Provisional text

delivered on 6 March 2025 (1)

Case C-4/24 P

BNP Paribas Public Sector SA

Single Resolution Board

( Appeal – Economic and monetary policy – Economic and monetary union – Banking union – Single resolution mechanism for credit institutions and certain investment firms (SRM) – Single Resolution Fund (SRF) – Sums paid as collateral backing irrevocable payment commitments – Decision of the Single Resolution Board (SRB) refusing to return the sums paid )

1.This Opinion concerns an appeal brought by the company BNP Paribas Public Sector SA, the appellant in the present case, seeking to have the judgment of the General Court of the European Union of 25 October 2023, BNP Paribas Public Sector v SRB (T‑688/21, EU:T:2023:675; ‘the judgment under appeal’) set aside.

2.By that judgment, the General Court dismissed the appellant’s action, which had been brought pursuant to Article 272 and the first paragraph of Article 340 TFEU and sought, in essence, the return by the Single Resolution Board (SRB) of collateral provided in connection with the irrevocable payment commitments entered into by the appellant between 2016 and 2021 in accordance with the obligations imposed by Regulation (EU) No 806/2014 (2) and Implementing Regulation (EU) 2015/81. (3) The appellant’s action also sought, on the basis of the second paragraph of Article 340 TFEU, a declaration that the refusal to return to it the collateral relating to both the commitments referred to above and the commitment which it had itself entered into previously, in 2015, constituted unjust enrichment which ought to be remedied by way of an award of damages.

3.The General Court held, in particular, that neither the legislative provisions applicable to the present case, in particular Articles 69 and 70 of Implementing Regulation 2015/81, nor the terms of the contract concluded between the appellant and the SRB contradicted the position expressed by the SRB in the letter it sent to the appellant following the request for return of the collateral in question. According to the SRB, the collateral could only be returned after payment of an amount corresponding to the contribution that the irrevocable payment commitments had replaced. Similarly, the General Court held, rejecting the appellant’s position, that the SRB’s decision did not constitute unjust enrichment of that agency.

4.The present appeal provides the Court with the opportunity to interpret key provisions of the regulations which were adopted by the European Parliament and the Council in response to the 2008 financial crisis and are intended to ensure the stability and security of banking activities in the European Union. In the eyes of the appellant, which is supported by the French Republic and by the Fédération bancaire française (French Banking Federation), the General Court should have given precedence, given the clear wording of the applicable provisions – including Article 7(3) of Implementing Regulation 2015/81 – to the literal interpretation of those provisions, rather than the contextual or purposive interpretation. The Court will therefore need to clarify the approach to be taken to the construction of those provisions and determine what meaning is to be given to them.

II. The facts giving rise to the dispute and the main proceedings

5.The background to the dispute was set out by the General Court in paragraphs 2 to 15 of the judgment under appeal and may be summarised as follows.

6.The appellant was an authorised French credit institution until 24 March 2021, the date on which it obtained the withdrawal of its authorisation from the European Central Bank (ECB).

7.Before the Single Resolution Mechanism (SRM) was implemented by Regulation No 806/2014, the appellant provided, for 2015, a part of its ex ante contribution in the form of an irrevocable payment commitment (‘the 2015 IPC’) which was entered into with the SRB, the Autorité de contrôle prudentiel et de résolution (French Authority for Prudential Supervision and Resolution) (ACPR) and the Fonds de garantie des dépôts et de résolution (French Deposit Insurance and Resolution Fund) (FGDR).

8.For the contribution periods from 2016 to 2021, the appellant provided at least part of its ex ante contributions in the form of an irrevocable payment commitment. To that end, it entered into commitments with the SRB for each of those periods (‘the 2016-2021 IPCs’).

9.By email of 1 April 2021, the appellant informed the SRB that, at its request, the ECB had withdrawn its authorisation. The appellant then asked the SRB for information on the steps to be taken to obtain reimbursement of the collateral linked to the irrevocable payment commitments which it had entered into.

10.By letter of 14 April 2021, the SRB indicated to the appellant the formalities to be followed in order to obtain repayment of the collateral backing those commitments.

11.On 29 July 2021, following several exchanges of correspondence, the appellant notified the SRB of the termination of the 2015 IPC and the 2016-2021 IPCs.

12.Following further exchanges, the SRB, by letter of 13 August 2021, informed the appellant that it would return to it the collateral backing the 2015 IPC and the 2016-2021 IPCs following receipt of an amount in cash corresponding to the amount committed under those commitments.

13.In that letter, the SRB pointed out that the appellant had entered into several irrevocable payment commitments with it. With respect to each one, the SRB specified the amount committed. After listing those amounts, it stated, inter alia, that, having regard to Article 70(4) of Regulation No 806/2014, according to which duly received contributions are not to be reimbursed to entities, and to Article 7(1) of Implementing Regulation 2015/81, according to which recourse to irrevocable payment commitments must in no manner affect the financial capacity and the liquidity of the Single Resolution Fund (SRF), the cancellation of the 2016-2021 IPCs and the subsequent return of collateral backing those commitments could take place only after the payment in cash of an amount equal to the amount of the commitment concerned. The SRB then invited the appellant to transfer a sum of a certain amount to it and to inform it of this by email. After receipt of that sum, it would return the collateral, less the amount of negative interest accrued, after the expiry of a period of 14 banking days running from the day of receipt of the notice of termination.

14.On 25 October 2021, the appellant, in essence, informed the SRB that, since, according to its understanding of the applicable legal framework, it was not required to transfer to the SRB the cash corresponding to the cumulative sum of the amounts committed under the 2015 IPC and the 2016-2021 IPCs in order to be returned the collateral, it would not proceed with that transfer.

B. Procedure before the General Court and the judgment under appeal

15.By application lodged at the Registry of the General Court on 25 October 2021, the appellant brought its action, based inter alia on Article 272 and the first paragraph of Article 340 TFEU. By that action, the appellant asked the General Court to hold that the position expressed by the SRB in the letter of 13 August 2021 was contrary to the provisions of the 2016-2021 IPCs, and accordingly to order the SRB to return to it the sums corresponding to the cash collateral backing those IPCs. The appellant also asked the General Court to order the payment of all related expenses, default interest and ancillary costs of any kind. Furthermore, on the sole basis of the second paragraph of Article 340 TFEU, the appellant made a similar claim for restitution, albeit by way of damages, both in relation to the 2015 IPC and the 2016-2021 IPCs.

16.The General Court dismissed all of the appellant’s claims, and with them the action as a whole.

17.In the first place, with regard to the claim based on Article 272 and the first paragraph of Article 340 TFEU, the General Court stated, first of all, that it follows from Article 70(1) of Regulation No 806/2014 that, for each contribution year, credit institutions established in a Member State participating in the SRM, as was the case with the appellant until its exit from the scope of that regulation, are required to pay the ordinary contribution to the SRF. (4) The General Court also observed that, in accordance with Article 69(1) of that regulation, the annual collection of ex ante contributions from credit institutions was put in place to ensure that, at the end of the initial period, the available financial means of the SRF reach the target level. (5) Taking into account that objective, the EU legislature specified, in Article 70(4) of that regulation, that ‘duly received’ ex ante contributions were not to be reimbursed. (6)

18.The General Court went on to state that, in order to fulfil their obligation to contribute to the SRF, credit institutions have, in accordance with Article 70(3) of Regulation No 806/2014, the possibility either to pay their contribution immediately or to enter into an irrevocable payment commitment. (7) According to the General Court, in relation to such irrevocable payment commitments, which have the particular feature of being contracts entered into for an unlimited duration allowing institutions to defer payment of their contribution, the EU legislature established a specific regime which is contained in Article 7 of Implementing Regulation 2015/81. (8)

19.In addition, the General Court stated that it is true, as the appellant had submitted to it, that Article 7(3) of Implementing Regulation 2015/81 does not expressly state that institutions must first pay their contribution in order for their collateral to be subsequently returned to them. However, according to the General Court, institutions established in a Member State participating in the SRM are required to pay, during the initial period, an annual contribution to the SRF so that the latter reaches the target level at the end of that period. (9) It follows that if the collateral backing an irrevocable payment commitment were returned without prior receipt of the contribution in respect of which that commitment was entered into, not only would the institution not fulfil its obligation to pay the entire contribution due in respect of the period in which it fell within the scope of Regulation No 806/2014, but the ex ante contribution in the form of an irrevocable payment commitment would not achieve the objective of providing the SRF with financial means corresponding to the level provided for by the EU legislature. (10)

20.Lastly, the General Court held that the fact that an entity ceases to carry on the business of a credit institution during the contribution period, as a result of the withdrawal of its licence, does not affect its obligation to pay the full ex ante contribution due in respect of that contribution period. (11) The purpose of Article 7(3) of Implementing Regulation 2015/81 is therefore not to enable institutions which fall outside the scope of that regulation to avoid their obligation to pay in full the contribution due, but to ensure that the financial means of the SRF will be available to the SRB as quickly as possible in the event of a resolution, that is to say, to safeguard the financial capacity and liquidity of the SRF. (12)

21.In the light, in particular, of the foregoing, the General Court concluded that the position expressed by the SRB in the letter of 13 August 2021, according to which it would be able to return the cash collateral backing the irrevocable payment commitments only after the payment of a sum of an amount corresponding to that of the contribution for which those instruments were used, was not contrary either to the legislative provisions applicable in the present case – including Article 7(3) of Implementing Regulation 2015/81 – or to the terms of the contract concluded between the appellant and the SRB. (13) Similarly, the General Court analysed and rejected, as unconvincing, the further arguments advanced by the appellant in support of its favoured interpretation. (14)

22.In the second place, concerning the appellant’s claim based on the second paragraph of Article 340 TFEU, the General Court held that the SRB’s decision to retain the sums corresponding to the cash collateral linked to the irrevocable payment commitments entered into by the appellant was founded on a valid legal basis and could not, therefore, constitute unjust enrichment justifying compensation by way of damages. (15)

III. Forms of order sought

23.By its appeal, lodged with the Court on 10 January 2024, the appellant, supported by the French Republic and the Fédération bancaire française, claims that the Court should:

–set aside the judgment under appeal;

–grant the form of order sought by the appellant at first instance before the General Court;

–order the SRB to pay the costs.

24.The SRB contends that the Court should:

–dismiss the appeal;

–alternatively, if necessary, substitute the reasons stated and dismiss the appeal;

–order the appellant to pay the costs.

25.A hearing was held on 4 December 2024.

In support of its appeal, which seeks to challenge the General Court’s determination of the claim made at first instance on the basis of Article 272 and the first paragraph of Article 340 TFEU, the appellant advances two grounds of appeal, the first based on an error of law in the interpretation of Regulation No 806/2014 and Implementing Regulation 2015/81, and the second on a failure to state reasons.

27. By its first ground of appeal, the appellant seeks to challenge the General Court’s interpretation of the provisions which are applicable in this case, including Article 69(1) and Article 70(1) to (4) of Regulation No 806/2014 and Article 7(1) to (3) of Implementing Regulation 2015/81. In essence, the appellant submits that, rather than adopting the interpretation set out in the judgment under appeal, the General Court should have held that where a credit institution exits from the scope of Regulation No 806/2014, the SRB must return the collateral backing the irrevocable payment commitments entered into by that institution without any further obligation being imposed on it.

28. The first ground is divided into five parts, the first based on a breach of the principles of interpretation of EU law; the second on infringement of Article 70(1) of Regulation No 806/2014, of Article 7(2) and (3) of Implementing Regulation 2015/81 and of the principle of equal treatment; the third on the proposition that the General Court’s reasoning on Article 69(1) and Article 70(4) of Regulation No 806/2014 has no legal basis; the fourth on the proposition that Article 7(2) and (3) of Implementing Regulation 2015/81 was distorted and deprived of useful effect; and the fifth, which is advanced in the alternative, on a breach of the principle lex specialis generalibus derogat.

29. Those parts should be examined in the order in which they are advanced.

1. First part of the first ground, based on a breach of the principles of interpretation of EU law

30. The appellant challenges the General Court’s interpretation, as set out in points 17 to 21 of this Opinion, by submitting that the General Court failed to carry out a textual analysis of the wording of Article 7(3) of Implementing Regulation 2015/81, contrary to the principles of interpretation of EU law. In particular, the appellant states that the wording of that provision is clear and precise, in that it provides that, where a credit institution exits from the scope of Regulation (EU) No 806/2014, the irrevocable payment commitments entered into by that institution ‘are cancelled’, without attaching any condition to such cancellation. Moreover, that provision sets out the consequences which follow from such cancellation, namely that the collateral relating to the irrevocable payment commitments ‘is returned’, again without attaching any condition to such return. Given that the General Court gave precedence to a contextual and purposive interpretation of Article 7(3) of Implementing Regulation 2015/81, over the clear and precise wording of that provision, its judgment is vitiated by an error of law.

31. The SRB disputes those arguments.

32. The Court has restated on several occasions the canons of construction to be applied in interpreting a provision of EU law. According to settled case-law, it is necessary in doing so to consider not only the wording of the provision, but also the context in which it occurs and the objectives pursued by the rules of which it is part. (16)

33. In the judgment under appeal, I observe at the outset that, in paragraph 34, the General Court quoted the entirety of Article 7 of Implementing Regulation 2015/81, including paragraph 3, which applies to irrevocable payment commitments.

34. On that basis, in paragraph 36 of the judgment under appeal, the General Court pointed out the ordinary meaning of the word ‘irrevocable’, which, according to that court, refers to things which cannot be called into question. It follows, again in the opinion of the General Court, that the irrevocable payment commitments referred to in Article 7 of Implementing Regulation 2015/81 entail an obligation, which cannot be called into question, to pay the sum in respect of which those commitments were entered into.

35. Lastly, in paragraph 37 of the judgment under appeal, the General Court observed that, while it is true that Article 7(3) of Implementing Regulation 2015/81 does not expressly state that institutions which decide to exit the scope of Regulation No 806/2014 must first pay their contribution in order for their collateral to be subsequently returned to them, such institutions are required, under Articles 69 and 70 of Regulation No 806/2014, to pay, during the initial period, an annual contribution to the SRF so that the latter reaches the target level at the end of that period. Against that background, the General Court rejected the interpretation advocated by the appellant.

36. It follows that, contrary to the appellant’s submissions, the General Court did not fail to carry out a textual interpretation of the wording of Article 7(3) of Implementing Regulation 2015/81. Rather, it held, in the absence of any express release in that implementing regulation, that the obligation to contribute to the SRF continues in force in the light of the stipulations of its basic regulation – namely Regulation No 806/2014 – which is also consistent, in the view of that court, with the ordinary meaning of a payment commitment expressly described, by the implementing regulation itself, as ‘irrevocable’.

37. The appellant’s argument that no textual interpretation of Article 7(3) of Implementing Regulation 2015/81 was undertaken must therefore be dismissed.

38. Furthermore, as to whether the General Court’s conclusion was well founded, it should be pointed out, as the appellant has observed, that the Court has ruled that although an interpretation of a provision ‘in the light’ of its legal context is possible in principle to resolve a drafting ambiguity, such an interpretation cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. (17)

39. In that regard, it is true that the various methods of interpreting a legal provision, other than literal interpretation, must never lead to a clear and precise provision being interpreted contra legem. However, where the legal provision to be interpreted is part of an implementing regulation, its clarity and precision can only be weighed in relation to the normative framework to which the provision relates, and to the objectives of that framework, at the heart of which is the basic regulation. That means that a literal interpretation of a legal provision that is contained in an implementing regulation, however clear and precise it may appear to be, may not run counter to the general scheme and objectives of its basic regulation. The case-law of the Court is clear in that regard in holding, on the basis of a well-established principle of construction relating to the hierarchy of norms, that an implementing regulation must, if possible, be given an interpretation consistent with the basic regulation. (18)

40. It follows that the interpretive approach taken by the General Court, as it appears from paragraphs 36 and 37 of the judgment under appeal, cannot be regarded as erroneous. First, the General Court examined the wording of Article 7(3) of Implementing Regulation 2015/81, including in particular the meaning of the term ‘irrevocable’ and the fact that that provision is silent as to the conditions to be met in order for collateral to be returned to a credit institution where irrevocable payment commitments have been cancelled. Second, it related its observations to the relevant provisions of Regulation No 806/2014, namely Articles 69 and 70 thereof, in order to assess whether the apparent clarity and precision of Article 7(3) of Implementing Regulation 2015/81, on which the appellant relied, could be upheld. However, the General Court considered that the obligations flowing from those provisions of Regulation No 806/2014, and from the objectives of ex ante contributions, prevented it from reaching that conclusion. (19)

41. In the light of the foregoing, and without prejudice to the examination of the second and third parts of the first ground, which are intended precisely to challenge the General Court’s reading of Article 69 of Regulation No 806/2014 in conjunction with Article 70 of that regulation and with the various paragraphs of Article 7 of Implementing Regulation 2015/81, I do not consider that the General Court can be said to have breached the principles of interpretation of EU law, as the appellant submits.

42. The first part of the first ground of appeal should, in my view, be dismissed.

43. By the second part of the first ground, the appellant maintains, in essence, that, even if Article 7(3) of Implementing Regulation 2015/81 must be interpreted on the basis of Article 70(1) of Regulation No 806/2014, as, it states, the General Court held in the judgment under appeal, the latter provision does not preclude an interpretation according to which, where an institution exits from the scope of Regulation No 806/2014, the SRB must return the collateral backing the irrevocable payment commitments without any further obligation being imposed on it.

44. In that regard, the appellant states that, contrary to the view taken by the General Court, Article 70(1) of Regulation No 806/2014 does not impose ‘a payment obligation’ on credit institutions subject to the SRM, but only ‘an obligation to raise’ in favour of the SRF, with the contribution being raised, it submits, either by way of a cash payment or by way of an irrevocable payment commitment. According to the appellant, there are several provisions of Regulation No 806/2014 and Implementing Regulation 2015/81 that should be read as confirming this distinction. The only cash payment obligation relating to irrevocable payment commitments is, the appellant submits, that laid down in Article 7(2) of Implementing Regulation 2015/81, which applies where a resolution action that involves the SRF is taken. That is a conditional obligation that arises only where the condition expressly laid down by Implementing Regulation 2015/81 is fulfilled. The appellant states, once again, that Article 7(3) of Implementing Regulation 2015/81 does not lay down any obligation to return cash collateral backing irrevocable payment commitments, submitting that this means that the General Court made the application of that provision subject to non-existent conditions, contrary to the settled case-law of the Court.

45. The SRB disputes those arguments.

46. By way of a preliminary remark, it should be observed that, according to Article 70(1) of Regulation No 806/2014, ‘the individual contribution of each institution shall be raised at least annually’. It is therefore true, as the appellant has pointed out, that Article 70(1) of Regulation No 806/2014 uses the term ‘raise’, and not the term ‘pay’, when it refers to the ex ante contributions required of credit institutions falling within the scope of Regulation No 806/2014.

47. The General Court, for its part, stated in paragraph 28 of the judgment under appeal that it follows from Article 70(1) of Regulation No 806/2014 that, for each contribution year, credit institutions established in a participating Member State, as was the case with the appellant, are required to ‘pay’ their respective ordinary contributions to the SRF. On that basis, the General Court reached the conclusion, in particular in paragraphs 37 to 39 of the judgment under appeal, that institutions which have given irrevocable payment commitments are always required to pay their ex ante contribution in cash if they decide to withdraw from the scope of Regulation No 806/2014. According to the General Court, that interpretation is consistent with the objective pursued by Article 7(3) of Implementing Regulation 2015/81.

48. The question arising in the present case is, therefore, whether the terminological distinction relied on by the appellant can affect the reading of Article 70(1) of Regulation No 806/2014 together with Article 7(3) of Implementing Regulation 2015/81, thus confirming that, as the appellant submits, the cancellation of collateral backing irrevocable payment commitments is not conditional on payment having being made in cash.

49. In my view, which accords with the position taken by the SRB in its pleadings, the Court should not accept the appellant’s submissions.

50. First, the term ‘raise’, in the wording of Article 70(1) of Regulation No 806/2014, and the term ‘pay’, in the judgment under appeal, seem to me to relate to two sides of the same obligation. The only difference in that regard lies in the fact that the wording of Article 70(1) of Regulation No 806/2014 uses a passive form of the verb ‘to raise’ in order to emphasise the ex ante contributions as the active subject of the sentence. (20) In contrast, in paragraph 28 of the judgment under appeal, the General Court uses the verb ‘to pay’ in the active form in order to emphasise that credit institutions established in a participating Member State are bound by the obligation imposed by Article 70(1) of Regulation No 806/2014. Thus, in my view, the semantic distinction drawn between the term ‘raise’, on the one hand, and the term ‘pay’, on the other, cannot have the legal impact argued for by the appellant.

51. Second, I would point out that there is, equally, no basis for this distinction in the respective texts of Regulation No 806/2014 and Implementing Regulation 2015/81. It is true that, as the appellant observes, several provisions of those two regulations use the verb ‘to raise’, in its various conjugated forms, in reference to ex ante contributions. However, neither of the regulations reserves the term ‘pay’ for the payment of contributions in cash, which means that the pairings ‘collection – irrevocable payment commitment’ and ‘payment – cash contribution’, which are creations of the appellant, should not be accepted. Furthermore, it must be observed that, as the SRB rightly states, there are references in EU law to irrevocable payment commitments in which the term ‘pay’ is used in relation to such commitments, as well as in relation to ex ante contributions in general, not only those made in cash, which shows that both the verb ‘to raise’ and the verb ‘to pay’ may be used without distinction even with reference to that type of instrument. (21)

52. It follows that, in so far as irrevocable payment commitments constitute ex ante

contributions, which the appellant does not dispute, the use of the term ‘raise’ in the wording of Article 70(1) of Regulation No 806/2014 cannot in itself exclude the interpretation upheld by the General Court, on which credit institutions which have entered into irrevocable payment commitments are required to pay the amount of their contributions in cash where they decide to exit the scope of that regulation. (22)

53.As regards the argument advanced by the appellant based on Article 7(2) of Implementing Regulation 2015/81, it suffices to observe that that provision is not relevant to the present case, as the General Court rightly stated in paragraph 54 of the judgment under appeal. The present case does not concern the consequences of a call for payment made during the resolution of a credit institution, but those that follow from the cancellation of an irrevocable payment commitment entered into by an institution which exits the SRM. In addition, the fact that Article 7(2) of Implementing Regulation 2015/81 imposes an obligation to pay where a resolution action involves the SRF cannot mean, in itself, that a similar obligation cannot be regarded as applicable, in accordance with Article 70(1) of Regulation No 806/2014, in other situations, such as where an irrevocable payment commitment is cancelled as a result of the exit of an institution from the scope of that regulation. The General Court cannot therefore be said to have ‘disregarded the conditional nature’ of irrevocable payment commitments, as the appellant submits.

54.Furthermore, whereas the appellant objects that the General Court’s interpretation creates ‘a more unfavourable situation’ for institutions exiting from the scope of Regulation No 806/2014, by comparison in particular to institutions remaining within its scope, it must be observed that institutions remaining within the scope of the regulation remain liable, by virtue of the irrevocable payment commitments they have given, to pay the amount corresponding to those commitments either in the event of a resolution decision, pursuant to Article 7(2) of Implementing Regulation 2015/81, or in the event that they exit from the scope of Regulation No 806/2014. Their situation is thus the same as that confronting the appellant, which arises partly from the fact that it belonged to the SRM from 2016 to 2021, as the General Court rightly observed in paragraph 46 of the judgment under appeal, and partly from its decision to exit from that mechanism. The claim advanced by the appellant on the basis of infringement of the principle of equal treatment should not therefore be upheld.

55.Lastly, in so far as the appellant reaffirms the apparent clarity and precision of the terms of Article 7(3) of Implementing Regulation 2015/81 and the fact that that provision does not state that payment must be made as a condition of cancellation of the collateral backing an irrevocable payment commitment, I refer to the considerations set out in the analysis of the first part of the first ground of appeal, from which it follows that the General Court did not make any error in adopting an interpretation on which that article and Article 70(1) of Regulation No 806/2014, read together, indicated that the contrary interpretation was correct.

56.In the light of the foregoing, I do not consider that the General Court’s conclusion that, where an institution exits from the scope of Regulation No 806/2014, the SRB is not required to return the collateral backing its irrevocable payment commitments without payment of the cash amount corresponding to those commitments, is contrary to Article 70(1) of Regulation No 806/2014, Article 7(2) and (3) of Implementing Regulation 2015/81 or the principle of equal treatment, as claimed by the appellant.

57.The second part of the first ground of appeal should, in my view, be dismissed.

Third part of the first ground, alleging that the General Court’s reasoning as regards Article 69(1) of Regulation No 806/2014 and Article 70(4) of that regulation has no legal basis

58.By the third part of the first ground, the appellant submits that the General Court was wrong to regard Article 69(1) and Article 70(4) of Regulation No 806/2014 as a basis for concluding that credit institutions exiting the scope of that regulation are subject to a payment obligation.

59.First, the appellant states that, under point 34 of Article 3(1) of Regulation No 806/2014, ‘available financial means’ includes the cash, deposits, assets and irrevocable payment commitments available to the SRF. It follows, it submits, that the available financial means, as referred to in Article 69(1) of Regulation No 806/2014, include the irrevocable payment commitments themselves, regardless of whether they have been called, and therefore regardless of any cash payment. Article 69(1) of Regulation No 806/2014 thus cannot serve as a legal basis for any unconditional obligation to pay the amounts in cash. Against that background, the appellant submits, in essence, that it would be consistent with the objective pursued by that provision for credit institutions exiting the scope of Regulation No 806/2014 not to be subject to an obligation to pay the amounts in cash on cancellation of their irrevocable payment commitments.

60.Second, according to the appellant, the General Court misconstrued Article 70(4) of Regulation No 806/2014 in finding, in the judgment under appeal, that the irrevocable payment commitments were ‘duly received’ within the meaning of that provision. It submits that the irrevocable payment commitments are, as their name indicates, commitments given to the SRF and embodied in a contract entered into by the institution. The appellant submits that a contract can be entered into, cancelled or terminated, but not ‘paid’ or ‘received’, and still less ‘reimbursed’. It follows that Article 70(4) of Regulation No 806/2014, which prohibits the reimbursement of ‘duly paid’ contributions, can only apply to contributions received in the form of sums of money. That reading is confirmed, the appellant submits, by the provisions of the contract concluded between the appellant and the SRB.

61.The SRB disputes those arguments.

62.In the first place, according to Article 69(1) of Regulation No 806/2014, the available financial means of the SRF are to reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States by the end of an initial period of eight years from 1 January 2016 or, otherwise, from the date on which that paragraph is applicable by virtue of Article 99(6) thereof.

63.In the judgment under appeal, and particularly in paragraphs 29 and 37 of that judgment, the General Court explained the main objective of the annual collection of ex ante contributions by reference to that provision. It held that that objective was to ensure that, at the end of the initial period, the available financial means of the SRF reached the target level. On that basis, the General Court stated, in paragraph 41 of the judgment under appeal, that if Article 7(3) of Implementing Regulation 2015/81 were interpreted in such a way as to permit an institution such as the appellant not to pay the cash amount corresponding to its irrevocable payment commitment, that article would run counter to the objective of reaching the target level, as pursued in particular in Article 69 of Regulation No 806/2014.

64.In my view, the General Court’s assessment should be endorsed. As is apparent from paragraph 41 of the judgment under appeal, which refers in that regard to the Opinion of Advocate General Kokott in ABLV Bank v SRB (23) – with which I agree – the cancellation of an irrevocable payment commitment, occasioned by an institution exiting from the scope of Regulation No 806/2014, and the return of the corresponding collateral, provided for in Article 7(3) of Implementing Regulation 2015/81, cannot be to the detriment of the SRF. That would be the case, as Advocate General Kokott also observes in her Opinion, if the cancellation and return meant that the contribution covered by the irrevocable payment commitment did not have to be made. For that reason, and, as the General Court held, to avoid undermining the objective pursued by Article 69(1) of Regulation No 806/2014, withdrawal from the SRM must lead to the irrevocable payment commitment being called. (24)

65.Furthermore, with regard to the claim advanced by the appellant on the basis of the combined reading of the definition of the term ‘available financial means’, in point 34 of Article 3(1) of Regulation No 806/2014, on one hand, and in Article 69(1) of that regulation, on the other, that claim supports the reasoning of the General Court, rather than contradicting it. Given that irrevocable payment commitments are regarded by Regulation No 806/2014 as available financial means and that, accordingly, they are taken into account in achieving the SRF’s target level, their cancellation must necessarily be accompanied by cash compensation in the amount corresponding to those commitments. Otherwise, as has already been stated, the cancellation of the irrevocable payment commitments and the return of the collateral would be to the detriment of the SRF and would undermine the objective of achieving the target level provided for in Article 69(1) of Regulation No 806/2014.

66.Lastly, in so far as the appellant submits that the exit of a credit institution from the scope of Regulation No 806/2014 should instead be compensated for by adjustments to the ex ante contributions of the institutions remaining within the scope of that regulation, it suffices to note that, in the case which gave rise to the judgment in ABLV Bank v SRB, (25) which was cited on this point by the General Court in paragraph 30 of the judgment under appeal, the Court of Justice ruled out that possibility.

67.It follows that the General Court was entitled to base its conclusion regarding the payment obligation incumbent on institutions withdrawing from the SRM on Article 69(1) of Regulation No 806/2014, and on the objective pursued by that provision.

68.In the second place, with regard to Article 70(4) of Regulation No 806/2014, that provision stipulates that the duly received contributions of each entity covered by that regulation are not to be reimbursed to those entities. The General Court held that that provision also supported its interpretation that the return of the collateral linked to the irrevocable payment commitments cannot take place until an amount corresponding to the contribution that those commitments replaced has been paid.

69.In that regard, the arguments raised by the appellant in opposition to that view do not seem to me to be persuasive, in that they simply maintain that contracts concluded between credit institutions and the SRB, for the purposes of entering into irrevocable payment commitments, are not capable, by their nature, of being ‘received’. That terminological detail is not sufficient to call the General Court’s reasoning into question, especially as the proposition that it is simply impossible to regard a commitment as being ‘received’ seems to me, in any event, to be debatable.

70.However that may be, it must be pointed out that, as the Court has observed in its case-law, it follows from the clear wording of Article 70(4) of Regulation No 806/2014 that the EU legislature intended to exclude, in a general manner, the reimbursement of ex ante contributions received in due form. (26) Hence, as the SRB submits, if the term ‘duly received’ applies without distinction to ex ante contributions, it must apply irrespective of the type of contribution, including to irrevocable payment commitments.

71.In those circumstances, I consider, once again, that the General Court was right to have recourse to Article 70(4) of Regulation No 806/2014 in reaching its interpretation that a payment obligation arises on the part of institutions exiting the scope of the SRM when the irrevocable payment commitments they have entered into are cancelled.

72.In the light of the foregoing, contrary to the appellant’s submissions, the General Court did not infringe either Article 69(1) of Regulation No 806/2014 or Article 70(4) thereof in the reasoning set out in the judgment under appeal.

73.The third part of the first ground of appeal should, in my view, be dismissed.

Fourth part of the first ground, alleging that Article 7(2) and (3) of Implementing Regulation 2015/81 was distorted and deprived of useful effect

74.The appellant submits that the General Court interpreted Article 7(1) of Implementing Regulation 2015/81 in such a way as to distort paragraphs 2 and 3 of that article and deprive them of useful effect. According to the appellant, the General Court’s reasoning amounts to holding that the cancellation of irrevocable payment commitments and the return of the related collateral, in accordance with Article 7(3) of that implementing regulation, are, in themselves, such as to undermine the financial capacity or liquidity of the SRF. Against that background, the appellant states that Article 7(3) thereof could never apply. It adds that the General Court’s interpretation also distorts Article 7(3) of that implementing regulation, because that provision does not attach any condition to the return of the collateral backing the irrevocable payment commitments. If the legislature had intended to impose the same payment obligation that applies in cases of resolution actions, pursuant to Article 7(2) of Implementing Regulation 2015/81, Article 7(3) should have made provision to that effect or, at the very least, should have contained an express reference to Article 7(2).

75.The SRB disputes those arguments.

76.As a preliminary point, I would observe that, in so far as the fourth part of the first ground merely challenges the General Court’s interpretation of Article 7(1) of Implementing Regulation 2015/81, by submitting, in essence, that that interpretation deprives Article 7(2) and (3) of useful effect, it should be dismissed as ineffective. It must be stated, in the light of the analysis undertaken with regard to the first, second and third parts of the first ground, that even if the fourth part were well founded, the General Court’s interpretation of Article 7(3) of Implementing Regulation 2015/81 would remain valid, reading that provision together with other provisions contained in a higher-ranking rule, including Articles 69 and 70 of Regulation No 806/2014.

77.That having been said, I consider that the fourth part of the first ground, which consists in part of arguments which have already been examined in relation to the preceding parts of that ground, should be dismissed as unfounded.

78.It should be observed that, in paragraph 41 of the judgment under appeal, the General Court stated that Article 7(1) of Implementing Regulation 2015/81 expressly provides that recourse to irrevocable payment commitments must in no manner affect the financial capacity or the liquidity of the SRF. The same statement is made in recital 16 thereof. The General Court held, on that basis, that the cancellation of an irrevocable payment commitment and the return of the related collateral can never be to the detriment of the SRF.

Contrary to the appellant’s claims, I do not consider that that interpretation conflicts with the context and purpose of Article 7(3) of Implementing Regulation 2015/81, or that it is capable of depriving that provision of useful effect. On the contrary, if Article 7(3) of Implementing Regulation 2015/81 were interpreted as exempting credit institutions from their obligation to pay their contribution before having their collateral reimbursed, that would constitute a breach of the clear and explicit principle laid down by the legislature in Article 7(1) of the implementing regulation, which is aligned with the requirement in Article 69(1) of Regulation No 806/2014. In that regard, it suffices to observe that, as already concluded in the course of the analysis of the third part of the first ground, the use of irrevocable payment commitments, if not subject to a subsequent payment obligation arising in the event of an exit from the scope of Regulation No 806/2014, would diminish the financial capacity of the SRF and potentially compromise its liquidity, which is precisely what Article 7(1) of Implementing Regulation 2015/81 seeks to avoid.

80.Thus, the General Court did not commit any error in holding, in paragraph 42 of the judgment under appeal, that Article 7(1) of Implementing Regulation 2015/81 applies to the treatment of the irrevocable payment commitments of an institution which falls outside the scope of Regulation No 806/2014, and that Article 7(3) of Implementing Regulation 2015/81 must therefore be interpreted taking account of that provision.

81.As to the further submissions relating to Article 7(2) and (3) of Implementing Regulation 2015/81, by which it is argued, in essence, that those provisions make reimbursement conditional on payment only where there has been a resolution decision, I refer to the considerations set out in points 40 and 53 of this Opinion.

82.In the light of the foregoing, and contrary to the appellant’s submissions, the General Court’s interpretation of Article 7(1) of Implementing Regulation 2015/81 neither distorts Article 7(1) and (2) of that regulation nor deprives them of useful effect.

83.The fourth part of the first ground should, in my view, be dismissed as ineffective or, in any event, as unfounded.

The fifth part of the first ground, based on breach of the principle lex specialis generalibus derogat

84.By the fifth part of the first ground, which is advanced in the alternative, the appellant submits that the General Court breached the principle lex specialis generalibus derogat. According to the appellant, the General Court wrongly gave precedence to the general provision in Article 70(4) of Regulation No 806/2014 over the specific provisions in Article 7(2) and (3) of Implementing Regulation 2015/81. In that regard, it submits in particular that, in accordance with settled case-law, specific provisions prevail over general rules in the situations which they specifically seek to regulate. Hence, contrary to the reasoning set out in the judgment under appeal, the content of the latter two provisions should have prevailed over that of the former.

85.The SRB disputes those arguments.

86.At the outset, it should be observed that, contrary to the appellant’s submissions, Article 7(3) of Implementing Regulation 2015/81 cannot be regarded as a lex specialis derogating, in particular, from Article 70(4) of Regulation No 806/2014.

87.As explained, essentially, in the course of my analysis of the first part of the first ground, Regulation No 806/2014, as the basic regulation, ranks higher in the hierarchy of norms than Implementing Regulation 2015/81, such that, in the absence of a derogation or express stipulation, the provisions of Implementing Regulation 2015/81 cannot, in the event of a conflict, prevail over those of Regulation No 806/2014.

88.That is all the clearer in the light of Article 70(7) of Regulation No 806/2014, which empowers the Council to adopt implementing acts, such as Implementing Regulation 2015/81, to determine the conditions of implementation of paragraphs 1 to 3 of that article, but not to implement – still less to amend – paragraph 4 thereof.

89.In any event, as the SRB submits, it must be stated, in the light of the analysis of the third part of the first ground, that it is possible to read Article 70(4) of Regulation No 806/2014 and Article 7(3) of Implementing Regulation 2015/81 together. Accordingly, taking the starting point to be that the two provisions are complementary and can be applied in parallel, as suggested in this Opinion, the second of those provisions cannot constitute a derogation from the first. Against that background, and in the absence of any conflict between those two apparently applicable legal rules, no provision can be the subject of a derogation or remain inapplicable unless Regulation No 806/2014 expressly so prescribes.

90.In the light of the foregoing, I do not consider, contrary to the appellant’s submissions, that the General Court breached the principle lex specialis generalibus derogat.

91.The fifth part of the first ground should, in my view, be dismissed.

92.As none of the parts of the first ground of appeal advanced by the appellant can be upheld, that ground should be dismissed in its entirety.

Second ground of appeal, based on failure to state reasons

The appellant submits that the judgment under appeal is vitiated by a failure to state reasons and by contradictory reasoning. In particular, it submits that there are contradictions in paragraphs 30, 36, 41 and 43 of the judgment under appeal, in which the General Court held, respectively:

– first, that an irrevocable payment commitment is a ‘duly received’ contribution within the meaning of Article 70(4) of Regulation No 806/2014, albeit that it is not paid ‘immediately’;

– second, that such a commitment is ‘irrevocable’, the General Court going on to hold that Article 7(3) of Implementing Regulation 2015/81 is intended to ‘put an end’ to it, ‘with the result that it does not continue after the [exit from] the scope of Regulation No 806/2014’;

– third, that, as stated, Article 7(3) of Implementing Regulation 2015/81 is intended to ‘put an end’ to irrevocable payment commitments, the General Court affirming at the same time that that provision is intended ‘to ensure that the financial means of the SRF will be available to the SRB as quickly as possible in the event of a resolution’; and,

– fourth, that Article 7(3) of Implementing Regulation 2015/81 cannot be applied ‘to the detriment of the SRF’ and in such a way as to affect its ‘financial capacity or … liquidity’, as provided in Article 69(1) of Regulation No 806/2014 and Article 7(1) of Implementing Regulation 2015/81.

94.The SRB disputes those arguments.

95.In the present case, first of all, I do not consider, contrary to the appellant’s submissions, that there is any contradiction in the observation made by the General Court, in paragraph 30 of the judgment under appeal, that irrevocable payment commitments are not contributions paid ‘immediately’, but contributions the payment of which is ‘deferred’. Equally, there is nothing contradictory in the General Court holding that an irrevocable payment commitment given by an institution constitutes a ‘duly received’ contribution, given that, as explained in point 70 of this Opinion, the prohibition on reimbursement provided for in Article 70(4) of Regulation No 806/2014 covers all available financial means, thus including irrevocable payment commitments.

96.Next, there is similarly no contradiction in requiring performance of the payment obligation underlying the irrevocable payment commitment even if that commitment is cancelled. As I pointed out in the course of my analysis of the first ground, the legal obligation to pay ex ante contributions continues and irrevocable payment commitments are an option made available to credit institutions in that regard. The argument advanced by the appellant on the basis that the General Court’s reasoning is contradictory is founded, in my view, on a partial reading of the judgment under appeal.

97.Furthermore, in stating that Article 7(3) of Implementing Regulation 2015/81 enables means to be made available to the SRF ‘in the event of a resolution’, the General Court was not contradicting its own position in the judgment under appeal, namely that the institution in question has an unconditional obligation to pay the amount corresponding to the irrevocable payment commitment. As the SRB rightly states, it is precisely because there is an unconditional obligation that there is no exemption for the amount covered by irrevocable payment commitments, and that the means available to the SRF ‘in the event of a resolution’ are available quickly. That is the raison d’être of the SRF, as well as the objective of achieving the target level for this fund, as set out in European Union legislation.

98.Lastly, as explained in the course of the analysis of the first ground, the General Court duly explained the risk to the SRF and to the target level that would arise if ex ante contributions made in the form of irrevocable payment commitments were to disappear as a result of an unforeseeable exemption triggered by an exit from the scope of Regulation No 806/2014.

99.As none of the arguments advanced with a view to demonstrating that the reasoning in the judgment under appeal is inadequate and contradictory appears to be well founded, the second ground of appeal should, in my view, be dismissed.

100.On the basis that none of the grounds put forward by the appellant in support of its appeal can be upheld, the appeal should be dismissed in its entirety.

Costs

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

In accordance with Article 138(1) of those rules, which applies to appeal proceedings by virtue of 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.

103.Since the SRB has applied for a costs order against the appellant and the latter has been unsuccessful, the appellant must be ordered to pay the costs.

Conclusion

Having regard to the analysis set out in this Opinion and in the light of the propositions stated in points 100 and 103 of this Opinion, I propose that the Court should:

– dismiss the appeal;

– order the appellant to pay the costs.

1

Original language: French.

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).

3

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).

4

Judgment under appeal, paragraph 28.

Judgment under appeal, paragraph 29.

Judgment under appeal, paragraph 30.

7

Judgment under appeal, paragraph 32.

8

Judgment under appeal, paragraph 33.

9

Judgment under appeal, paragraphs 36 and 37.

10

Judgment under appeal, paragraph 38.

11

Judgment under appeal, paragraph 39.

12

Judgment under appeal, paragraphs 40 to 44.

13

Judgment under appeal, paragraph 51.

14

Judgment under appeal, paragraphs 52 to 64.

15

Judgment under appeal, paragraphs 65 to 79.

16

Judgment of 22 February 2024, Landkreise Jerichower Land (C‑85/23, EU:C:2024:161, paragraph 30 and the case-law cited).

17

Judgment of 8 December 2005, ECB v Germany (C‑220/03, EU:C:2005:748, paragraph 31). In several of his Opinions, Advocate General Bobek also maintained, as the appellant also points out, that it is not permissible to interpret a provision in the light of its legal context or the objectives it pursues if its wording is unambiguous. See, amongst others, Opinion of Advocate General Bobek in European Federation for Cosmetic Ingredients (C‑592/14, EU:C:2016:179, point 37 and the case-law cited).

18

See, inter alia, judgment of 29 February 2024, <i>cdVet Naturprodukte</i> (C‑13/23, EU:C:2024:175, paragraph 60 and the case-law cited).

—

As the SRB has stated in its pleadings, it should be observed that, in that context, in order for the General Court to have arrived at an interpretation <i>contra legem</i>, Article 7(3) of Implementing Regulation 2015/81 would have had to provide expressly that credit institutions exiting from the scope of Regulation No 806/2014 were exempted from the obligation to pay the <i>ex ante</i> contribution replaced by the irrevocable payment commitments.

—

I would observe, in that regard, that Article 70(1) of Regulation No 806/2014 is found in Chapter 2 of Regulation No 806/2014, and more specifically in Section 1, which is entitled ‘Constitution of the [Single Resolution] Fund’. Article 70(1) of Regulation No 806/2014 thus refers to the ‘<i>ex ante</i> contributions of each institution’ as the basic components of that fund.

—

See, in particular, recital 26 and Article 13 of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to <i>ex ante</i> contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

—

It seems to me that, as the SRB submits, that interpretation is supported by Article 8(3) of Implementing Regulation 2015/81, from which it is apparent, in essence, that irrevocable payment commitments form part of the total payment obligations of institutions subject to the SRM.

—

Opinion of Advocate General Kokott in <i>ABLV Bank </i>v <i>SRB</i> (C‑202/21 P, EU:C:2022:327, point 87).

—

Judgment of 29 September 2022 (C‑202/21 P, EU:C:2022:734, paragraph 56).

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Judgment of 29 September 2022 (C-202/21 P, EU:C:2022:734, paragraph 54).