle of proportionality, the need to avoid distortions between banking sector structures and the interest in ensuring that the risk-adjusted contributions are commensurate with the expected use of the national compartments’ non-mutualised means, have no clear basis in the SRM Regulation, which is the basic legislative act, as is apparent from points 114 to 123 of the present Opinion.
127. If the intention behind the adjusted method of calculation was to ensure that the contributions due by certain institutions under the Single Resolution Mechanism did not unduly exceed the amount of the contributions which they would have had to pay under the mechanism as introduced by the BRRD, (81) this is not clear from that regulation. It is, furthermore, equally conceivable, as Hypo Vorarlberg Bank and Volkskreditbank have argued, that, for other institutions, the adjusted method of calculation resulted in contribution amounts higher than those which they would have paid on the basis of a method of calculation exclusively taking into account the union data base.
128. Accordingly, as rightly observed by the General Court in paragraphs 71 and 72 as well as 78 and 79 of the judgments under appeal, the Council was not entitled, by means of the implementing powers conferred on it by the SRM Regulation, to depart from the method of calculation explicitly prescribed in Article 70(1) and (2) of that regulation, which simply refers to relating the data of each institution taken individually to the data collected on a union base, and to alter the very basis of that method of calculation.
129. It is true, as Advocate General Rantos noted in his Opinion in Fenix International, that the distinction between ‘supplementing or amending’ and ‘providing further detail in relation to’ a legislative act is not always self-evident. (82) In addition, it is arguable that implementing measures, whatever they may be, always ‘add’ something to the basic legislative act, in particular since the very specification of uniform conditions of implementation will add some element or other to the enabling provision of that legislative act. (83)
130. However, as Advocate General Jäaskinen found in his Opinion in United Kingdom v Parliament and Council, citing the philosopher Stefan Körner, ‘the existence of borderline cases does not imply the absence of clear positive or negative ones’. (84) It is my view that legislation adopted within the framework of an implementing power must, at the very least, be consistent with the unequivocal wording of the general rule established in the basic legislative act.
131. The transitional nature of the adjusted method of calculation does not invalidate that conclusion. (85)
132. It is therefore my view that the General Court did not err in holding, in paragraph 85 of the judgments under appeal, that the adjusted method of calculation introduced by Article 8(1) of Implementing Regulation 2015/81 alters the normative content of the SRM Regulation, such that the Council exceeded the implementing powers conferred on it in Article 70(7) of that regulation. (86)
133. In the light of all the foregoing considerations, I propose that the Court should dismiss the second ground of appeal in its entirety as unfounded.
C. The third ground of appeal
1. Arguments of the SRB and the EU institutions
134. The appellants claim, in essence, that the General Court, in paragraphs 114 to 122 of the judgments 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 by 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 Meroni v High Authority case-law. (87) The General Court’s reasoning in that regard is, moreover, vitiated by a number of contradictions.
135. 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. (88)
136. In addition, contrary to what the General Court states in paragraphs 118 and 119 of the judgments under appeal, the meaning of the first and fourth subparagraphs of Article 70(2) of that 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 same 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 applicable to that final target level and not to the target level ‘forecast’ in each year of the initial period, contrary to what the General Court found in paragraph 115 of those judgments. 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. (89)
137. Article 69(1) and the first and fourth subparagraphs of Article 70(2) of the SRM Regulation should therefore be interpreted on a contextual and teleological basis, in order to reconcile those provisions and to give them practical effect.
138. 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.
139. 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 sector over the initial period, at that time set at 10 years, would represent ‘around’ one-tenth of the target level. (90) 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 (EU) 2017/747. (91)
140. 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.
141. From a contextual standpoint, the SRB adds that the EU legislature did not intend to allow it 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’. (92) 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 125 to 127 of the judgments under appeal.
142. 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 v High Authority. (93) 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.
143. Lastly, the General Court’s reasoning is vitiated by contradictions since, on the one hand, it states, in paragraph 114 of the judgments 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 125 and 126 of those judgments, 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 would mean overestimating the target level without any justification for so doing on the basis of the available data.
144. 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 123 to 126 of those judgments, that it was possible to adopt such an approach. Such an analysis is based on incorrect review criteria and disregards points of fact and of law existing when the SRB 2022 decision was adopted, that is to say, during the 2022 contribution period.
145. The Parliament takes the view that, although the General Court correctly held, in paragraph 123 of those same judgments, 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 Article 69 and 70 of the SRM Regulation, the General Court however ruled out such an interpretation, in paragraphs 114 to 116 of the judgments under appeal, 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 considers that the General Court’s reasoning makes the annual target level the decisive factor, to the detriment of the final target level known at the end of the initial period, and thus turns on its head the ranking of the financial targets to be achieved.
2. Arguments of the credit institutions
146. Hypo Vorarlberg Bank, supported by the Österreichischer Sparkassenverband and Volkskreditbank, argue, first, that it is clear both from the wording of Article 70(2) of the SRM Regulation and from the legislative procedure that the 12.5% cap, which is laid down twice with binding effect, had to be observed in all circumstances during the initial period, as that cap had been established to protect the financial institutions from excessive contributions and to not hinder unduly the economic operation of the banking sector. Secondly, it cannot be inferred that the target level established in Article 69(1) of that regulation must necessarily take precedence, since that provision enjoys the same status as Article 70 thereof. They add that the claim alleging that the General Court required the SRB to overestimate the target level intentionally stems from a misinterpretation of the judgments under appeal, as the General Court simply stated that the SRB was bound by conservative projections of the evolution of covered deposits. Such requirements are not contradictory and preclude any overestimate.
3. Assessment
147. In order to avoid repetition, I refer to points 45 to 106 of the Opinion which I am delivering today in Cases C‑454/24 P, SRB v Dexia, and C‑705/24 P, SRB v BAWAG P.S.K., since paragraphs 95 to 133 of the judgments under appeal are identical to paragraphs 27 to 65 of the judgment of 10 April 2024, Dexia v SRB (2022 ex ante contributions) (T‑411/22, EU:T:2024:216) and the appellants’ arguments are essentially the same in each of those cases, in which I propose that the Court dismiss those arguments as unfounded.
148. Since none of the grounds of appeal raised by the appellants in support of their appeals has been upheld, those appeals should be dismissed in their entirety.
IX. Maintaining the temporal effects
A. Arguments of the parties
149. In the alternative, in so far as the plea of illegality concerns Article 70(7) of the SRM Regulation and affects both Implementing Regulation 2015/81 and the 2022 SRB decision, the appellants claim that three consecutive procedures are necessary to remedy the alleged defects, and, on that basis, ask the Court to defer the effect of the annulment of that decision for a period of at least 30 months from the date on which the judgments given in these proceedings become final.
150. Hypo Vorarlberg Bank argues that maintaining the effects of the 2022 SRB decision, in the event that that decision is annulled, for a period of 30 months was not requested by any of the parties to the proceedings at first instance. Furthermore, since the SRB asked the General Court to maintain the effects of that decision for a period of six months from the date on which the judgment of the General Court became final, the General Court was wrong to have allowed such effects to be maintained for a period of twelve months. Hypo Vorarlberg Bank adds that while, under the second paragraph of Article 264 TFEU, the usual ex tunc effect of an annulment may be restricted, that is an exception which must be interpreted narrowly.
151. In addition, first, the 2022 SRB decision was not annulled on the grounds of infringements of essential procedural requirements but for a substantive infringement of a provision of the SRM Regulation. Secondly, the appellants do not explain the risk to financial stability or the serious negative impact associated with an immediate annulment of that same decision or with maintaining its effects for a period exceeding twelve months. Maintaining its effects would, however, have a serious negative impact on the banking institutions, which would receive neither the reimbursement of the sums unlawfully collected nor interest as lump-sum compensation.
152. In the alternative, Hypo Vorarlberg Bank argues that, at the very most, maintaining the effects of the 2022 SRB decision only in part is conceivable, such that the proportion of the contributions collected exceeding the amount of the final target level known at the end of the initial period could be reimbursed.
B. Assessment
153. 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 SRB 2022 decision, as I propose it should do.
154. 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, as the 2022 SRB decision at issue here is vitiated by the same illegalities as the SRB decision at issue in that case.
155. I therefore propose that the Court maintain the effects of the 2022 SRB decision, in so far as it concerns Hypo Vorarlberg Bank and Volkskreditbank, 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 a new SRB decision setting those institutions’ ex ante contributions to the SRF enters into force.
X. Costs
156. It follows from the foregoing considerations that the appeals must be dismissed in their 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.
157. 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 appellants have been unsuccessful in their respective appeals, they should be ordered to bear their own costs and to pay those of Hypo Vorarlberg Bank and Volkskreditbank, in accordance with the form of order sought by those parties.
158. Under Article 140(1) and (3) of those same Rules of Procedure, applicable to the appeal proceedings pursuant to Article 184(1) thereof, the EU 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 the 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 and the Commission are to bear their own costs.
159. On the basis of those provisions, the SRB and the Council must also be ordered to bear their own costs, respectively, in Cases C‑529/24 P and C‑585/24 P and C‑536/24 P and C‑537/24 P, and the Bundesverband deutscher Banken and the Fédération bancaire française are to bear their own costs in each of those cases.
XL. Conclusion
160. In the light of the foregoing considerations, I propose that the Court of Justice should:
(1) Dismiss the appeals;
(2) Order the effects of Decision SRB/ES/2022/18 of the Single Resolution Board to be maintained, in so far as that decision concerns Hypo Vorarlberg Bank AG and Volkskreditbank AG, until the entry into force of a new act intended to replace it 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 Council of the European Union to bear its own costs and to pay those incurred by Hypo Vorarlberg Bank and Volkskreditbank in Cases C‑529/24 P and C‑585/24 P;
(4) Order the Single Resolution Board to bear its own costs and to pay those incurred by Hypo Vorarlberg Bank and Volkskreditbank in Cases C‑536/24 P and C‑537/24 P;
(5) Order the Council to bear its own costs in Cases C‑536/24 P and C‑537/24 P;
(6) Order the Single Resolution Board to bear its own costs in Cases C‑529/24 P and C‑585/24 P;
(7) Order the European Parliament and the European Commission, as well as the Bundesverband deutscher Banken eV and the Fédération bancaire française, to bear their own costs.
1 Original language: French.
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’.
3 Intergovernmental Agreement on the transfer and mutualisation of contributions to the SRF, signed in Brussels on 21 May 2014 (‘the Intergovernmental Agreement’).
4 Directive 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’.
5 Commission Delegated Regulation 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).
6 Council Implementing Regulation 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).
7 See recitals 1 to 6 of the BRRD. 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).
8 See recitals 15, 104 and 131 and Article 3 of the BRRD.
9 See recitals 105 to 107 and Articles 102, 103 and 130 of the BRRD.
10 See second sentence of Article 102(1) of the BRRD.
11 See Article 103(2) of the BRRD.
12 See the second subparagraph of Article 103(2) and Article 103(7) of the BRRD, and Article 4 et seq. of Delegated Regulation 2015/63.
13 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’).
14 See Article 4(1) of the SRM Regulation.
15 See recitals 10 and 11 and Article 1 of the SRM Regulation.
16 See Article 76(1) of the SRM Regulation.
17 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)’.
18 See Article 70(1) of the SRM Regulation.
19 See Article 70(2) of the SRM Regulation.
20 See Article 70(6) of the SRM Regulation.
21 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 the 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.
22 See Article 5 of the SRM Regulation.
23 See recital 20 of the SRM Regulation, but also recitals 7 and 12, Article 1(1)(a) and Article 3 of the Intergovernmental Agreement.
24 See recital 12, Article 1 and Article 3(3) of the Intergovernmental Agreement.
25 Period defined as running from 1 January 2016 until the date on which the SRF reaches the target level but not later than eight years after the date of application of the Intergovernmental Agreement (see Article 1(1)(b) of that agreement).
26 See recital 20 and Article 1 of the SRM Regulation, and recital 9, Article 1(1)(b) and Articles 4 and 5 of the Intergovernmental Agreement.
27 See recitals 13 to 15 and Article 4 and Article 8(1) of Implementing Regulation 2015/81.
28 EUR 79 987 450 580 (see judgments under appeal (paragraph 129)).
29 See recitals 60 and 61 of the 2022 SRB decision.
30 EUR 14 253 573 821.46 (see recital 62 of the 2022 SRB decision).
31 See Section 6 of the 2022 SRB decision.
32 Judgments under appeal (paragraphs 134 to 136).
33 Judgments under appeal (paragraphs 23 to 42).
34 Judgments under appeal (paragraphs 45 to 86).
35 Judgments under appeal (paragraphs 95 to 133).
36 Judgments under appeal (paragraphs 141 to 146).
37 The appellants refer to the judgments of 18 January 2005, Commission v Council (C‑257/01, ‘the judgment in Commission v Council’, EU:C:2005:25, paragraph 53); of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, ‘the judgment in National Iranian Oil Company’, EU:C:2016:128, paragraphs 49 and 50, and the case-law cited, and paragraph 64); and of 28 February 2023, Fenix International (C‑695/20, ‘the judgment in Fenix International’, EU:C:2023:127, paragraph 37).
38 Article 10 of the Single European Act thus provided that Article 145 EEC would be supplemented by the following provision:
‘ – confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the Opinion of the European Parliament’ (emphasis added).
39 See Opinion of Advocate General Léger in Commission v Council (C‑257/01, EU:C:2004:226, point 52).
40 See judgments of 24 October 1989, Commission v Council (16/88, EU:C:1989:397, paragraph 10); in National Iranian Oil Company v Council (paragraph 49); and of 22 September 2016, NIOC and Others v Council (C‑595/15 P, ‘the judgment in NIOC and Others v Council’, EU:C:2016:721, paragraph 55).
41 Paragraph 51. In that regard, Advocate General Léger, in his Opinion in Commission v Council (C‑257/01, EU:C:2004:226, point 54), took the view that, given that the reasons must be stated in detail, the statement of reasons must not only set out the factual and legal reasons which prompted the Council to decide to reserve the implementing powers to itself, but must also explain why it is important that it is the Council rather than the Commission which, exceptionally, is to exercise those powers.
42 C‑133/06, EU:C:2008:257, paragraph 47.
43 Before the entry into force of the Treaty of Lisbon, the expression ‘implementing powers’ in the third indent of Article 202 EC covered two types of powers: the power to implement, in the European Union, an EU legislative act or certain EU provisions, on the one hand, and, in certain circumstances, the power to adopt normative acts which supplement or amend non-essential elements of a legislative act, on the other hand. The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, proposed making a distinction between those two types of powers, which was ultimately incorporated in the Treaty of Lisbon: it introduces a distinction between delegated powers and implementing powers in Articles 290 and 291 TFEU (see, to that effect, judgment of 18 March 2014, Commission v Parliament and Council (C‑427/12, EU:C:2014:170, paragraph 36)).
44 See, to that effect, the judgments in Commission v Council (paragraph 59); in National Iranian Oil Company v Council (paragraph 60 and the case-law cited); and in NIOC and Others v Council (paragraph 66 and the case-law cited).
45 See Blumann, C., ‘Un nouveau départ pour la comitologie: le règlement no 182/2011 du 16 février 2011’, Cahiers de droit européen, No 1, 2011, pp. 26 to 52, which interpreted that amendment of the text of the Treaty as meaning that the conferral of an implementing power on the Council would be more difficult than under the EEC Treaty and the EC Treaty, at least conceptually, given the intention to strip that institution of its executive role in order to focus it on its other duties.
46 See the judgments in National Iranian Oil Company v Council (paragraphs 50 and 60 and the case-law cited); in NIOC and Others v Council (paragraph 56 and the case-law cited); and in Fenix International (paragraph 37 and the case-law cited).
47 A consensus on this point appears to have emerged at the hearing.
48 I note in that regard that both the General Court, in paragraph 35 of the judgments under appeal, and the SRB, in its written pleadings before the Court of Justice, established a link between recital 24 and Article 18(7) of the SRM Regulation.
49 See Chamon, M., ‘The Sui Generis Framework for Implementing the Law of EMU: A Constitutional Assessment’, European Papers, Vol. 6, No 3, 2021, pp. 1463 to 1484, in particular pp. 1480 to 1482, which cites inter alia, by way of example, recital 14 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).
50 See the judgments in Commission v Council (paragraphs 33 and 34, 38, 53 to 56 and 59) and in Fenix International (paragraphs 39 and 40). See also judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraphs 188 and 189), in which the Court found that the details contained in the contested regulation explaining that the implementing powers were conferred on the Council in order to ensure uniform conditions for the implementation of that regulation, in view of the importance of the financial effects of those measures, were sufficient to support the view that the conferral of those powers on the Council was duly justified.
51 See the judgment in National Iranian Oil Company v Council (paragraphs 60 to 65). See also, to that effect, Opinion of Advocate General Cruz Villalón in National Iranian Oil Company v Council (C‑440/14 P, EU:C:2015:545, points 93 to 97).
52 See Chamon, M., ‘Only Fans of the Council’s implementing powers in Luxembourg: Fenix International’, Common Market Law Review, No 6, Vol. 60, 2023, pp. 1683 to 1704, in particular p. 1693.
53 See Opinion of Advocate General Léger in Commission v Council (C‑257/01, EU:C:2004:226, point 54).
54 At the hearing, the Council essentially argued that the relevant case-law of the Court had to be analysed in the light of the fact that, in the present case, the ordinary legislative procedure was marked by the deliberate decision of the Council and the Parliament, with the Commission’s agreement, to confer an implementing power on the Council.
55 See, to that effect, Opinion of Advocate General Léger in Commission v Council (C‑257/01, EU:C:2004:226, points 55 and 59). See also, on the risk of ‘competence creep’, Dougan, M., ‘EU Competences in an Age of Complexity and Crisis: Challenges and Tensions in the System of Attributed Powers’, Common Market Law Review, No 1, Vol. 61, 2024, pp. 93 to 138, in particular pp. 120 to 124.
56 C‑65/13, EU:C:2014:2289.
57 See proposal for a Council implementing regulation of 24 November 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, (COM (2014) 710 final] (‘the proposal for an implementing regulation’).
58 See opinion of the Council’s legal service of 13 November 2014 on the compatibility of Article 7 of the proposal on transitional provisions with the SRM Regulation (Document 15506/14) (‘the opinion of the Council’s legal service’). Article 7(1) of that proposal became Article 8(1) of Implementing Regulation 2015/81.
59 T‑389/21, EU:T:2023:827, paragraphs 231 to 236.
60 T‑389/21, EU:T:2023:827.
61 See, to that effect, judgments of 15 October 2014, Parliament v Commission (C‑65/13, EU:C:2014:2289, paragraphs 43 to 46), and in Fenix International (paragraphs 44 to 49).
62 C‑65/13, EU:C:2014:2289.
63 See, by analogy, judgment of 23 October 2007, Parliament v Commission (C‑403/05, EU:C:2007:624, paragraphs 49 to 70), in which the Court annulled a Commission decision after concluding that that decision pursued an objective which fell outside the framework of the policy pursued by the regulation pursuant to which the Council had conferred on the Commission an implementing power, without continuing the examination further.
64 See, inter alia, judgments of 18 March 2014, Commission v Parliament and Council (C‑427/12, EU:C:2014:170, paragraph 38), and of 17 March 2016, Parliament v Commission (C‑286/14, EU:C:2016:183, paragraph 30 and the case-law cited).
65 See, to that effect, judgments of 15 October 2014, Parliament v Commission (C‑65/13, EU:C:2014:2289, paragraph 45), and in Fenix International (paragraphs 48 and 49). For further details on the dividing line between delegated acts and implementing acts, see, inter alia, Opinion of Advocate General Cruz Villalón in Commission v Parliament and Council (C‑427/12, EU:C:2013:871, points 21 to 79); Blumann, C., ‘Un nouveau départ pour la comitologie: le règlement no 182/2011 du 16 février 2011’, op. cit.; Salomia, O.-M., ‘Delegated Acts and Implementing Acts – New Legal Acts of the European Union’, Challenges of the Knowledge Society. Public Law, Vol. 7, May 2017, pp. 551 to 556; Chamon, M., ‘The Sui Generis Framework for Implementing the Law of EMU: A Constitutional Assessment’, op. cit.; Craig, P., ‘Comitology, Rulemaking, and the Lisbon Settlement: Tensions and Strains’, in Rulemaking by the European Commission: The New System for Delegation of Powers, Bergström, C.F., and Ritleng, D., (dir.), Oxford University Press, 2016, pp. 173 to 202.
66 See, to that effect, judgment of 15 October 2014, Parliament v Commission (C‑65/13, EU:C:2014:2289, paragraph 44 and the case-law cited).
67 See the judgment in Fenix International (paragraph 50).
68 As the SRB set out at the hearing, ‘it is the contribution as a whole which is in proportion to the risk profile’. See also the explanatory memorandum and recital 6 of the proposal for an implementing regulation.
69 See judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraph 131).
70 See, by analogy, judgment of 23 October 2007, Parliament v Commission (C‑403/05, EU:C:2007:624, paragraphs 52 to 59), in which the Court held that the regulation conferring an implementing power on the Commission, which concerned the administration of the financial and technical assistance as well as the economic cooperation with Asian and Latin American developing countries, did not contain an explicit reference to the fight against terrorism and international crime, an area covered by the 2022 SRB decision, adopted by the Commission in implementation of that regulation.
71 See Article 70(2)(a) of the BRRD.
72 See the second subparagraph of Article 103(2) of the BRRD and recital 5 of Delegated Regulation 2015/63.
73 See, to that effect, judgment of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, EU:C:2021:601, paragraphs 128 and 130).
74 See recital 21 of Delegated Regulation 2015/63.
75 Emphasis added.
76 The SRB confirmed at the hearing that that reference covers all provisions of Delegated Regulation 2015/63 and the entire method of calculation specified therein.
77 See, inter alia, recitals 7 and 9 of the Intergovernmental Agreement, from which it is apparent that, whilst the BRRD and the SRM Regulation lay down the general criteria to determine the fixing and calculation of contributions, that agreement establishes the obligation of participating Member States to transfer the contributions raised at national level to the SRF, in accordance with uniform criteria, modalities and conditions, in particular, the allocation during a transitional period of the contributions they raise at national level to different compartments corresponding to each Contracting Party, as well as the progressive mutualisation of the use of the compartments in such a manner that the compartments will cease to exist at the end of the transitional period.
78 I note that, at the hearing, the SRB acknowledged that it would have been technically possible to mutualise contributions within the SRF progressively without adjusting the method of calculation during the transitional period.
79 Thus, Article 8(1)(a) of Implementing Regulation 2015/81 provides that, in the first year of the initial period, institutions are to contribute 60% of their annual contributions calculated according to the methodology under the BRRD. However, under Article 5(1)(a) of the Intergovernmental Agreement, during the first year of the transitional period, recourse is to be had, in the first place, to all the financial means available within the compartments corresponding to the Contracting Parties where the institution or the group concerned under resolution is established or authorised.
80 See point 1, footnote 2, and points 14, 18 to 24 and 39 of the opinion of the Council’s legal service.
81 The adjusted method of calculation contained in Article 8(1) of Implementing Regulation 2015/81 appears to have been the result of negotiations led in particular by the French Republic, which sought to neutralise in part the distortions linked to the specific features of its banking sector since, by transitioning to the Single Resolution Mechanism, the contributions of French institutions were beginning to exceed those due under the purely national resolution system. See 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, in particular pp. 19 and 20, available at the following address: https://www.senat.fr/rap/l14-307/l14-3071.pdf.
82 C‑695/20, EU:C:2022:685, point 42. See also Opinion of Advocate General Jääskinen in United Kingdom v Parliament and Council (C‑270/12, EU:C:2013:562, point 78), in which he stated that ‘the borderline between supplementing a legislative act with non-essential elements and providing more detailed implementing rules is not always easy to draw’.
83 See Craig, P., ‘Comitology, Rulemaking, and the Lisbon Settlement: Tensions and Strains », op. cit., in particular pp. 177 and 178; Chamon, M., ‘Only Fans of the Council’s implementing powers in Luxembourg: Fenix International’, op. cit., in particular pp. 1698 and 1699.
84 C‑270/12, EU:C:2013:562, point 78 and footnote 103.
85 I note that, as correctly observed by Hypo Vorarlberg Bank and Volkskreditbank, in the judgment of 20 December 2023, Landesbank Baden-Württemberg v SRB (T‑389/21, EU:T:2023:827, paragraphs 228 to 237), the General Court considered the powers enjoyed by the Commission in the context of a delegated power concerning the implementation of Article 103(7) of the BRRD. It is in that context that the General Court essentially held that the broad discretion afforded to the Commission in the application of the provision at issue of the BRRD could entail, where appropriate, the need to provide for transitional periods during which certain risk indicators listed in that provision would not be applied on account, inter alia, of the non-availability of the data necessary for their calculation.
86 I have not taken a view here on the more specific question whether the adjusted method of calculation or, more specifically, the choice to adjust the data base serving as the basis for the calculation of the contributions, can be categorised as an ‘essential element’ of the basic legislative act, the adoption of which requires political choices falling within the responsibilities of the EU legislature, such that they cannot be delegated or appear in implementing acts (in that regard, see, to that effect and by analogy, the judgment in Fenix International (paragraphs 41 and 42 and the case-law cited)), or whether such a matter could, where appropriate, be delegated to the Commission, as had been envisaged in the course of the legislative process (see Article 66 of the Commission proposal for the SRM Regulation).
Since, in my view, such a question goes beyond the scope of this appeal, I would simply recall that, while the EU legislature has discretion when it decides to confer a delegated power pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU (see judgment of 18 March 2014, Commission v Parliament and Council (C‑427/12, EU:C:2014:170, paragraph 40)), it must exercise that discretion in compliance with the conditions laid down in Articles 290 and 291 TFEU (see judgment of 16 July 2015, Commission v Parliament and Council (C‑88/14, EU:C:2015:499, paragraph 28)).
87 Judgment of 13 June 1958 (9/56, 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.
88 The appellants refer inter alia to the judgments of 14 November 2019, State Street Bank International (C‑255/18, 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, EU:C:2021:601, paragraph 113).
89 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.
90 See point 4.3.2. of the explanatory memorandum to the proposal for the SRM Regulation.
91 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).
92 See, more specifically, Article 102(1) of the BRRD.
93 Judgment of 13 June 1958 (9/56, EU:C:1958:7).
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