delivered on 13 May 2025 (1)

Case C‑602/22 P

ABLV Bank AS, in liquidation

Single Resolution Board (SRB)

( Appeal – Economic and monetary policy – Banking union – Regulation (EU) No 806/2014 – Articles 7 and 18 – Single resolution mechanism – Decision of the Single Resolution Board not to initiate the resolution procedure – Power of the Single Resolution Board – Discretion – Scope of judicial review )

I.Introduction

1.The main subject matter of this appeal is the definition and delimitation of the powers and prerogatives of the Single Resolution Board (‘SRB’). The Court of Justice must, in particular, settle the question regarding the SRB’s power to take a formal decision not to adopt a resolution scheme in respect of a credit institution under the Single Resolution Mechanism (‘SRM’). (2)

2.In the present appeal, ABLV Bank AS (‘ABLV Bank’) seeks to have set aside the judgment of the General Court of the European Union of 6 July 2022, ABLV Bank v SRB (T‑280/18, EU:T:2022:429; ‘the judgment under appeal’), by which that court dismissed its action against two decisions of the SRB. (3) In summary, (4) the SRB decided, by those decisions, not to adopt any resolution scheme in respect of ABLV Bank and its subsidiary ABLV Bank Luxembourg SA (‘ABLV Bank Luxembourg’). The SRB found that, in the present case, the two conditions laid down in Article 18(1)(a) and (b) of the SRM Regulation for the adoption of a resolution scheme – namely that the entity concerned is failing or is likely to fail and there are no alternative measures to resolution – were satisfied. However, the SRB ultimately adopted a decision not to adopt a resolution scheme, finding that the third condition, laid down in point (c) of that provision – namely that resolution is necessary in the public interest – was not satisfied in the present case.

3.In the judgment under appeal, the General Court considered inadmissible the action brought by ABLV Bank in so far as it challenged the SRB’s decision in respect of its subsidiary ABLV Bank Luxembourg. The General Court rejected on the merits all the pleas raised in support of the action brought against the SRB’s decision in respect of ABLV Bank.

II.The appeal

4.ABLV Bank asks the Court of Justice to set aside the judgment under appeal, to annul the decisions at issue, to order the SRB to pay the costs at both instances and, if the Court is unable to rule on the action at first instance, to refer the case back to the General Court.

5.The SRB and the European Central Bank (ECB), the intervener at first instance, ask the Court, in essence, to dismiss the appeal and to order ABLV Bank to pay the costs.

6.In support of its appeal, ABLV Bank relies on four grounds of appeal, which are all contested by the SRB and the ECB. The present Opinion will focus primarily on the first ground of appeal, which covers the main question of law, as summarised in point 1. As a preliminary point, however, it is appropriate to examine the SRB’s plea that the appeal is inadmissible.

A.Admissibility of the appeal

7.The SRB contends that the appeal is inadmissible. It argues that the appeal is vague and incoherent, fails to provide a summary of the grounds of appeal relied on, often fails to identify the contested paragraphs of the judgment under appeal, and fails to set out the legal arguments in support of the grounds of appeal relied on. It is difficult therefore to identify the errors that the General Court made.

8.In that regard, it is settled case-law that an appeal must indicate precisely the contested elements of the judgment under appeal and also the legal arguments specifically advanced in support of the appeal, failing which the appeal will be dismissed as inadmissible. (5)

9.In the present case, the appeal is not always clear and coherent and does not comprehensively specify the contested elements of the judgment under appeal. Nevertheless, it contains sufficient information to identify the contested paragraphs of the judgment under appeal in each of the grounds and a sufficiently precise statement of most of the arguments put forward. It follows that, in my opinion, the appeal is not inadmissible in its entirety. However, several specific arguments of ABLV Bank will be rejected as inadmissible on account of their unclear nature.

B.Substance of the appeal

1.The first ground of appeal

10.By the first ground of appeal, ABLV Bank challenges paragraphs 73 to 86 of the judgment under appeal, alleging a misinterpretation of Article 18 of the SRM Regulation and several other related errors.

11.In the first place, in those paragraphs of the judgment under appeal (paragraphs 73 to 78), the General Court rejected ABLV Bank’s plea alleging that the SRB did not have the power to decide on its liquidation, concluding that in the decisions at issue, the SRB had not ordered the liquidation of ABLV Bank. In the second place (paragraphs 79 to 86), the General Court rejected ABLV Bank’s plea alleging that the SRB did not have the power to take formal decisions not to adopt resolution schemes such as the decisions at issue. The General Court concluded that the SRB did have the power to adopt such decisions, basing that conclusion on three elements: (a) the need to prevent any lacuna in judicial protection for the ECB’s assessment of whether an entity is failing or is likely to fail (paragraph 82 of the judgment under appeal); (b) the regulatory context for Article 18 of the SRM Regulation, with reference in particular to Article 82(2) of Directive 2014/59/EU (6) (paragraph 83 of the judgment under appeal); (c) the risk of compromising the stability of the institution concerned and potentially of the financial markets in the event that the SRB lacks the power to take a formal decision not to adopt a resolution scheme (paragraph 84 of the judgment under appeal).

12.The legal analysis regarding the first ground of appeal will be divided into three parts: (a) the first relating to the complaint that the SRB does not have the power to take formal decisions not to adopt resolution schemes such as the decisions at issue; (b) the second relating to the complaint that the General Court’s interpretation is incompatible with the case-law on the delegation of powers to agencies; (c) the third relating to the other complaints raised in the first ground of appeal.

(a)First part of the first ground of appeal relating to the SRB’s power to adopt the decisions at issue

(1)Arguments of ABLV Bank

13.ABLV Bank submits that, in paragraphs 79 to 86 of the judgment under appeal, the General Court misinterpreted Article 18 of the SRM Regulation by concluding that the SRB had the power to take a formal decision regarding the adoption (or, in this instance, non-adoption) of a resolution scheme.

14.According to ABLV Bank, the General Court’s interpretation confers powers on the SRB which are not provided for in Article 18 of the SRM Regulation and has no basis in the text of that provision. Rather, it is based on an implicit application by analogy of the provisions governing the adoption of a resolution scheme.

15.The General Court’s interpretation confers the power on the SRB to adopt a decision that produces external legal effects including where only two of the three conditions laid down in Article 18(1) are satisfied and therefore no resolution scheme is adopted. However, in ABLV Bank’s view, if the SRB concludes that a resolution action is not necessary in the public interest, it should refrain from adopting any decision at all.

16.ABLV Bank claims that the recent judgment of the Grand Chamber in the case Commission v SRB (7) confirmed that Article 18 of the SRM Regulation does not confer the power on the SRB to adopt acts producing independent legal effects.

17.ABLV Bank also challenges paragraph 83 of the judgment under appeal: in the first place, Article 82(2) of Directive 2014/59, mentioned therein, which provides for the possibility of taking decisions not to adopt resolution schemes, allegedly concerns only the national resolution authorities and therefore cannot apply to the SRB. In the second place, it submits that the absence in the SRM Regulation of a provision equivalent to that provided for in the abovementioned provision is not an involuntary omission by the EU legislature. ABLV Bank also challenges paragraph 84 of the judgment under appeal, which is based on a logic not provided for in the SRM Regulation.

(2)Analysis

18.In answer to the complaint of misinterpretation of Article 18(1) of the SRM Regulation, that provision must be interpreted in accordance with the methods of interpretation used by the Court of Justice.

19.According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (8)

20.I will now proceed with a literal, contextual and teleological analysis of Article 18(1) of the SRM Regulation to ascertain whether, as ABLV Bank alleges, the General Court, in the judgment under appeal, in recognising SRB’s power to take formal decisions not to adopt resolution schemes in the light of the fact that the conditions for the adoption of a resolution scheme are not satisfied, has misconstrued that provision.

21.As a preliminary point, I note that, although ABLV Bank bases its complaint exclusively on the infringement of Article 18(1) of the SRM Regulation, another provision of the regulation is relevant to determine whether the General Court was correct in finding that the SRB has the power to take decisions such as those at issue. I am referring to Article 7(2), according to which the SRB is responsible for ‘adopting all decisions relating to resolution’ for entities within its jurisdiction. (9) Indeed, it is that provision that, in my opinion, explicitly confers a decision-making power on the SRB within the framework of the division of tasks provided for by the SRM Regulation.

22.To assess whether ABLV Bank’s complaint is well founded, it is therefore necessary to interpret those two provisions on the basis of a combined reading, according to the abovementioned methods of interpretation.

23.From a literal point of view, the wording of Article 7(2) of the SRM Regulation, which uses the generic terms ‘all’ and ‘decisions relating to resolution’ (10) reveals the intention of the legislature to provide a comprehensive formula that confers the power on the SRB to adopt any resolution decision in respect of entities subject to the EU’s resolution powers. (11)

24.Article 18(1) of the SRM Regulation, on the other hand, authorises the SRB to adopt a resolution scheme if the three conditions laid down in points (a), (b) and (c) are satisfied.

25.Decisions (such as the decisions at issue) that determine that the conditions for the adoption of a resolution scheme are not satisfied are decisions ‘relating to resolution’, which therefore fall within the broad phrasing of Article 7(2) of the SRM Regulation.

26.The wording of Article 7(2) of the SRM Regulation, read in conjunction with Article 18(1) thereof, therefore supports the interpretation of the two provisions to the effect that the SRB does have the power to take a formal decision not to adopt a resolution scheme on the basis of the three conditions laid down in the latter provision.

27.This is confirmed by the contextual and teleological interpretation of those provisions.

28.With regard to the regulatory context and the provisions of the SRM Regulation as a whole, the system established for the division of tasks within the SRM, as provided for in Article 7 of the regulation, requires the SRB to have the power to take a formal decision not to adopt a resolution scheme. The SRB’s decision not to initiate an EU resolution action means that measures will be taken by national authorities. It is necessary therefore for the national authorities to be informed that the SRB has closed the procedure at EU level and that the EU does not intend to exercise its resolution powers. Any other interpretation of the relevant provisions would create a situation of uncertainty within the SRM that is incompatible with the system for the division of powers provided for by the SRM Regulation.

29.Still from a contextual point of view, conferring the power on the SRB to take a formal decision not to adopt a resolution scheme is also consistent with the need to avoid any lacuna in the judicial protection of the entity concerned. (12) Indeed, if the SRB cannot take a formal decision not to adopt a resolution scheme that is open to challenge before the Courts of the European Union, then it would be impossible to pursue a judicial review of the ECB’s assessment of whether an entity is failing or is likely to fail – within the meaning of Article 18(1)(a) – an assessment which, as a preparatory measure for the procedure, is not a challengeable act. (13)

30.Lastly, from a teleological point of view, the proposed interpretation is consistent with the objective of the SRM Regulation of dealing effectively with unsound or failing credit institutions and the effectiveness of the SRM itself, as stated in recitals 89 and 123 of the SRM Regulation. (14) Indeed, in such situations the speed of intervention is often decisive. (15) In the absence of a formal decision confirming that the European Union will not be exercising its resolution powers, the situation of uncertainty as to whether or not those powers will be exercised in respect of an entity risks jeopardising the swift adoption of measures and thus their effectiveness.

31.In that sense, the abovementioned interpretation is also consistent with the objectives of the SRM Regulation to maintain financial stability, ensure the continuity of essential financial services and protect depositors, as stated in recital 58 of the regulation. (16) The situation of uncertainty resulting from the absence of a formal decision not to adopt a resolution scheme, giving rise to doubts as to the decisions and measures that will be taken vis-à-vis an entity following the ECB’s assessment that the entity is failing or is likely to fail, would increase the risks for that entity and also consequently the risks of contagion. (17)

32.The interpretation according to which the SRB has the power to take formal decisions finding that the conditions laid down in Article 18(1) of the SRM Regulation are not satisfied is not called into question by the judgment in Commission v SRB. In that judgment, the Court held that a resolution scheme adopted by the SRB does not constitute a challengeable act. In effect, the resolution scheme does not constitute the outcome of the resolution procedure, which materialises only through the endorsement of the scheme by the Commission. (18) In particular, in paragraph 83 of the judgment in Commission v SRB, the Court held that while Articles 7 and 18 of that regulation provide that the SRB is responsible for drawing up and adopting a resolution scheme, ‘they do not confer on it the power to adopt an act producing independent legal effects’.

33.Nevertheless, it is clear from the subject matter of the case that led to the judgment in Commission v SRB that, in that judgment, the Court referred exclusively to the adopted resolution scheme – that is to say, to a formal decision of the SRB to adopt a resolution scheme that does not produce independent legal effects. The formal decision not to adopt a resolution scheme is, on the other hand, the final act of the procedure before the SRB. That decision thus constitutes an act that necessarily produces independent legal effects and is open to challenge under Article 263 TFEU.

34.Lastly, ABLV Bank’s arguments challenging paragraph 83 of the judgment under appeal do not call into question the correctness of the General Court’s finding regarding the conferral on the SRB of the power to take a formal decision not to adopt a resolution scheme. In that paragraph, the General Court did not find that Article 82(2) of Directive 2014/59 was applicable in the present case. The General Court referred to that provision in the context of an analysis of the broader regulatory context of Article 18 of the SRM Regulation.

35.It follows from the foregoing that the first part of the first ground of appeal must, in my opinion, be rejected.

(b)Second part of the first ground of appeal relating to the case-law on the delegation of powers to agencies

(1)Arguments of ABLV Bank

36.ABLV Bank submits that the interpretation of Article 18(1) of the SRM Regulation adopted by the General Court in the judgment under appeal is incompatible with the case-law on the delegation of powers to agencies resulting from the judgment in Meroni v High Authority. (19) ABLV Bank submits that the SRB is an agency whose powers must be strictly defined. It claims that the SRM Regulation expressly recognises the need to limit the SRB’s powers by referring, in recital 26, to the abovementioned case-law. However, contrary to that requirement, the interpretation adopted by the General Court grants the SRB extensive powers to decide permanently a bank’s future, without the intervention of the Commission and Council and with no limitation of a procedural or substantive nature.

(2)Analysis

37.As a preliminary point, I note that in the recent judgment in Commission v SRB, the Court examined the compatibility of the powers conferred on the SRB by Article 18 of the SRM Regulation in the light of the case-law resulting from the judgment in Meroni v High Authority, in the opposite situation to that in the present case, namely the adoption of a resolution scheme. In that judgment, the Court concluded that the provisions of that article authorising the SRB to adopt a resolution scheme are such as to avoid a ‘transfer of responsibility’, within the meaning of that case-law. (20) The Court relied on the finding that, while conferring on the SRB the power to assess whether the conditions for the adoption of a resolution scheme are satisfied – and the power to determine the tools necessary for the purposes of such a scheme – those provisions confer on the Commission, or, as the case may be, on the Council, the responsibility for the final assessment of the discretionary aspects of the resolution scheme which come within the scope of EU policy for the resolution of credit institutions. (21)

38.ABLV Bank’s complaint in the second part of the first ground of appeal is based on an erroneous assumption, in so far as it seeks to equate two completely different scenarios. It is equivalent, in essence, to arguing that the Court’s reasoning in the judgment in Commission v SRB regarding the SRB’s power to adopt a resolution scheme should also apply to its power to take a decision not to adopt such a scheme. In the absence of the participation of the institutions in the procedure for adopting such decisions, giving the SRB the power to take such decisions would be incompatible with the case-law on the delegation of powers to agencies. (22)

39.However, the power to take decisions not to adopt resolution schemes, such as the one at issue in the present case, is very different from the power exercised in the opposite case of the adoption of a resolution scheme, which is the subject of the judgment in Commission v SRB.

40.When adopting a decision not to adopt a resolution scheme, the SRB decides that the conditions laid down in Article 18(1) of the SRM Regulation, justifying the exercise of the EU’s resolution powers, have not been satisfied. A decision not to adopt a resolution scheme results in the closure of the resolution procedure at EU level. Any actions will be taken, where appropriate, at national level, if the conditions laid down by the applicable national legislation are satisfied.

41.A decision not to adopt a resolution scheme thus constitutes a decision not to exercise the resolution powers falling within the resolution policy of the European Union. By contrast, a decision to adopt a resolution scheme entails the initiation of the proper resolution procedure and the full exercise of the resolution powers falling within the resolution policy of the European Union, which only EU institutions may pursue. (23)

42.In that context, the scope of the assessments that the SRB is required to make for the taking of a decision not to adopt a resolution scheme is also much more limited. In the event of a decision not to adopt a resolution scheme, the assessments that the SRB must make are limited to determining that the three conditions laid down in Article 18(1) of the SRM Regulation have not been satisfied. They do not extend, as in the case of the adoption of a resolution scheme, to determining the resolution tools or the need for use of the Single Resolution Fund provided for in Article 18(6)(c) of the SRM Regulation.

43.As to the nature of the assessment of whether the three conditions laid down in Article 18(1) of the SRM Regulation are satisfied, the Court has held that the SRB has discretion (24) irrespective of whether that assessment leads to a decision to adopt a resolution scheme or to a decision not to adopt a resolution scheme. (25) However, the Court has also acknowledged that that discretion is circumscribed, under Article 18(1), (4) and (5) of the SRM Regulation, by objective criteria and conditions delimiting the SRB’s scope of action. (26)

44.The assessment of whether or not the three conditions laid down in Article 18(1) of the SRM Regulation are satisfied involves technical choices and complex appraisals (27) of a technical nature and an economic/supervisory nature. (28) Conversely, that assessment does not involve ‘political’ choices, which are reserved exclusively for the EU’s political bodies.

45.In assessing whether those conditions have been satisfied, the SRB therefore exercises discretion of a ‘technical’ nature rather than of a ‘political’ nature. (29)

46.It follows from all of the foregoing that, in the event of a decision not to adopt a resolution scheme, the delegation of powers to the SRB, being limited to the power to determine, on the basis of assessments that are essentially technical in nature, that the conditions for the exercise of the resolution action by the EU have not been satisfied, has a much narrower scope than in the case of the adoption of a resolution scheme. The delegation and the resulting margin of discretion differ in scope from the adoption of a resolution scheme: since no political discretion is exercised, the participation of ‘political’ institutions in the adoption of such decisions not to adopt resolution schemes is not necessary.

47.Furthermore, the reasons set out in recitals 24 and 26 of the SRM Regulation justifying the need for the Commission and Council to intervene in the event of the adoption of a resolution scheme do not justify their participation in the procedure for the adoption of a decision not to adopt a resolution scheme.

48.More specifically, as regards the participation of the Commission, in the event of a decision not to adopt a resolution scheme, since there is no resolution action by the European Union, there can be no review of the discretionary aspects of the resolution scheme. (30)

49.As for the participation of the Council, in the event of the taking of a decision not to adopt a resolution scheme, since the Fund is not being used, it is not necessary to examine the amount of resources to be used, nor to consider the impact that the resolution would have on the financial stability of the Member States and the European Union as a whole, not to mention the budgetary sovereignty of the Member States. In the absence of a resolution action by the European Union, the weighting of the different objectives and interests at stake will thus potentially be at the national level, as provided for by the system of division of powers established by the SRM Regulation.

50.In conclusion, it follows from the findings above that conferring on the SRB the power to take decisions finding that the conditions laid down in Article 18(1) of the SRM Regulation are not satisfied does not delegate to that body the power to adopt an economic policy measure on behalf of the European Union, but merely the power to make assessments in which it exercises its technical discretion. Accordingly, it does not involve any ‘actual transfer of responsibility’, incompatible with the case-law of the Court on the delegation of powers to agencies resulting from the judgment in Meroni v High Authority.

51.Consequently, the second part of the first ground of appeal must, in my view, also be rejected.

(c)Third part of the first ground of appeal relating to the other complaints

52.In the first ground of appeal, ABLV Bank raises a series of other complaints against paragraphs 73 to 86 of the judgment under appeal.

53.In the first place, ABLV Bank submits that the subsequent practice followed by the SRB shows that it does not agree with the General Court’s interpretation of Article 18 of the SRM Regulation.

54.First and foremost, that argument is, in my opinion, inadmissible, since it does not identify in any way the contested elements of the judgment under appeal that are allegedly vitiated by errors of law. (31) In any event, it is also immaterial on the substance. Even assuming that the SRB had changed its practice – which the SRB denies – such a change would be irrelevant for the purposes of the present case, since it has no impact on the legitimacy of the General Court’s interpretation of Article 18 of the SRM Regulation.

55.In the second place, ABLV Bank submits that the General Court failed to determine correctly the legal effects of the decisions at issue. Those decisions, which contain binding determinations for two of the conditions laid down in Article 18(1) of the SRM Regulation, were detrimental to the legal position of ABLV Bank, without resulting in its direct liquidation. The General Court should have comprehended the nature of those decisions and their legal effects before examining whether they were lawful. Lastly, the General Court found that the SRB may issue instructions to national resolution authorities, without, however, specifying the type of instructions.

56.I seriously doubt whether that complaint is admissible either. Once again, ABLV Bank fails to identify the contested parts of the judgment under appeal. In any event, that complaint is also unfounded. In paragraphs 34 and 49 of the judgment under appeal, the General Court expressly acknowledged that the decision at issue directly affected the legal position of ABLV Bank. That is the reason why that bank is directly concerned by that decision and, therefore, has standing to bring proceedings against it, even though it is not the addressee. The General Court has therefore examined and comprehended the nature of the decisions at issue and their legal effects. Furthermore, in the judgment under appeal, the General Court did not find that the SRB issues instructions to the national authorities.

57.In the third place, ABLV Bank claims that, by failing to recognise that the decisions at issue require the liquidation of ABLV Bank and ABLV Bank Luxembourg, the General Court distorted their content. On the one hand, the wording of the decisions at issue requires the national resolution authorities to implement those decisions and leaves no doubt as to the need for liquidation. On the other hand, the General Court incorrectly equated the concept of a challengeable act under Article 263 TFEU to a specific physical document. That concept concerns the content of the decisions at issue. Therefore, in the light of the press release issued by the SRB on 24 February 2018, (32) the General Court should have concluded that the decisions at issue had required the liquidation of ABLV Bank and ABLV Bank Luxembourg.

58.In that regard, the arguments that the decisions at issue mandated the liquidation are unfounded. Indeed, as follows from the express wording of the judgment of 24 February 2022, Bernis and Others v SRB (C‑364/20 P, not published, EU:C:2022:115), the decisions at issue did not require the liquidation of the two entities in question. (33) Moreover, as the General Court observes in paragraph 75 of the judgment under appeal, it is apparent from paragraph 49 of the judgment in ABLV Bank that the liquidation of that bank arose from a decision taken by the shareholders of that company.

59.The arguments relating to the press release issued by the SRB on 24 February 2018 are also unfounded. Even accepting that there is an inconsistency between the text of the decisions at issue and the press release, the General Court did not err in law by ruling, in paragraph 77 of the judgment under appeal, that a document such as a press release cannot alter the content of a formal decision.

60.In the fourth place, ABLV Bank submits that the General Court implicitly distorted the concept of an ‘addressee’ of an act within the meaning of Article 263 and Article 297(2) TFEU. It should have considered that the addressee of an act designates the person whose legal position has been affected and not the authority responsible for enforcing the act. It follows that ABLV Bank and ABLV Bank Luxembourg should have been regarded as the addressees of the decisions at issue.

61.That complaint is ill founded. It follows precisely from the case-law that the concept of addressee of the act, within the meaning of the fourth paragraph of Article 263 TFEU, is to be understood for the purposes of that provision in a formal sense, as referring to the person designated in the act as its addressee. The fact that a person other than the formal addressee of an act may be affected by its content may certainly entitle that person to bring proceedings, but does not confer on it the status of addressee of the act in question. (34)

62.In the fifth place, ABLV Bank argues that the decisions at issue are vitiated by serious procedural defects which should have been identified by the courts of their own motion. ABLV Bank’s right to be heard and its right to have access to the administrative file had not been respected in the proceedings that led to the adoption of the decision at issue. Furthermore, that decision was not correctly notified to ABLV Bank and no statement of reasons was given.

63.The complaints relating to the alleged procedural defects are, in my view, also inadmissible. Once again, ABLV Bank gives no indication of the contested elements of the judgment under appeal. In particular, the complaint concerning the alleged failure to discharge the obligation to state reasons is not supported by any argument.

64.It follows from the foregoing that, in my opinion, the first ground of appeal must be rejected in its entirety.

2.The second ground of appeal

65.By its second ground of appeal, ABLV Bank challenges the part of the judgment under appeal (35) in which the General Court rejected its pleas in law relating to the assessment of whether the entity is likely to fail within the meaning of Article 18(1)(a) of the SRM Regulation. The SRB and ECB dispute all the complaints raised in the second ground of appeal.

66.As a preliminary matter, it is appropriate to reject the SRB’s plea of inadmissibility according to which the present ground of appeal is inadmissible in its entirety. Admittedly, the presentation of ABLV Bank’s arguments is unclear in places. Most of the time, however, the appeal makes it possible to identify the contested elements of the judgment under appeal and to comprehend ABLV Bank’s arguments, allowing the Court to carry out its judicial review.

(a)The scope of judicial review

67.ABLV Bank submits that in paragraphs 90 to 96 of the judgment under appeal, the General Court took an excessively restrictive view of the scope of judicial review by the Courts of the European Union of the assessment of whether an entity is failing or is likely to fail, within the meaning of Article 18(1)(a) of the SRM Regulation. In doing so, the General Court infringed Article 47 of the Charter of Fundamental Rights of the European Union, as well as the case-law of the Court of Justice and the European Court of Human Rights. It incorrectly held that such a review should be more limited than that carried out by national courts in insolvency matters.

68.In that regard, it follows from the case-law mentioned in point 43 above that the SRB has discretion in assessing whether the conditions laid down in Article 18(1) of the SRM Regulation have been satisfied. Specifically, it is clear from the case-law mentioned in point 44 above that, in assessing whether a credit institution is failing or is likely to fail, the SRB is called upon to make technical choices and complex forecasts and appraisals.

69.In that connection, the Court has held that, given that margin of discretion, the judicial review which the Courts of the European Union must carry out of the merits of the grounds of decisions concerning the adoption of a resolution scheme – which includes the assessment of whether an entity is failing or is likely to fail – must not lead it to substitute its own assessment for that of the SRB, but seeks to ascertain that that decision is not based on materially incorrect facts and that it is not vitiated by a manifest error of assessment or misuse of powers. (36)

70.It follows that the General Court did not err in law in the judgment under appeal as regards the determination of the scope of judicial review by the Courts of the European Union of the assessment of whether an entity is failing or is likely to fail.

71.Nevertheless, in that respect, I note that precisely in consideration of the SRB’s technical discretion in determining whether the criteria laid down in Article 18(1) of the SRM Regulation have been satisfied, a rigorous judicial review, albeit within the limits expressed above, is of particular importance. (37)

It is settled case-law that, where technical discretion is exercised, observance of procedural guarantees is of fundamental importance, including the obligation for EU institutions to examine carefully and impartially all the relevant aspects of the situation in question. In such situations, the Courts of the European Union must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it. (38)

73.Specifically, the complex nature of the economic assessments made by resolution authorities should not prevent the courts from examining whether the evidence relied on by the resolution authority is factually accurate, reliable and consistent, whether that evidence contains all relevant information which should be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn therefrom. (39) The SRB will therefore be required to base its decisions on solid, accurate, reliable and consistent evidence, and to give a full statement of reasons for its decision, disclosing the various passages of logical argument supporting the decision. (40) The evidence and statement of reasons must be subject to rigorous review by the Courts of the European Union, especially since the SRM Regulation does not provide for the possibility of bringing an action against decisions adopted pursuant to Article 18 of the SRM Regulation before the Appeal Panel established under Article 85 of that regulation. (41)

(b)The other complaints raised in the second ground of appeal

74.In the second ground of appeal, ABLV Bank raises a series of other complaints against paragraphs 97 to 146 of the judgment under appeal.

75.In the first place, ABLV Bank submits that the General Court distorted the file by finding that the decision at issue in respect of ABLV Bank contained an implicit assessment by the SRB of whether that bank is failing or is likely to fail, while the SRB stated, in its defence, that the ECB had carried out that assessment alone and that the SRB had only been consulted.

76.That complaint is based on a manifestly incorrect reading of paragraphs 103 to 108 of the judgment under appeal. In those paragraphs, the General Court did not find the existence of any implicit assessment. It merely correctly found that, in accordance with the case-law, the SRB could adopt and rely on the ECB’s assessment as to whether the condition laid down in Article 18(1)(a) of the SRM Regulation had been satisfied.

77.In the second place, ABLV Bank submits that the General Court distorted the facts by omission by not taking into account the judgment of the Tribunal d’arrondissement de Luxembourg (District Court, Luxembourg) of 9 March 2018, as well as other subsequent events that called into question the SRB’s assessments on which the decisions at issue were based.

78.In that respect, the judgment of the Luxembourg court is manifestly irrelevant in this context, if only for the reason that it concerns not ABLV Bank, but ABLV Bank Luxembourg, for which ABLV Bank’s action was declared inadmissible. As regards the reference to other subsequent elements, first and foremost, ABLV Bank does not challenge the reasoning contained in paragraphs 97 to 99 of the judgment under appeal in which the General Court rejected the argument relating to subsequent events concerning the liquidity situation of ABLV Bank. In any event, the reference in the appeal to those subsequent events is not substantiated by any evidence.

79.In the third place, ABLV Bank submits that the General Court did not respond appropriately to some of the arguments put forward at first instance. ABLV Bank mentions the following elements: the moratorium, the deposit protection mechanism and the request to convert its Euroclear liquidity into liquidity with the Latvian central bank.

80.If that complaint is to be construed as challenging the merits of the General Court’s assessment of those elements, it is manifestly inadmissible, since ABLV Bank gives no indication whatsoever of the errors vitiating the judgment under appeal. If that complaint is to be construed in the sense that ABLV Bank is alleging a flaw in the reasoning of the judgment under appeal with regard to the General Court’s analysis, it is unfounded. In actual fact, the General Court responded to those arguments in paragraphs 125 to 144 of the judgment under appeal.

81.Lastly, in the fourth place, ABLV Bank submits that the judgment under appeal is based on an erroneous understanding of the concept of bank liquidity, within the meaning of Article 18 of the SRM Regulation. The General Court did not take into account the fact that the liquidity scheme provided for by EU law would be distorted if additional liquidity requirements were imposed on a credit institution in the event of a crisis.

82.In that regard, I note that, in support of its argument concerning the concept of ‘liquidity’, ABLV Bank merely submits that liquidity reserves would be created in good time and would be deliberately used and reduced in a crisis scenario. However, it does not challenge the General Court’s reasoning in paragraphs 111 to 115 of the judgment under appeal. Furthermore, the claim regarding the imposition of additional liquidity requirements is not supported by any evidence.

83.It follows from all the foregoing considerations that the second ground of appeal must also, in my opinion, be rejected.

3.The third ground of appeal

84.By the third ground of appeal, ABLV Bank submits that, in the judgment under appeal, the General Court ignored and/or distorted or treated inappropriately several arguments put forward at first instance. ABLV Bank refers, in the first place, to its argument relating to the failure of the ECB and the SRB to respect the jurisdiction of the Latvian authorities in respect of anti-money laundering and to the existence of a decision in that regard; in the second place, to the argument relating to the opinion of the United States Financial Crime Enforcement Network (FinCEN), which represented an attempt by a third country to exert pressure on the Republic of Latvia in order to have it amend its legislation; in the third place, to the argument relating to doubts as to the impartiality of the SRB and the ECB. Moreover, the General Court did not take sufficient account of several items of evidence presented by ABLV Bank.

85.With regard to the first two arguments, it follows from the case-law that consideration of the reasons why a bank is failing or is likely to fail within the meaning of Article 18(1)(a) of the SRM Regulation is not required under that provision and would also be incompatible with the objectives of that regulation. (42) It follows from paragraph 101 of the judgment under appeal that the General Court was entitled, without making any error, to reject all the arguments relating to those reasons, including those two arguments, considering them irrelevant for the purposes of the lawfulness of the decision at issue in respect of ABLV Bank.

86.As to the third argument, in so far as it must be construed in the sense that ABLV Bank seeks to challenge the infringement of its right to have its questions handled impartially by the SRB, raised at first instance, the General Court responded in paragraphs 179 to 186 of the judgment under appeal. Therefore, ABLV Bank cannot claim that the General Court ignored that argument. Moreover, it does not challenge in its appeal the reasoning contained in that part of the judgment under appeal.

87.Lastly, with regard to the arguments relating to the assessment of the evidence by the General Court, it is settled case-law that the appraisal of those facts and the assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal. (43) The above arguments are therefore inadmissible.

88.It follows from the foregoing considerations that the third ground of appeal must also, in my opinion, be rejected.

4.The fourth ground of appeal

89.By the fourth ground of appeal, ABLV Bank submits that the General Court made a number of errors in examining the admissibility of the appeal against the decision in respect of ABLV Bank Luxembourg.

90.In the first place, ABLV Bank argues that the decisions at issue must be interpreted in accordance with the press release issued by the SRB on 24 February 2018. In the second place, the General Court distorted their content, denying that the decisions at issue require the liquidation of ABLV Bank and ABLV Bank Luxembourg. In the third place, referring to resolution decisions taken by the SRB against other entities, ABLV Bank argues that a resolution decision may affect the legal position of shareholders. It concludes from this that the same applies to a decision not to adopt a resolution scheme.

91.In that regard, I consider the General Court’s reasoning in paragraphs 40 to 45 of the judgment under appeal to be free from errors of law. The General Court correctly applied the case-law (44) in finding that ABLV Bank, as a shareholder of ABLV Bank Luxembourg, was not directly affected by the decision at issue in respect of the latter, since its right to receive dividends and to participate in the management of ABLV Bank Luxembourg had not been affected by the decision not to place that entity under resolution.

92.The arguments put forward by ABLV Bank do not call that finding into question. The first and second arguments referred to in point 90 above were already rejected in points 58 and 59. The third argument relating to resolution decisions taken by the SRB against other entities must also be rejected, since such decisions are irrelevant for the purposes of demonstrating ABLV Bank’s direct interest in the decision at issue concerning its subsidiary.

93.It follows that the fourth ground of appeal must also be rejected and that the appeal must therefore be dismissed in its entirety.

III.Costs

94.Since ABLV Bank has been unsuccessful in its appeal and both the SRB and the ECB applied for their costs to be paid, ABLV Bank must be ordered to pay their costs pursuant to Article 138(1) of the Rules of Procedure of the Court of Justice, which is applicable to the appeal proceedings under Article 184(1) of those rules.

IV.Conclusion

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

–dismiss the appeal;

–order ABLV Bank AS to pay the costs incurred by the Single Resolution Board and the European Central Bank.

—

1Original language: Italian.

2The SRM was established by Regulation (EU) No 806/2014 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’).

3Decisions SRB/EES/2018/09 and SRB/EES/2018/10 of 23 February 2018, respectively (‘the decisions at issue’).

4For a more detailed explanation of the factual background to the present case, I refer the reader to paragraphs 2 to 20 of the judgment under appeal.

5Pursuant to Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as Article 168(1)(d) and Article 169 of the Rules of Procedure of the Court of Justice. See, ex multis, judgment of 14 December 2016, SV Capital v ABE (C‑577/15 P, EU:C:2016:947, paragraph 69 and the case-law cited).

6Directive 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/EEC, 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).

7Judgment of 18 June 2024, Commission v SRB (C‑551/22 P, EU:C:2024:520, ‘the judgment in Commission v SRB’; see, in particular, paragraph 83).

8See, ex multis, judgment of 9 January 2025, Holding Communal (C‑627/23, EU:C:2025:9, paragraph 28 and the case-law cited).

9Namely financial institutions and groups which are considered to be significant for financial stability in the European Union, and other cross-border groups. See, in that regard, the judgment in Commission v SRB, paragraph 75.

10An analysis of the different language versions of the provision in question reveals that the wording used in Italian (‘tutte le decisioni relative alla risoluzione’) is also used in most other languages (for example, ‘all decisions relating to resolution’ in English, ‘alle Beschlüsse im Zusammenhang mit einer Abwicklung’ in German, and ‘todas las decisiones relacionadas con la resolución’ in Spanish). Similar wording is also found in the Portuguese, Greek, Latvian, Hungarian, Romanian, Danish, Swedish, Finnish and Bulgarian versions. Other language versions have a slightly different wording, using the terms ‘all resolution decisions’ (such as ‘toutes les décisions de résolution’ in the French version and ‘alle afwikkelingsbesluiten’ in the Dutch version). Yet even that wording, despite being less common, is compatible with the interpretation of the provision proposed in the following points of the present Opinion.

11The only limitation is the obligation to cooperate with national resolution authorities under Article 31(1) of that regulation.

12As was rightly pointed out by the General Court in paragraph 82 of the judgment under appeal.

13The General Court referred to the judgment of 6 May 2021, ABLV Bank and Others v ECB (C‑551/19 P and C‑552/19 P, EU:C:2021:369, ‘the judgment in ABLV Bank’; see, in particular, paragraphs 56 and 73).

14See also recitals 1 and 120 of Directive 2014/59.

15On the need for swift intervention in crisis situations, see recitals 10, 16, 26 and 31 of the SRM Regulation and recitals 4 and 5 of Directive 2014/59.

16See also judgments of 4 October 2024, Aeris Invest v Commission and SRB (C‑535/22 P, EU:C:2024:819, ‘the judgment in Aeris Invest’, paragraph 164), and García Fernández and Others v Commission and SRB (C‑541/22 P, EU:C:2024:820, ‘judgment in García Fernández’, paragraph 190).

17The General Court was correct to take that view in paragraph 84 of the judgment under appeal. It follows from those considerations that the position of ABLV Bank according to which, if the SRB concludes that resolution action is not necessary in the public interest, it should refrain from taking any decision, is incorrect.

18See Article 18(1), (6) and (7) of the SRM Regulation. See, also, judgment in Commission v SRB, paragraph 94.

19Judgment of 13 June 1958, Meroni v High Authority (9/56, EU:C:1958:7).

20See judgment in Meroni v High Authority, page 41; judgment of 22 January 2014, United Kingdom v Parliament and Council (C‑270/12, EU:C:2014:18, ‘the ESMA judgment’, paragraph 42); and judgment in Commission

v SRB, paragraph 71.

21See judgment in Commission v SRB, paragraph 81.

22I note that, in its appeal, ABLV Bank merely challenges the compatibility of the General Court’s interpretation with that case-law, without specifically raising a plea of illegality under Article 277 TFEU in respect of any provision of the SRM Regulation.

23Recital 24 of the SRM Regulation and judgment in Commission v SRB, paragraph 69.

24See judgments in Commission v SRB, paragraphs 75 and 77, and in Aeris, paragraph 266.

25That finding is sufficient to reject the argument put forward by the SRB at the hearing that, if it were to adopt a decision finding that the criteria laid down in Article 18(1) of the SRM Regulation have not been satisfied, unlike in the case of a decision finding that they have been satisfied, it would have no discretionary power in that regard. Moreover, the SRB’s argument is illogical. There is no logical reason why the power to assess whether certain conditions are satisfied should vary, as regards the discretion exercised, depending on the (positive or negative) outcome of the assessment. The discretionary element concerns the assessment itself and does not depend on its outcome.

26See judgment in Commission v SRB, paragraph 77.

27See judgments in Aeris Invest, paragraph 266 et seq., and in García Fernández, paragraph 275. See also judgment of 11 December 2018, Weiss and Others (C‑493/17, EU:C:2018:1000).

28These are ultimately complex factual assessments comparable to those considered by the Court in the ESMA judgment. See, in particular, paragraph 52 of that judgment. The analysis of the first two conditions requires purely technical assessments. The third condition concerning the existence of the public interest requires discretionary assessments that are general in scope, relating to whether the resolution objectives referred to in Article 14(2) of the SRM Regulation have been achieved. Specifically, the analysis of whether the resolution action is proportionate to the achievement of one or more of those objectives implies a broad margin of discretion. However, in examining that condition, the SRB, despite having to make prospective analyses based on value judgments and speculative forecasts, always bases its assessments on technical criteria. The SRB is not entitled to decide on the basis of political considerations that go beyond the determination of the existence of those technical criteria.

29On the distinction between those categories of discretion, see the Opinion of Advocate General Léger in Rica Foods v Commission (C‑40/03 P, EU:C:2005:93, point 46). See also, more recently, the Opinion of Advocate General Emiliou in ECB v Crédit Lyonnais (C‑389/21 P, EU:C:2022:844).

30It should also be noted that the SRM Regulation provides for the Commission’s involvement in the work of the SRB, and therefore also in the adoption of decisions not to adopt resolution schemes, such as the decisions at issue (see Article 43(3) of the SRM Regulation and the judgment in Commission v SRB, paragraph 78).

31See, ex multis, judgment of 23 January 2019, Deza v ECHA (C‑419/17 P, EU:C:2019:52, paragraphs 93 and 94 and the case-law cited).

32See paragraph 17 of the judgment under appeal.

33See paragraph 50 et seq. of that judgment.

34See judgment of 21 January 2016, SACBO v Commission and INEA (C‑281/14 P, not published, EU:C:2016:46, paragraph 34).

35Paragraphs 90 to 146 of the judgment under appeal.

36See judgments in Aeris Invest, paragraph 266, and in García Fernández, paragraph 275 and the case-law cited.

37See, in that respect, the points made by Advocate General Roemer in his Opinion in Meroni v High Authority (9-56, EU:C:1958:4, p. 108).

38Judgment of 4 May 2023, ECB v Crédit Lyonnais (C‑389/21 P, EU:C:2023:368, paragraphs 56 and 57 and the case-law cited).

39See, to that effect, recital 89 of Directive 2014/59.

40See, to that effect, Opinion of Advocate General Tizzano in Commission v Tetra Laval (C‑12/03 P, EU:C:2004:318, points 87 and 88).

41See, inter alia, decisions of the Appeal Panel in cases 3/17, 7/17, 27/17, 28/17 and 5/22. On the need for rigorous review of technical and economic assessments, see, by analogy, as upheld by the Court of Justice, judgment of 9 March 2023, ACER v Aquind (C‑46/21 P, EU:C:2023:182, paragraphs 53 to 75) concerning the intensity of the Appeal Panel’s review of ACER. In the absence of review by an appeal panel, those requirements apply to the judicial review.

42Judgment in Aeris Invest, paragraphs 163 and 164.

43Judgment in García Fernández, paragraph 211 and the case-law cited.

44Judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraphs 110 and 111). See also judgment of 24 February 2022, Bernis and Others v SRB (C‑364/20 P, not published, EU:C:2022:115, paragraphs 69 and 80).