Court of Justice of the European Communities (including Court of First Instance Decisions)

Case C‑414/18

Iccrea Banca SpA Istituto Centrale del Credito Cooperativo

v

Banca d’Italia

(Request for a preliminary ruling,
made by the Tribunale amministrativo regionale per il Lazio)

 Judgment of the Court (Grand Chamber), 3 December 2019

(Reference for a preliminary ruling — Directive 2014/59/EU — Banking Union — Recovery and resolution of credit institutions and investment firms — Annual contributions — Calculation — Regulation (EU) No 806/2014014 — Implementing Regulation (EU) 2015/81 — Uniform procedure for the resolution of credit institutions and investment firms — Administrative procedure involving national authorities and an EU body — Exclusive decision-making power of the Single Resolution Board — Procedure before the national courts — Failure to bring an action for annulment before the EU Courts in good time — Delegated Regulation (EU) 2015/63– Exclusion of certain liabilities from the calculation of contributions — Interconnectedness of a number of banks)

1.        Questions referred for a preliminary ruling — Admissibility — Need for a preliminary ruling and relevance of the questions referred — Assessment by the national court — Question referred for a preliminary ruling with the sole purpose of enabling the referring court to give a ruling on an issue not falling within its jurisdiction — Inadmissibility

(Art. 267 TFEU)

(see paragraphs 32, 33)

2.        Economic and monetary policy — Economic policy — Single resolution mechanism for credit institutions and certain investment firms — Ex ante contributions to the Single Resolution Fund — Decision of the Single Resolution Board on the calculation of those contributions adopted on the base of a national proposal — Jurisdiction of a national court to review the legality of the proposal — None

(European Parliament and Council Regulation No 806/2014, Art. 70(2); Council Regulation 2015/81, Arts 4 and 6)

(see paragraphs 37-42, 47, 48, 53)

3.        Economic and monetary policy — Economic policy — Single resolution mechanism for credit institutions and certain investment firms — Ex ante contributions to the Single Resolution Fund — Decisions of the Single Resolution Board on the calculation of those contributions — Decisions of national resolution authorities and national courts that conflict with the decisions of the Single Resolution Board — Excluded

(Art. 263 TFEU; European Parliament and Council Regulation No 806/2014, Art. 67(4); Council Regulation 2015/81, Art. 5)

(see paragraphs 58, 59)

4.        Action for annulment — Natural or legal persons — Acts that are of direct and individual concern to them — Decisions of the Single Resolution Board on the calculation of ex ante contributions to the Single Resolution Fund — Whether of direct and individual concern to a bank heading a network of credit institutions

(Art. 263, fourth paragraph, TFEU)

(see paragraphs 63-70)

5.        Economic and monetary policy — Economic policy — Recovery and resolution of credit institutions and investment firms — Second-tier bank supplying various services to cooperative credit banks but not controlling them — Ex ante contributions to resolution financing arrangements — Calculation of those contributions — Liabilities arising from transactions between the second-tier bank and the members of a grouping comprising it and cooperative banks — Not excluded

(Commission Regulation 2015/63, Art. 5(1)(a) and (f); European Parliament and Council Directive 2014/59, Art. 103(2))

(see paragraphs 88, 91, 93-96, operative part)

Résumé

Iccrea Banca may not challenge the calculation of its obligatory contributions to the Single Resolution Fund before the national courts

In the Iccrea Banca judgment (C‑414/18), delivered on 3 December 2019, the Grand Chamber of the Court emphasised the exclusive jurisdiction of the EU Courts to assess the legality of the decisions of the Single Resolution Board (the Board) and acts adopted by a national resolution authority that are preparatory of such decisions, in relation to contributions payable by a bank heading a network of credit institutions to the Single Resolution Fund (SRF). Further, the Court held that a national court could not annul a national decision notifying a decision of the Board on the ground of an error having been committed by the Board. In addition, the Court held that the liabilities between entities in a grouping of cooperative credit banks, such as that formed by Iccrea Banca with the cooperative banks to which it supplies various services but which it does not control, are not excluded from the calculation of contributions to national resolution funds.

Iccrea Banca, a bank which heads a network of credit institutions, a so-called ‘second-tier bank’, provides various services to cooperative credit banks in Italy and acts as a central funder for the cooperative credit system. In that respect, it supplies, in particular, to those banks a range of services for structured access to funding available from the European Central Bank and on the market. By means of a number of successive decisions, the Bank of Italy sought from Iccrea Banca payment of ordinary, extraordinary and additional contributions to the Italian national resolution fund, for the years 2015 and 2016. In addition, the Bank of Italy sought from it payment of an ex ante contribution to the SRF, for 2016. That contribution had been determined by decisions of the Board on the basis of information sent to it by the Bank of Italy.

Iccrea Banca challenged those decisions of the Bank of Italy before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio, Italy), disputing the method of calculation of the contributions sought. Iccrea Banca claimed, inter alia, that the Bank of Italy was the source of an error in the calculation by the Board of the ex ante contribution to the SRF in that it had not, when transferring information to the Board, explained the special nature of the integrated system in which Iccrea Banca operated. The Tribunale amministrativo regionale per il Lazio asked the Court to interpret the relevant EU legislation.

As regards, first, the actions of the Bank of Italy in the stage of the procedure preceding the adoption of the decisions of the Board on the calculation of ex ante contributions to the SRF, the Court recalled, first, that the Court of Justice of the European Union has exclusive jurisdiction to review the legality of acts adopted by the EU bodies, offices or agencies, one of which is the Single Resolution Board. The Court, second, stated that, as regards the calculation of ex ante contributions to the SRF, the Board exclusively exercises the final decision-making power and that the role of the national resolution authorities is confined to providing operational support to the Board. Consequently, the EU Courts alone have jurisdiction to determine, when reviewing the legality of a decision of the Board setting the amount of the individual ex ante contribution of an institution to the SRF, whether an act adopted by a national resolution authority that is preparatory of such a decision is vitiated by defects capable of affecting that decision of the Board, and no national court can review that national act.

EU law accordingly precludes the Tribunale amministrativo regionale per il Lazio from giving a ruling on the legality of the actions of the Bank of Italy in the stage of the procedure preceding the adoption of the decisions of the Board on the calculation of ex ante contributions to the SRF for the year 2016.

Second, as regards the stage following the adoption of decisions of the Board, notified to Iccrea Banca by the Bank of Italy, the Court held that the national resolution authorities do not have the power to re-examine the calculations made by the Board in order to alter the amount of those contributions and they cannot therefore, after the adoption of a decision of the Board, review, to that end, the extent to which a given institution is exposed to risk. Likewise, according to the Court, if a national court were to be able to annul the notification, by a national resolution authority, of a decision of the Board on the calculation of the ex ante contribution of an institution to the SRF, on the ground of an error in the evaluation of the exposure to risk of that institution on which that calculation was based, that would call into question a finding made by the Board and would ultimately impede the execution of that decision of the Board. Further, the Court held that, since decisions of the Board are of direct and individual concern to Iccrea Banca, but since it did not bring or it brought out of time (1) an action for the annulment of those decisions before the General Court of the European Union, Iccrea Banca cannot claim, as an ancillary matter in an action brought against national measures before a national court, that those decisions are invalid.

In the light of those considerations with respect to the jurisdiction of the Tribunale amministrativo regionale per il Lazio, the Court held that that national court could refer to it a question for a preliminary ruling only in relation to the decisions of the Bank of Italy claiming from Iccrea Banca payment of contributions to the Italian national resolution fund.

As regards, third, the decisions of the Bank of Italy claiming from Iccrea Banca payment of contributions to the Italian national resolution fund, the Court held that the liabilities arising from transactions between a second-tier bank and the members of a grouping comprising it and the cooperative banks to which it supplies various services but which it does not control, and that do not match loans granted on a non-competitive, not for profit basis, in order to promote the public policy objectives of central or regional governments in a Member State, are not excluded from the calculation of the contributions to a national resolution fund. (2)

1      See the order of the General Court of 19 November 2018, Iccrea Banca v Commission and Single Resolution Board (T‑494/17).

2      Article 103(2) of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/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). Article 5(1)(a) and (f) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

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