October 25
2020
Dolores Utrilla
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23rd September 2020
Banking & Finance Institutional law

General Court partially annuls SRB Decision on the calculation of ex ante contributions to the SRF for 2017

The General Court has just given its judgments in Landesbank Baden-Württemberg v CRU (T-411/17), Hypo Vorarlberg Bank v CRU (T-414/17), and Portigon v CRU (T-420/17), three actions for annulment against the Decision of the Executive Session of the Single Resolution Board (SRB) of 11 April 2017 concerning the calculation of the applicants’ ex ante contributions to the Single Resolution Fund (SRF) for 2017.

The General Court made clear that, although the decisions of the SRB on the calculation of the ex ante contributions to the SRF are addressed to the national resolution authorities, those decisions are of direct and individual concern to the institutions which owe those contributions. It thus follows that Landesbank Baden-Württemberg, Hypo Vorarlberg Bank and Portigon have standing to bring an action for annulment of the SRB’s decision.

In its judgments today, the General Court annulled the SRB’s decision in so far as it concerns the applicants, finding that the decision: (i) was not adequately authenticated, and (ii) did not contain an adequate statement of reasons.

According to the General Court, the SRB did not produce any evidence of the authenticity of the annex to its decision. That annex is an electronic document containing the amounts of the ex ante contributions and therefore constitutes an essential component of that decision. The SRB did not, however, send any electronically signed version of the annex to the decision, even though that annex is in no way inextricably linked to the text of the decision signed by hand by the president of the SRB.

Moreover, the General Court noted that the statement of reasons given to each of the applicant institutions did not contain any specific calculation factors. The judgments made clear that the General Court does not call into question the confidential nature of the data corresponding to the other (approximately) 3,500 institutions involved in the SRF, but stressed that, to the extent that it is based interdependently on those data, the calculation of the contributions of the applicants was inherently opaque. In particular, the General Court found that the statement of reasons given to those institutions did not enable them to verify the amount of their contributions, although that is the essential part of the SRB’s decision relating to them.

Lastly, in T-411/17 the General Court ruled that the infringement of the obligation to state reasons stems, in respect of the part of the calculation of the ex ante contribution relating to the risk adjustment, from the partly illegal nature of Commission Delegated Regulation 2015/63. Given that the SRB cannot adopt a new decision without again infringing the obligation to state reasons and the right of Landesbank Baden-Württemberg to effective judicial protection until the legal framework is amended, the judgment maintains the effects of the SRB’s decision in so far it concerns Landesbank Baden-Württemberg for six months from the day on which its judgment becomes final.

The judgments can be accessed here (for T-411/17), here (for T-414/17), and here (for T-420/17).

An Analysis on these judgments by Laura Wissink will be published soon on EU Law Live.

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