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

JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)

6 July 2022 (*) (1)

(Economic and monetary union – Banking union – Single resolution mechanism for credit institutions and certain investment firms (SRM) – Resolution procedure applicable where an entity is failing or is likely to fail – Decision of the SRB not to adopt a resolution scheme – Action for annulment – Act adversely affecting a person – Interest in bringing proceedings – Standing to bring proceedings – Inadmissibility in part – Article 18 of Regulation (EU) No 806/2014 – Power of the author of the measure – Right to be heard – Obligation to state reasons – Proportionality – Equal treatment)

In Case T‑280/18,

ABLV Bank AS, established in Riga (Latvia), represented by O. Behrends, lawyer,

applicant,

v

Single Resolution Board (SRB), represented by J. De Carpentier, E. Muratori and H. Ehlers, acting as Agents, and by J. Rivas Andrés, lawyer, and B. Heenan, Solicitor,

defendant,

supported by

European Central Bank (ECB), represented by R. Ugena, A. Witte and A. Lefterov, acting as Agents,

intervener,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed of A. Kornezov, President, E. Buttigieg, K. Kowalik-Bańczyk, G. Hesse (Rapporteur) and D. Petrlík, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure, and in particular:

–        the application lodged at the Court Registry on 3 May 2018,

–        the ECB’s statement in intervention lodged at the Court Registry on 10 May 2019,

–        the decision of 17 March 2020 to stay the proceedings pending the final decision of the Court of Justice in the cases which gave rise 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 new evidence lodged at the Court Registry on 27 October 2021,

further to the hearing on 28 October 2021,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, ABLV Bank AS, seeks the annulment of the decisions of the Single Resolution Board (SRB) of 23 February 2018 not to adopt resolution schemes in respect of the credit institutions ABLV Bank AS and ABLV Bank Luxembourg SA within the meaning of Article 18(1) of 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).

 Background to the dispute

2        The applicant is a credit institution established in Latvia and the parent company of the ABLV group. ABLV Bank Luxembourg SA (‘ABLV Luxembourg’) is a credit institution established in Luxembourg and is one of the subsidiaries of the ABLV group; the applicant is the sole shareholder of ABLV Luxembourg.

3        The applicant and ABLV Luxembourg were categorised as ‘significant institutions’ and, as such, were subject to supervision by the European Central Bank (ECB) as part of the Single Supervisory Mechanism established by Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the [ECB] concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

4        On 13 February 2018, the United States Department of the Treasury (United States of America), through the Financial Crimes Enforcement Network (FinCEN), announced a draft measure (‘the FinCEN draft measure’) to designate the applicant as an institution of primary money laundering concern, pursuant to Section 311 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). After that announcement, the applicant was no longer able to make payments in United States dollars.

5        From 15 February 2018, the applicant took the decision to replace payments in United States dollars by payments in euros or in kind and, from 16 February 2018, to cease entirely making payments on debts denominated in United States dollars, citing force majeure, in order to remedy the difficulties it was facing following the FinCEN draft measure. In particular, between 14 and 16 February 2018, that credit institution recorded net deposit outflows amounting to EUR 430 million in cash and EUR 170 million in kind, that is to say, a depletion of 23% of its deposit base.

6        On 18 February 2018, the ECB instructed the Finanšu un kapitāla tirgus komisija (Financial and Capital Market Commission, Latvia; FKTK) to suspend payments of the applicant’s financial obligations on the basis of the third subparagraph of Article 9(1) of Regulation No 1024/2013 and Article 22 of Regulation (EU) No 468/2014 of the [ECB] of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the [ECB] and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1), read in conjunction with clause 4 of Section 113(1) of the Kredītiestāžu likums (Law on Credit Institutions) (Latvijas Vēstnesis, 1995, No 163). The ECB also asked the Commission de surveillance du secteur financier (Financial Sector Supervisory Commission, Luxembourg; CSSF) to adopt similar measures with regard to ABLV Luxembourg. A moratorium with regard to the applicant entered into force on 19 February 2018 and ABLV Luxembourg was subject to a suspension of payments.

7        Consultations between the ECB, the FKTK and the applicant took place on several occasions between 16 and 23 February 2018. In that regard, the ECB, inter alia, informed the applicant that, in order to avoid default, it had to have EUR 1 thousand million in cash by 18.00 on 23 February 2018 in its account with the Latvian central bank, Latvijas Banka (Bank of Latvia).

8        On 22 February 2018, the ECB sent to the SRB its draft assessment concerning whether the applicant and ABLV Luxembourg were failing or were likely to fail (‘a FOLTF assessment’), with the aim of consulting the SRB in that regard in accordance with the third subparagraph of Article 18(1) of Regulation No 806/2014.

9        On 23 February 2018, the ECB concluded that the applicant and ABLV Luxembourg were failing or were likely to fail within the meaning of Article 18(1) of that regulation. The ECB’s FOLTF assessments in respect of the two credit institutions were sent to the SRB on the same day.

10      The ECB stated that neither the applicant nor ABLV Luxembourg would, in the near future, be able to pay their debts or other liabilities as they fell due within the meaning of Article 18(4)(c) of Regulation No 806/2014. With regard to the applicant, it took into account, inter alia, the following factors:

–        within three days of publication of the FinCEN draft measure (see paragraph 4 above), approximately EUR 600 million, or 23% of the deposits held by the applicant, were withdrawn;

–        in those circumstances, in view of the reputational damage suffered by the applicant, it was highly likely that outflows of deposits after the lifting of the moratorium would take place at the same pace as before it was implemented;

–        the applicant no longer had access to liquid assets in United States dollars and had limited access to euro liquidity;

–        it was for the applicant to have at its disposal sufficient cash to cover the expected withdrawals, estimated at EUR 200 million per day, or even more, for at least one week after the possible lifting of the moratorium;

–        the counterbalancing capacity that the applicant proved to be available, amounting to EUR 694 million, held at the Bank of Latvia at 18.00 on 23 February 2018, was not sufficient to offset the expected withdrawals;

–        other assets relied on by the applicant could not be taken into consideration, given that they were not available immediately and the withdrawals were likely to resume immediately after the moratorium was lifted at the same pace as before it was implemented. Only the cash available in the applicant’s account with the Bank of Latvia was relevant;

–        in those circumstances, it was impossible to lift the moratorium. During the moratorium, the applicant failed to demonstrate its capacity to ensure sufficient liquidity in the short term;

–        other measures to recover the applicant were envisaged, explored or implemented, but there was no reasonable prospect of them preventing the applicant’s failure.

11      The analysis of ABLV Luxembourg’s likelihood of failure was based, inter alia, on similar grounds.

12      By two decisions (SRB/EES/2018/09 and SRB/EES/2018/10) of 23 February 2018, the SRB decided not to adopt a resolution scheme with regard to the applicant and ABLV Luxembourg respectively (together ‘the contested decisions’). The SRB endorsed the ECB’s assessment that those credit institutions were failing or were likely to fail within the meaning of point (a) of the first subparagraph of Article 18(1) of Regulation No 806/2014. It also considered that there was no reasonable prospect that other measures would prevent their failure within a reasonable timeframe, in accordance with point (b) of the first subparagraph of Article 18(1) of that regulation. However, the SRB concluded that, in view of the particular characteristics of the applicant and ABLV Luxembourg, resolution action in respect of them was not necessary in the public interest within the meaning of point (c) of the first subparagraph of Article 18(1) and Article 18(5) of that regulation. On the same day, the contested decisions were notified to their respective addressees, the FKTK and the CSSF.

13      Article 1 of the operative part of Decision SRB/EES/2018/09 is worded as follows: ‘ABLV Bank, A.S. shall not be placed under resolution.’

14      In accordance with Article 2(1) of the operative part of Decision SRB/EES/2018/09: ‘This Decision is addressed to the [FKTK], in its capacity as National Resolution Authority, within the meaning of Article 3(1)(3) of Regulation No 806/2014.’

15      Article 2(2) of the operative part of Decision SRB/EES/2018/09 provides that, ‘pursuant to Article 29(1) of [Regulation No 806/2014], the [FKTK] shall implement [that] Decision and shall ensure that any action it takes complies with it, in line with the considerations provided [therein]’.

16      Articles 1 and 2 of the operative part of Decision SRB/EES/2018/10, which concerns ABLV Luxembourg, are similar in content.

17      On 24 February 2018, the SRB issued a press release relating to the contested decisions. The first paragraph of the press release is worded as follows: ‘Following the decision by the [ECB] to declare [ABLV Bank] and its subsidiary [ABLV Luxembourg] as “failing or likely to fail”, the [SRB] has decided that resolution action is not necessary as it is not in the public interest for these banks [;] as a consequence, the winding up of the banks will take place under the law of Latvia and Luxembourg, respectively.’

18      Summaries of the contested decisions (‘Notices summarising the decision taken in respect of ABLV Bank, AS and ABLV Bank Luxembourg SA’) were published on the SRB’s website.

19      On 26 February 2018, the shareholders of the applicant resolved to initiate a national procedure allowing that bank to liquidate itself and submitted to the FKTK an application for approval of its voluntary liquidation plan.

20      On 9 March 2018, the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg, Luxembourg) dismissed the application of the CSSF for the dissolution and liquidation of ABLV Luxembourg, while allowing the latter to benefit from the suspension of payments procedure for a period of six months, which was extended several times. By judgment of 2 July 2019, that court ordered the dissolution and liquidation of ABLV Luxembourg.

 Forms of order sought

21      The applicant claims that the Court should:

–        annul the contested decisions;

–        order the SRB to pay the costs.

22      The SRB, supported by the ECB, claims that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 Admissibility

23      The SRB raises four pleas of inadmissibility, alleging, in essence, first, that the applicant has not based the action on the wording of the contested decisions, but on that of the press release, second, that the contested decisions are not open to challenge, third, that the applicant has no standing to bring proceedings in so far as it is not directly concerned by the contested decisions, and, fourth, that the applicant has no interest in bringing proceedings.

24      The applicant disputes those pleas of inadmissibility.

 Plea of inadmissibility alleging that the applicant has not based its action on the wording of the contested decisions

25      The SRB submits that the applicant did not base its application on the wording of the contested decisions. In its arguments, it criticises instead the press release relating to the contested decisions and the notices summarising them published on the internet. In that regard, the SRB notes, inter alia, that the contested decisions do not contain an order requiring the respective national resolution authorities (NRAs) to liquidate the two credit institutions concerned.

26      The applicant relied on the press release according to which the SRB decided not to adopt a resolution scheme in respect of the applicant and ABLV Luxembourg and on the summaries of the decisions relating to the latter and lodged those documents before the Court as acts adversely affecting it in an annex to the application. It is common ground that, when the action was brought, the applicant did not have the full text of the contested decisions.

27      However, the applicant requested on several occasions that the SRB send it the full text of the contested decisions. The first request to that effect was made on 7 March 2018, well in advance of the lodging of the application. The SRB acknowledges that representatives of the applicant and its lawyer asked it to provide them with a copy of Decision SRB/EES/2018/09 concerning the applicant. In addition, the SRB notes that it was informed by the FKTK, by email of 11 April 2018, that the applicant had requested that the contested decisions be disclosed. It was only in the course of the present proceedings before the Court that the applicant received the full text of the contested decisions. In those circumstances, the applicant cannot be criticised for having initially based its action on the SRB’s press release of 24 February 2018 and the notes published on the internet relating to the contested decisions.

28      In any event, the facts cited in paragraphs 25 to 27 above are not such as to affect the admissibility of the action, but would at most have implications on the examination of the substance of the case. That plea of inadmissibility must therefore be rejected.

 Plea of inadmissibility alleging that the contested decisions are not open to challenge

29      According to the SRB, the contested decisions are not acts that are open to challenge, since they are not intended to produce binding legal effects such as to affect the interests of the applicant by bringing about a distinct change in its legal position. They claim that the contested decisions did not contain an order requiring the liquidation of the two credit institutions. According to the SRB, it was for the NRAs to take the necessary measures, in accordance with applicable national law, in respect of those institutions after it had decided not to adopt a resolution scheme.

30      It is in principle those measures which definitively determine the position of an institution upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, that constitute acts open to challenge, and not intermediate measures whose purpose is to prepare for the final decision, which do not have those effects (see judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 48 and the case-law cited).

31      More specifically, the Court of Justice has held previously that, although the ECB’s FOLTF assessment, referred to in the second and third subparagraphs of Article 18(1) of Regulation No 806/2014, does not constitute an act that is open to challenge, the fact remains that the subsequent adoption by the SRB of a resolution scheme, in accordance with Article 18(6) of that regulation, or the decision not to adopt such a scheme may be the subject of proceedings before the Courts of the European Union, in the context of which that assessment could be subject to judicial review (see, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 56).

32      Moreover, Article 86(2) of Regulation No 806/2014 provides that Member States and the EU institutions, as well as any natural or legal person, may, in accordance with Article 263 TFEU, institute proceedings before the Court of Justice of the European Union against such a decision of the SRB (see, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 56).

33      It follows that the SRB’s decision whether or not to adopt a resolution scheme in respect of a credit institution is an act that is open to challenge. That decision definitively establishes the position of the SRB at the end of the complex administrative procedure provided for in Article 18 of Regulation No 806/2014 and triggered by the FOLTF assessment of an entity, which is carried out, initially, by the ECB. That procedure is intended to produce binding legal effects vis-à-vis the applicant in that it will not be the subject of a resolution scheme.

34      Moreover, a decision not to adopt a resolution scheme, such as the contested decisions, is no less an act open to challenge than a decision to adopt such a scheme. The decision to adopt resolution action entails the imposition of resolution tools as referred to in Article 18(6)(b) and (c) and Article 22 of Regulation No 806/2014, such as the sale of business tool, the bridge institution tool, the asset separation tool and the bail-in tool, or even use of the Single Resolution Fund to support resolution action. Accordingly, the decision not to adopt such tools, some of which may enable the applicant to continue part of its activities, produces binding legal effects such as to affect the interests of the applicant.

35      Lastly, as is also apparent from the Opinion of Advocate General Campos Sánchez-Bordona in Joined Cases ABLV Bank and Others v ECB (C‑551/19 P and C‑552/19 P, EU:C:2021:16, point 93), observance of the right to effective judicial protection, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), is ensured by the fact that the SRB’s decision which concludes the procedure referred to in Article 18 of Regulation No 806/2014 is an act that is open to challenge, with the result that any unlawfulness vitiating the ECB’s FOLTF assessment, which is carried out at the first stage of the procedure, can be relied upon in support of an action against that decision of the SRB. It follows that the applicant must be in a position to seek annulment of the decision of the SRB to adopt or not adopt a resolution scheme in respect of it.

36      Consequently, the contested decisions are acts that are open to challenge.

 Plea of inadmissibility alleging that the applicant has no standing to bring proceedings

37      The SRB submits that the applicant is not directly concerned by the contested decisions. They did not directly affect its legal situation and give the NRAs responsible for implementing them a wide margin of discretion. The liquidation of the applicant and its subsidiary is the result of decisions taken at national level and not of the application of the rules of EU law.

38      It should be noted, first of all, that the issue of whether the applicant is individually affected, for the purpose of the fourth paragraph of Article 263 TFEU, has not been called into question by the SRB. The contested decisions concern the applicant and its 100% subsidiary respectively as credit institutions in respect of which the SRB does not adopt resolution schemes and, thus, those decisions distinguish the applicant individually in the same way as the addressee of those decisions. The applicant is therefore individually concerned by the contested decisions.

39      As regards the allegation that the applicant in the present case is not directly affected by the contested decisions, it should be noted that the condition that a natural or legal person who is not the addressee of the decision against which the action is brought must be directly concerned by that decision, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect its legal situation and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (judgments of 22 March 2007, Regione Siciliana v Commission, C‑15/06 P, EU:C:2007:183, paragraph 31; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66; and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42).

–       Whether the applicant is directly affected in so far as the action is directed against Decision SRB/EES/2018/10 which concerns ABLV Luxembourg

40      It should be noted at the outset that the action was lodged by the applicant in its own name against Decision SRB/EES/2018/09 and as the parent company and sole shareholder of ABLV Luxembourg as regards Decision SRB/EES/2018/10.

41      It should be borne in mind that, as is clear from paragraph 12 above, Decision SRB/EES/2018/10 provides that no resolution scheme will be adopted in respect of ABLV Luxembourg. Thus, that decision has effects on the legal situation of ABLV Luxembourg (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 39).

42      However, Decision SRB/EES/2018/10 does not directly affect the legal situation of shareholders such as the applicant, since the right of those shareholders to receive dividends and to participate in the management of ABLV Luxembourg has not been affected by that decision (see, by analogy, judgment 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, paragraph 110).

43      As is apparent from the judgment 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), the adverse effect on shareholders of the withdrawal of a credit institution’s licence is economic and not legal in nature, although such a credit institution is no longer in a position to continue its activity following that withdrawal and, in fact, to distribute dividends, the right of shareholders to receive dividends and to participate in management remains unchanged (see, to that effect, judgment 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, paragraph 111, and order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 41).

44      In the present case, that is all the more so since Decision SRB/EES/2018/10 provides only that ABLV Luxembourg is not to be placed under resolution. Thus, unlike the situation at issue in the case that gave rise to the judgment 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), that decision has neither the object nor the effect of withdrawing from that bank its licence authorising it to carry on the business of a credit institution (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 42).

45      In the light of the foregoing, it must be concluded that Decision SRB/EES/2018/10 is not of direct concern to the applicant within the meaning of the fourth paragraph of Article 263 TFEU.

–       Whether the applicant is directly affected in so far as the action is directed against Decision SRB/EES/2018/09 which concerns the applicant

46      The present action was brought by the applicant in its own name in so far as it seeks the annulment of Decision SRB/EES/2018/09.

47      In the first place, as regards the question whether that decision directly affects the applicant’s legal situation, it should be recalled that, in accordance with Article 18 of Regulation No 806/2014, if the ECB considers, in its assessment, that the entity concerned is failing or is likely to fail within the meaning of Article 18(1)(a) of that regulation, that results in the initiation of the procedure provided for in Article 18 of that regulation. By contrast, if the ECB reaches the opposite conclusion, the resolution procedure is not initiated, since the third subparagraph of Article 18(1) of Regulation No 806/2014 provides that the ECB must communicate its assessment to the Commission and the SRB only where it considers that the entity is failing or is likely to fail (see, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraphs 67 and 70).

48      Thus, first, the SRB’s conclusion, which is based on the ECB’s assessment that the applicant is failing or is likely to fail, is therefore an essential prerequisite for the operative part of Decision SRB/EES/2018/09 which provides that a resolution scheme is not to be adopted in respect of the applicant. Therefore, the conclusion that the applicant is failing or is likely to fail constitutes the necessary justification for Article 1 of the operative part of that decision. Accordingly, in so far as Decision SRB/EES/2018/09 states that the applicant is failing or is likely to fail, that decision directly affects the applicant’s legal situation within the meaning of the case-law cited in paragraph 39 above.

49      Second, as has been pointed out in paragraph 34 above, the decision not to adopt a resolution scheme and therefore not to impose resolution tools within the meaning of Regulation No 806/2014, some of which may allow the applicant to continue to carry on part of its activities, has direct effects on the applicant’s legal situation.

50      In the second place, as regards the question whether that decision leaves discretion to the addressees responsible for implementing it within the meaning of the case-law referred to in paragraph 39 above, it must be found that that is not the case here. The decision not to adopt a resolution scheme in respect of the applicant leaves no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules. The NRA concerned has no discretion in relation to the SRB’s decision that no resolution tool is to be adopted with regard to the applicant, since that decision does not require the application of any rule or intermediate measure in order to produce its binding legal effects. That conclusion is not called into question by the fact that that NRA may find it necessary to adopt measures implementing Decision SRB/EES/2018/09, in accordance with Article 29(1) of Regulation No 806/2014, the content of which is set out in Article 2(2) of the operative part of that decision, since they fall outside the framework of the resolution mechanism (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraph 43).

51      In particular, the liquidation of the applicant, under Latvian law, sits outside of any resolution scheme and does not arise from Decision SRB/EES/2018/09. That liquidation was decided upon by the shareholders of that company following the SRB’s decision that it was not necessary in the public interest to apply a resolution scheme to the applicant in accordance with Regulation No 806/2014 (see, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 49). The liquidation was therefore not ordered by that decision (see, to that effect, order of 14 May 2020, Bernis and Others v SRB, T‑282/18, not published, EU:T:2020:209, paragraphs 39 to 45).

52      It follows from the foregoing that the applicant does not have standing to bring proceedings against Decision SRB/EES/2018/10 and that the action is inadmissible in so far as it is directed against that decision. On the other hand, it does have such standing to bring proceedings against Decision SRB/EES/2018/09.

 Plea of inadmissibility alleging that the applicant has no interest in bringing proceedings

53      According to the SRB, the applicant has not established that it has a vested and present interest in bringing proceedings. It argues that the applicant has not shown how it would benefit from an annulment of the contested decisions. As regards the interests relied on by the applicant in so far as the contested decisions allegedly damaged the reputation of the credit institutions, the SRB submits that their reputation was affected not by the contested decisions, but by the FinCEN draft measure or by the ECB’s FOLTF assessment in respect of the two credit institutions. It claims that the interest in having the option of bringing an action for damages is not vested and present in the context of the action for annulment at hand. Lastly, if the applicant has suffered a loss, that would be the result of the shareholders’ decision to put the bank in self-liquidation.

54      According to the Court’s settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55 and the case-law cited).

55      It is common ground that, while seeking the annulment in full of Decision SRB/EES/2018/09, the applicant does not take issue with the refusal to put in place a resolution scheme, but disputes, in essence, the SRB’s conclusions that it was failing or likely to fail and that there was no reasonable prospect that other measures would prevent that failure.

56      However, particular aspects of the present case mean that it is impossible to deny that the applicant does have an interest in bringing proceedings.

57      First, as is also apparent from paragraphs 47 and 48 above, if the ECB concludes that the entity concerned is not failing or likely to fail, no assessment is submitted to the SRB and the resolution procedure is therefore not initiated. As soon as the FOLTF assessment is adopted by the SRB, that assessment is therefore an essential prerequisite for triggering the resolution procedure provided for in Article 18 of Regulation No 806/2014 and, therefore, for a formal decision as to whether or not to adopt a resolution scheme.

58      Thus, the grounds of Decision SRB/EES/2018/09, in particular the ECB’s FOLTF assessment in respect of the applicant, adopted by the SRB, constitute the necessary support for the operative part of that decision. If the Court were to conclude that that assessment was incorrect, the procedure which gave rise to that decision should not have been triggered in respect of the applicant.

59      Second, in the light of the banking activities in question, the entity concerned has a legitimate interest in not being subject to an assessment which makes it clear that it is failing or is likely to fail.

60      In the light of the foregoing, it must be concluded that the applicant has established that it has an interest in bringing proceedings for the annulment of Decision SRB/EES/2018/09.

61      The action is therefore inadmissible in so far as it is directed against Decision SRB/EES/2018/10 and admissible in so far as it seeks annulment of Decision SRB/EES/2018/09.

 Substance

62      The applicant puts forward 13 pleas in law in support of its action, alleging (i) that the SRB does not have the power to decide and has no legal basis for deciding that the applicant and ABLV Luxembourg must be liquidated, (ii) infringement of the applicant’s rights in so far as the SRB published its formal decision not to adopt a resolution scheme, (iii) infringement of Article 18(1)(b) of Regulation No 806/2014, (iv) infringement of Article 18(1)(a) of that regulation, (v) infringement of the right to be heard and of other related rights, (vi) infringement of the obligation to state reasons, (vii) failure to examine carefully and impartially all the relevant aspects of the case, (viii) infringement of the principle of proportionality, (ix) infringement of the principle of equal treatment, (x) infringement of the right to property and of the freedom to conduct a business, (xi) infringement of the nemo auditor principle, (xii) misuse of powers and (xiii) infringement of Article 41 of the Charter.

 Admissibility of the pleas in law

63      As regards the admissibility of the applicant’s arguments, the SRB claims, without giving specific reasons aside from essentially asserting in a general manner that the applicant’s arguments are unclear or inadequately substantiated, that the second, seventh, eighth, eleventh and twelfth pleas put forward in the application are inadmissible.

64      In that regard, it must be noted that, under Article 76(d) of the Rules of Procedure of the General Court, an application must state the subject matter of the proceedings and a summary of the pleas in law, and that that statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any other supporting information (judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraph 191).

65      It should also be noted that, in particular, it is necessary, for an action before the Court to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself (judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144, paragraph 192).

66      In the present case, as is apparent from paragraphs 79 to 85, 179 to 185, 187, 188, 195 to 200 and 202 to 206 below, it must be found that the matters of fact and law relied on by the applicant are immediately intelligible on reading the pleas concerned in the application. Similarly, it must be noted that the SRB was able to reply to those arguments in its defence. The Court was also able to identify the applicant’s arguments on reading the application.

67      It follows from the findings above that the second, seventh, eighth, eleventh and twelfth pleas in the application are admissible according to the requirements of Article 76(d) of the Rules of Procedure.

 Admissibility of the new evidence

68      On 27 October 2021, the applicant produced 11 documents containing new evidence in support of its arguments.

69      The SRB and the ECB contend that that evidence must be rejected as inadmissible on the ground that it was submitted out of time.

70      In accordance with the provisions of Article 85 of the Rules of Procedure, although the parties may produce evidence in support of their arguments in the reply and rejoinder, the Court allows evidence to be produced after the rejoinder only in exceptional circumstances, that is to say, if the party submitting the evidence could not, before the close of the written part of the procedure, provide the evidence in question or if the late submission by the other party justifies supplementing the file so as to ensure observance of the adversarial principle (see, to that effect, judgment of 5 March 2019, Pethke v EUIPO, T‑169/17, not published, EU:T:2019:135, paragraph 43 and the case-law cited).

71      In the present case, it should be noted that, first, documents A.1, A.2, A.4 to A.7, A.9 and A.11, produced on 27 October 2021, are dated after the closure of the written part of the procedure, which occurred on 5 September 2019, and that the other annexes, A.3, A.8 and A.10, relate, according to the applicant, to events and publications which occurred or were brought to its attention after the reply had been lodged, with the result that the applicant could not submit them before that date. Second, the evidence in question was submitted before the oral part of the procedure was closed within the meaning of Article 85(3) of the Rules of Procedure (see, to that effect, judgment of 12 September 2019, Achemos Grupė and Achema v Commission, T‑417/16, not published, EU:T:2019:597, paragraphs 37 and 38).

72      For those reasons, it is appropriate to accept, pursuant to Article 85(3) of the Rules of Procedure, the production of the evidence in Annexes A.1 to A.11 produced on 27 October 2021.

 The first plea in law, alleging that the SRB has no power to decide that the applicant must be liquidated

73      The applicant claims, in essence, that the SRB exceeded the powers conferred on it by Regulation No 806/2014 by ordering that it must be liquidated. In its reply, the applicant supports its claim that the SRB ordered that it be liquidated in the press release relating to the contested decisions, in those decisions themselves and in the subsequent public statements of the SRB.

74      The SRB disputes those arguments.

75      Article 2(2) of the operative part of Decision SRB/EES/2018/09 merely provides that, pursuant to Article 29(1) of Regulation No 806/2014, the FKTK is to implement that decision and ensure that any action it takes complies with it, in line with the considerations provided therein. That article does not specify the nature of the measures that the FKTK must or may take. In any event, as has already been pointed out in paragraph 51 above, it follows from the order of 14 May 2020, Bernis and Others v SRB (T‑282/18, not published, EU:T:2020:209), that contested decision SRB/EES/2018/09 does not directly and immediately require the FKTK to liquidate the applicant. The Court of Justice, in paragraph 49 of its judgment of 6 May 2021, ABLV Bank and Others v ECB (C‑551/19 P and C‑552/19 P, EU:C:2021:369), also stated that the applicant’s liquidation arose from a decision taken by the shareholders of that company following the SRB’s decision that it was not necessary in the public interest to apply a resolution scheme to the applicant, in accordance with Regulation No 806/2014.

76      Since the SRB did not, by Decision SRB/EES/2018/09, decide to liquidate the applicant, the arguments of the latter cannot be accepted.

77      In so far as the applicant relies, in support of its argument, on the wording used in the SRB’s press release of 24 February 2018, it should be noted that that press release is merely an informative measure which announces and summarises the contested decisions. Thus, the press release does not replace those decisions and cannot create obligations which do not flow from those decisions.

78      The first plea must therefore be rejected.

 The second plea in law, alleging that the SRB did not have the power to take a formal decision not to adopt a resolution scheme

79      The applicant submits, in essence, that the SRB did not have the power to take a formal decision not to adopt a resolution scheme within the meaning of Article 18(1) of Regulation No 806/2014, to the effect that, although the applicant may have been failing or may have been likely to fail and there may have been no reasonable prospect that other measures would prevent that failure within a reasonable timeframe, a resolution scheme was not necessary in the public interest.

80      The SRB disputes those arguments.

81      As is apparent from paragraph 70 of 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), if the ECB comes to the conclusion that the entity concerned is failing or is likely to fail, its assessment is sent to the SRB and the resolution procedure is initiated. At that time, it is for the SRB to verify whether the conditions referred to in Article 18(1) of Regulation No 806/2014 are met in order to decide whether to adopt a resolution scheme.

82      In paragraph 56 of 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 Court of Justice also found that that assessment by the ECB, being an intermediate measure and not an act that is open to challenge, was amenable to judicial review in the context of an action before the Courts of the European Union against the adoption by the SRB of a resolution scheme or against the decision not to adopt such a scheme. It follows that the SRB is required to take a positive or negative decision once it has examined the three conditions laid down in Article 18(1) of Regulation No 806/2014, if only to prevent a lacuna in the judicial protection of an entity, especially with regard to the ECB’s FOLTF assessment.

83      Furthermore, as the SRB also points out, that conclusion is supported by the broader regulatory context of Article 18 of Regulation No 806/2014. It is apparent from Article 82(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), that ‘a decision whether or not to take resolution action in relation to an institution or an entity … shall contain the following information’. That provision thus expressly provides for the possibility of adopting a decision not to take resolution action. That provision may be regarded as the equivalent of Article 18 of Regulation No 806/2014, which applies to smaller credit institutions which are not subject to direct supervision by the ECB but which are subject to the supervision by NRAs.

84      Moreover, once the ECB has taken the view that a credit institution is failing or is likely to fail, it is for the SRB to decide whether that assessment is correct and, if so, whether or not the credit institution in question will be the subject of a resolution. Moreover, the alleged lack of power on the part of the SRB to adopt a decision not to put in place a resolution scheme could jeopardise the stability of the establishment concerned and potentially of the financial markets, by giving rise to doubts as to the follow-up action to be taken in respect of that establishment in the light of the ECB’s assessment.

85      It follows that, following the initiation of the procedure by the ECB, the SRB was required to examine the criteria set out in Article 18(1) of Regulation No 806/2014 and to take a decision following that examination.

86      The second plea must therefore be rejected.

 The third and fourth pleas in law, alleging infringement of Article 18(1)(a) and (b) of Regulation No 806/2014

87      It is appropriate to deal with the third and fourth pleas together; the former consists of one part, while the latter consists of four parts. In the fourth plea, which should be addressed first, the applicant submits, in the first place, that the SRB erred in failing to carry out its own examination of the condition laid down in Article 18(1)(a) of Regulation No 806/2014. The SRB relied entirely on the ECB’s FOLTF assessment in respect of the applicant. In the second place, as regards that assessment, the applicant argues that the temporary liquidity problems with which it was confronted following the FinCEN draft measure do not in themselves constitute sufficient grounds for finding that it was failing or likely to fail. The EBA/GL/2015/07 Guidelines of the European Banking Authority (EBA) of 6 August 2015 on the interpretation of the different circumstances when an institution shall be considered as failing or likely to fail under Article 32(6) of Directive 2014/59 (‘the EBA Guidelines’) recommend that all objective elements be taken into account and advise against basing the FOLTF assessment of an entity on a single element, such as the immediate availability of cash. In the third place, the applicant maintains that the amount of EUR 1 thousand million which the ECB stated must be available in the applicant’s account with the Bank of Latvia before the moratorium would be lifted on 23 February 2018 was disproportionate. The ECB made an overestimation in its prediction of the amount of deposits that would be withdrawn if the applicant were to reopen by taking as its basis an average withdrawal of EUR 200 million per day over a five-day period. In the fourth place, the applicant puts forward a series of arguments in support of its claim that the ECB did not take into account all its liquid assets, especially those to which it did not have immediate access. In the third plea, the applicant submits that the SRB did not examine sufficiently whether there was a reasonable prospect that other measures would prevent its failure.

88      The SRB and the ECB dispute all those arguments.

89      Before examining the merits of the third and fourth pleas, it is appropriate to make the following preliminary observations.

–       The degree of judicial review of the SRB’s FOLTF assessment

90      First of all, it is appropriate to examine the scope of the review to be carried out by the General Court in the present case.

91      It is apparent from case-law that the review by the EU judicature of the complex economic assessments made by the EU institutions, bodies, offices and agencies is limited in that it is necessarily confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers. When conducting such a review, the EU Courts must not substitute their own economic assessment for that of the competent EU authority (see, to that effect, judgments of 11 July 1985, Remia and Others v Commission, 42/84, EU:C:1985:327, paragraph 34; of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 100 and the case-law cited; and of 16 January 2020, Iberpotash v Commission, T‑257/18, EU:T:2020:1, paragraph 96 and the case-law cited).

92      Since the SRB’s FOLTF assessments are based on complex economic assessments, it must be held that that case-law can be applied to that type of assessment.

93      Although the SRB does have a margin of discretion in that regard, that does not mean that the EU Courts must refrain from reviewing the SRB’s interpretation of the economic data on which its decision is based. As the Court of Justice has held previously, even in the case of complex assessments, the EU Courts must establish not only whether the evidence relied on was factually accurate, reliable and consistent, but also whether that evidence contained all the relevant information which must be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it (see, by analogy, judgments of 22 November 2007, Spain v Lenzing, C‑525/04 P, EU:C:2007:698, paragraph 57 and the case-law cited; of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 104 and the case-law cited; and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 115 and the case-law cited).

94      In that regard, in order to establish that the SRB made a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the decision in question implausible (see, by analogy, judgments of 14 June 2018, Lubrizol France v Council, C‑223/17 P, not published, EU:C:2018:442, paragraph 39; of 12 December 1996, AIUFFASS and AKT v Commission, T‑380/94, EU:T:1996:195, paragraph 59; and of 13 December 2018, Comune di Milano v Commission, T‑167/13, EU:T:2018:940, paragraph 108 and the case-law cited).

95      The findings above are not called into question by the applicant’s argument that the concept of liquidity was defined by the EU legislature in Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1) and Commission Delegated Regulation (EU) 2015/61 of 10 October 2014 to supplement Regulation No 575/2013 with regard to liquidity coverage requirement for credit institutions (OJ 2015 L 11, p. 1). The applicant claims that the SRB and the ECB have no discretion in that regard and that it is for the General Court to monitor strictly compliance with those rules so that judicial review is not circumvented.

96      However, contrary to what is claimed by the applicant, the ECB’s FOLTF assessment in respect of the applicant, adopted by the SRB, is not based on the definition of the concept of liquidity set out in the legislative instruments cited in paragraph 95 above, which form part of prudential supervision, but concerns the question whether an entity will, in the near future, be unable to pay its debts or other liabilities as they fall due, within the meaning of Article 18(4)(c) of Regulation No 806/2014. In the present case, the ECB and the SRB took the view that, in order to prevent the applicant’s failure, the applicant had to have EUR 1 thousand million in cash in its account with the Bank of Latvia at a particular time. That requirement is based on a prospective analysis of the economic situation in which the applicant would find itself if the moratorium over it were lifted. Such an analysis necessarily requires account to be taken of a set of economic data and to make predictions concerning the evolution of the market situation after the lifting of that moratorium and the associated risks and is therefore based on complex economic assessments within the meaning of the case-law cited in paragraph 91 above.

–       Other initial observations

97      As regards the applicant’s argument that the subsequent events relating to its liquidity situation demonstrated that the ECB’s prospective analysis was incorrect, the Court is called upon to decide whether, at the time when the FOLTF assessment in respect of the applicant was adopted, the ECB and the SRB made a manifest error of assessment in concluding, on the basis of objective evidence, that the applicant would, in the near future, no longer be able to pay its debts, taking into account the discretion available to those institutions.

98      It should be noted that, according to settled case-law, in an action for annulment the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted and that the assessments made by the SRB must be examined solely on the basis of the information available to it at the time when those assessments were made (see, to that effect, judgments of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 37 and the case-law cited, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 115 and the case-law cited).

99      Accordingly, the subsequent events relied on by the applicant, which demonstrate the temporary nature of its liquidity problems, even if they were established, cannot invalidate the ECB’s FOLTF assessment, which was adopted by the SRB, or the view that there were no alternative measures capable of preventing the failure.

100    The applicant then refers on several occasions to the unlawful nature of the FinCEN draft measure and the reaction to it among its partners who refused to carry out United States dollar transactions with the applicant. It claims that that measure and that reaction gave rise to the huge withdrawals of deposits from the applicant and a cash-flow shortage. According to the applicant, the ECB was obliged to clarify for those partners the scope of the FinCEN draft measure, which was not a definitive measure prohibiting the applicant’s assets in United States dollars being released.

101    However, it should be noted that the causes of the applicant failing or being likely to fail are not a factor to be taken into account when carrying out the examination provided for in Article 18(4) of Regulation No 806/2014. That provision defines four situations in which an entity is deemed to be failing or is likely to fail. In the present case, the ECB took the view, on the basis of the huge withdrawals affecting the applicant, that, in the near future, it would not be able to pay its debts or other liabilities as they fall due within the meaning of Article 18(4)(c) of that regulation. The SRB adopted the ECB’s conclusion. Since the reasons which gave rise to that situation are not relevant, there is no need, in the context of the present action, to determine whether the FinCEN draft measure and the claim that the applicant’s partners decided, following the publication of that draft, to suspend all payments to it have been substantiated. Nor, moreover, is it relevant to examine, in the context of an action brought against a decision based on Article 18 of Regulation No 806/2014, whether the ECB was obliged to clarify the applicant’s legal position with the US authorities or its partners operating on the US market.

102    It is in the light of those observations and principles that it is necessary to examine whether the SRB was entitled to base Decision SRB/EES/2018/09 on the FOLTF assessment in respect of the applicant, according to which there were objective elements supporting the conclusion that, in the near future, it would no longer be able to pay its debts or other liabilities as they fall due, within the meaning of Article 18(4)(c) of Regulation No 806/2014, and that, having regard to timing and other relevant circumstances, there was no reasonable prospect that any alternative private-sector measures, including measures by an institutional protection scheme, or supervisory action, including early intervention measures or the write-down or conversion of relevant capital instruments in accordance with Article 21 of that regulation, taken in respect of the entity, would prevent its failure within a reasonable timeframe, within the meaning of Article 18(1)(b) of that regulation.

–       Whether the SRB was entitled to rely on the ECB’s FOLTF assessment in respect of the applicant

103    The applicant submits, in the reply, that the SRB could not rely solely on the ECB’s FOLTF assessment in respect of the applicant without carrying out its own examination. That objection, which it is appropriate to deal with first, must be rejected irrespective of whether it is a new objection for the purpose of Article 84(1) of the Rules of Procedure.

104    That objection amounts to disregarding the role of the ECB in the system established by Article 18 of Regulation No 806/2014 as found by the Court of Justice in 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).

105    It is true that the SRB is not bound by the ECB’s FOLTF assessment. That assessment is not a binding act and, in particular, does not put the SRB in a position where its powers in respect of that assessment are circumscribed. There is nothing in the wording of that provision to indicate that the SRB would have no power to assess whether the entity in question is failing or is likely to fail (see, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 67).

106    However, the second subparagraph of Article 18(1) of that regulation gives the ECB a primary – albeit not exclusive – role, since it is the ECB which, as a general rule, is first required to carry out a FOLTF assessment. While the SRB may also carry out such an assessment, it may do so only after informing the ECB of its intention to do so and only if the ECB, within three calendar days of receipt of that information, does not make such an assessment. The ECB is therefore recognised as having primary power to carry out such an assessment, based on its expertise as supervisory authority, since, having access in that capacity to all supervisory information regarding the entity concerned, it is best placed to determine, in the light of the definition of failing or likely to fail in Article 18(4) of that regulation, which refers, in particular, to matters related to the prudential situation such as the requirements for authorisation, the amount of assets compared to liabilities or the present or future indebtedness, whether that condition is satisfied (see, to that effect, judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 62).

107    In the present case, the SRB stated in Section 3.2.1 of contested decision SRB/EES/2018/09, relying on the ECB’s assessment, that the applicant was deemed to be failing or likely to fail within the meaning of Article 18(1)(a) of Regulation No 806/2014, read in conjunction with Article 18(4)(c) of that regulation, on the ground that, if the moratorium were lifted after 23 February 2018, it was highly likely that the outflows from the establishments would continue at the same pace as before the moratorium was imposed, given the reputational damage caused by the FinCEN draft measure. In doing so, the SRB endorsed the ECB’s assessment that the applicant had to have a counterbalancing capacity of EUR 1 thousand million in its account held with the Bank of Latvia, an amount which would be capable of responding to the scale of the withdrawals expected during the five days immediately following the lifting of the moratorium. Given that that counterbalancing capacity had not been reached, the SRB also endorsed the ECB’s view that the applicant was likely to be unable, in the near future, to pay its liabilities as they fell due and that it was failing or was likely to fail.

108    In those circumstances and having regard to the broad discretion enjoyed by the SRB in accordance with the case-law referred to in paragraphs 91 to 94 above in the context of the complex economic assessment represented by the FOLTF assessment in respect of the applicant, the SRB, while not bound by the ECB’s examination and view, did not err in law by taking the latter as its basis, since the ECB was the institution best placed to carry out the FOLTF assessment in respect of the applicant.

109    Therefore, the applicant’s arguments cannot be accepted.

–       The FOLTF assessment in respect of the applicant which is based, in essence, on its liquidity crisis

110    According to the applicant, the ECB erred in taking the view that a temporary problem in accessing certain liquidity substantiated the conclusion that that applicant was failing or likely to fail. The ECB relied on a single circumstance, namely the temporary cash-flow shortage following huge withdrawals between 14 and 16 February 2018, and did not take sufficient account of the applicant’s overall situation. The applicant maintains that neither its coverage ratio nor its high capitalisation were sufficiently taken into account. It follows, in particular, from the EBA Guidelines that all objective elements relating to a credit institution’s difficulties had to be weighed up when determining whether that institution is failing or likely to fail.

111    It should be noted at the outset that, according to Article 18(4) of Regulation No 806/2014, an entity is to be deemed to be failing or likely to fail in one or more of the circumstances listed under points (a) to (d) of that provision. In the present case, the ECB took the view that the applicant was, or there were objective elements to support a determination that the entity would, in the near future, be unable to pay its debts or other liabilities as they fell due, within the meaning of Article 18(4)(c) of that regulation. As the ECB correctly submitted, it is not apparent from Article 18 of Regulation No 806/2014 that the ECB and the SRB must take account of factors such as the coverage ratio or the level of capitalisation of a credit institution before being able to conclude that that credit institution is failing or is likely to fail.

112    That finding is not called into question by the EBA Guidelines. Under paragraph 5 of the English-language version thereof, pursuant to Article 32(6) of Directive 2014/59, those guidelines intend to promote the convergence of supervisory and resolution practices regarding the interpretation of the different circumstances when an institution shall be considered as failing or likely to fail. The ECB correctly submits that those guidelines cannot be interpreted in a manner that contradicts Regulation No 806/2014 and therefore that they do not impose additional conditions which do not flow from Article 18 of that regulation.

113    In any event, in accordance with paragraph 14 of the English-language version of the EBA Guidelines, the resolution authority should assess the objective elements relating to, inter alia, the capital and liquidity positions of the credit institution. Under paragraph 16 of the English-language version of those guidelines, although, in most cases, it is expected that several factors, rather than merely one, set out in those guidelines would inform the determination that an institution is failing or likely to fail, there might be situations where meeting just one condition, depending on its severity and prudential impact, would be sufficient to trigger resolution. Contrary to what is claimed by the applicant, it does not therefore follow from the EBA Guidelines that several conditions or factors must necessarily be taken into consideration before it can be concluded that a credit institution is or will, in the near future, be unable to pay its debts or other liabilities as they fall due.

114    Next, as the ECB has argued, liquidity is of primary importance for a credit institution, given that its main function is to take deposits from the public and to reinvest them in the real economy by granting loans. That function as an intermediary is based on the premiss that a depositor must be in a position to have his or her deposits returned on demand; in principle, they must be available immediately. If a bank cannot repay depositors’ funds, that affects not only confidence in that credit institution but also, potentially, as that distrust spreads, confidence in the banking system as a whole. It is common ground, moreover, that phenomena involving huge withdrawals affect not only credit institutions in difficulty, but also healthy institutions following a loss of public confidence in the soundness of that system (see, to that effect, judgment of 4 October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph 56 and the case-law cited).

115    Consequently, in circumstances such as those of the present case, characterised by huge withdrawals of deposits following a breakdown in confidence between the credit institution and its customers, that institution’s cover ratio and its capitalisation are of less importance compared to the immediate availability of liquidity within that institution. The applicant’s arguments must therefore be rejected.

–       The ECB’s conclusion that, in order to prevent its failure, the applicant had to have EUR 1 thousand million in cash held with the Bank of Latvia on 23 February 2018 at 18.00

116    The applicant claims, in essence, that the counterbalancing capacity in the amount of EUR 1 thousand million in its account with the Bank of Latvia, which the ECB regarded as being necessary in order to repay deposits that may have been withdrawn in the short term if the applicant had reopened after the moratorium was lifted, was disproportionate.

117    First, the applicant submits that the ECB’s FOLTF assessment, which was adopted by the SRB, failed to take account of the fact that sight deposits, which did not fall due as such and were therefore payable immediately, had been converted into term deposits amounting to EUR 449 million on 22 February 2018. According to the applicant, those deposits were not payable, without its consent, for a period of six months after conversion, which is why those deposits could not be withdrawn in the short term. The amount of deposits immediately payable is therefore EUR 1.596 thousand million and not EUR 2.043 thousand million as assessed by the ECB.

118    Second, according to the applicant, there is no basis for the ECB’s argument that withdrawals of deposits would have continued at the same pace as during the three days preceding the suspension of payments, from 14 to 16 February 2018, namely withdrawals of EUR 200 million on average per day. There is no evidence that the withdrawal of deposits after the lifting of the moratorium would have been linear. It claims that, after the initial withdrawal of the most volatile deposits, a more stable core balance of deposits would have remained. On that point, the applicant refers to the internal liquidity adequacy assessment process (ILAAP), approved by the ECB in its most recent Supervisory Review and Evaluation Process (SREP) decision from 2017, from which it is apparent that a large proportion of sight deposits are stable and enjoy depositor confidence.

119    Moreover, the outflows were already lower on 16 February 2018 compared with the previous day. The attempts to withdraw sums via the internet concerned only EUR 28 million per business day during the moratorium. Moreover, the applicant had already discharged a considerable number of its payment obligations in United States dollars by securities transfers in euros, even though, on 15 February 2018, it had taken the decision to replace payments in United States dollars with payments in euros or in kind and, from 16 February onwards, to cease completely all payments on debts denominated in United States dollars, relying on force majeure. During that period of force majeure, EUR 167 million was still paid in kind in respect of the applicant’s United States dollar payment obligations. It is highly unlikely that the requests to withdraw deposits immediately after the lifting of the moratorium would have amounted to EUR 200 million per day.

120    In response to those arguments, first, it should be noted, as observed by the ECB, that there was no guarantee that deposits converted into term deposits would not be withdrawn in the short term, if necessary in return for the payment of a penalty. The ECB also pointed out, at the hearing, that the vast majority of depositors had not accepted to convert their deposits into term deposits. It inferred from this that those depositors who had refused to convert their deposits were in a position to ask that their deposits be returned to them at short notice. Those were deposits with a value of EUR 1.596 thousand million. In addition, it noted that the conversion of a certain number of deposits did not alter the estimate that the withdrawals would continue at an average pace of EUR 200 million per day and that it was therefore necessary for the applicant to have a counterbalancing capacity of EUR 1 thousand million before that credit institution could reopen.

121    The arguments put forward by the applicant do not call into question the ECB’s assessment of the facts. The applicant merely asserts, without adducing any supporting evidence, that it was agreed as regards term deposits that they would not be withdrawn for a period of six months. In any event, even if that assertion were proved and substantiated, it would not invalidate the ECB’s view that the withdrawals would probably take place at the same speed and to the same extent after the hypothetical reopening of the entity in question and that it was therefore necessary to have a high amount of liquidity in order to support the requests during the five days following that reopening. Unconverted deposits still amounted to EUR 1.596 thousand million, an amount which vastly exceeds the counterbalancing capacity of EUR 1 thousand million required by the ECB.

122    Second, nothing in the documents available to the General Court is such as to call into question the ECB’s view that the applicant’s internal liquidity adequacy assessments, on which it relies, were of limited value at the time of the exceptional situation that gave rise to Decision SRB/EES/2018/09. It is true that the applicant’s ILAAP had been approved by the ECB in 2017, but it is not in dispute that, in February 2018, the applicant was facing an unforeseen circumstance involving huge withdrawals of deposits following a loss of public confidence in the soundness of that credit institution, which was separate from the question of whether it was a healthy institution or one that was in difficulty.

123    In those extraordinary circumstances, the ECB did not make a manifest error of assessment in relying on the level of withdrawals of deposits from 14 to 16 February 2018, which sufficiently reflected that credit institution’s situation at the time of the FOLTF assessment and the adoption of the contested decision. As the ECB correctly pointed out, considering the average liquidity outflows of EUR 200 million per day from 14 to 16 February 2018 when calculating the liquidity reserve at the deadline is explained by the fact that, during a liquidity crisis, outflows can be volatile and using an average measure reduces the risk of calculation errors. Moreover, the ECB used uncontested and objective data that were up to date at the time Decision SRB/EES/2018/09 was adopted. With regard to the reputational damage to the applicant and the resulting loss of confidence, the ECB did not make a manifest error of assessment in taking the view that the withdrawals would continue at the same pace after the lifting of the moratorium, since no event capable of reassuring the markets had occurred in the meantime.

124    Moreover, nor can the applicant’s argument that the extent of the withdrawals showed a downward trend between 14 and 16 February 2018 succeed. In that regard, the ECB stated at the hearing, without being contradicted, that the amount of the withdrawals was higher on 15 February than on 14 February, with the result that it was impossible to find that there was either an upward or a downward trend. The applicant’s arguments must therefore be rejected.

–       Other arguments concerning the ECB’s FOLTF assessment in respect of the applicant adopted by the SRB

125    The applicant puts forward a series of other arguments in support of its challenge to the outcome of the ECB’s FOLTF assessment adopted by the SRB. In that regard, it claims, in essence, that the ECB failed to take into account all the liquid assets available to it or which could be made available to it. The ECB took into account the amount of EUR 694 million available in the applicant’s account with the Bank of Latvia at the deadline, 23 February 2018 at 18.00, and disregarded the assets not included in that account. The applicant argues, in essence, that a series of assets worth EUR 690 million were incorrectly excluded by the ECB, which could have been converted into cash if the ECB had so requested. Those assets would have been available within a reasonable period of time as deposits were withdrawn.

126    As regards, at the outset, the fact that only the liquid assets in the applicant’s account with the Bank of Latvia were taken into consideration by the ECB, it should be noted that the ECB confirmed, at the hearing, that only the cash available on that account could be verified by it, whereas it was unable to confirm the immediate availability of other assets. Moreover, the applicant’s argument that it had not been informed of the fact that only the cash available in that account could be taken into consideration in order to calculate the counterbalancing capacity at the deadline must be rejected. As the ECB argued in paragraph 93 of its statement in intervention and without being contradicted, that requirement was clearly communicated to the applicant’s representatives, in particular at a meeting of 20 February 2018, the minutes of which are set out in Annex F.4.1 to the ECB’s statement in intervention.

127    The applicant cannot validly complain that the ECB made no distinction between liquid assets in its possession with access to it, given that certain assets were temporarily inaccessible. The applicant has not shown that access to those assets would have been reinstated in time to satisfy the demand in withdrawals of deposits.

128    It follows that the ECB took into account and evaluated the assets referred to by the applicant, but that, because of the uncertainty as to whether those assets could be available immediately, it based its conclusion solely on the assets actually available in the applicant’s account with the Bank of Latvia at the deadline.

129    The ECB explained, in that regard, in paragraphs 15 to 19 of the statement in intervention, that the liquid assets that a credit institution holds to meet liquidity outflows come mainly from two sources. The first source is cash, which is, in principle, in the form of cash accounts held with the central bank or with other stakeholders, to which the establishment in question may have access on request. The second source of liquidity is certain high-quality marketable securities which may be pledged as collateral, usually with a haircut from nominal value, in order to obtain a cash loan from a central bank or a partner or which can be sold outright to another counterparty to obtain cash. Obtaining a loan requires the custodian holding the securities to pledge those securities, whereas the sale of securities may require additional time, as it involves the assistance of more stakeholders, in addition to that of the custodian holding the security, such as the central securities depository and the commercial or central bank.

130    Next, it stated that existing moneys in cash accounts, especially those held with a central bank, were immediately available for a bank in need of cash to pay out to depositors and other creditors. However, borrowing on the money markets, or otherwise obtaining cash from sources other than the central bank, is dependent on the willingness of commercial partners. Therefore, market funding cannot be taken for granted and may be limited, or subject to very high haircuts on the collateral, or at times completely unavailable. Given these limitations on market funding, many central banks retain a lender of last-resort function, in which they generally extend emergency cash loans to commercial banks, against collateral, in situations when other counterparties are not willing to do so.

131    According to the ECB, in that context, the solution to the applicant’s liquidity crisis which it and the ECB adopted was one of seeking to transform the credit institution’s supposedly liquid assets into a sufficient amount of cash – a counterbalancing capacity – which would be immediately accessible to the bank without any restrictions in order to meet withdrawal demand.

132    It is the ECB’s view that, given that several partners holding the applicant’s securities did not wish to release the applicant’s assets because of the FinCEN draft measure and since the majority of the correspondent banks of the applicant ceased their business relations or imposed severe limits on transaction amounts, only cash balances or securities held with the Bank of Latvia could be considered immediately available for the purpose of satisfying upcoming requests to withdraw deposits.

133    In the light of the foregoing, the ECB provided a plausible explanation of the reasons why the assets whose actual availability in the applicant’s account with the Bank of Latvia at the deadline had not been proved could not be taken into account for the purposes of calculating the counterbalancing capacity.

134    Furthermore, the applicant makes reference to a number of specific categories of assets that the ECB should have taken into consideration when carrying out its FOLTF assessment.

135    As regards, first, the income from the sale of securities in the amount of EUR 407 million, it must be held that the applicant has not established to the requisite legal standard that those securities were assets that were easily and immediately accessible and available for use in order to pay depositors wishing to withdraw their deposits immediately after any lifting of the moratorium. It is common ground that the proceeds from that sale, even if they were realised, were not paid into the applicant’s account with the Bank of Latvia before 23 February 2018 at 18.00, as the ECB correctly pointed out. The ECB cannot therefore be criticised for not having counted the securities or income from their supposed sale among the liquid assets directly available on the day after 23 February 2018 for the purpose of repaying deposits if such repayment was requested.

136    As regards, second, the liquid assets held by the applicant in the nostro accounts (bank accounts held by the applicant with other banks) amounting to EUR 29 million and the assets with a value of EUR 13 million in its possession in the account it holds with Euroclear, it should be noted that the ECB took them into account in paragraphs 30 and 31 of the FOLTF assessment in respect of the applicant. The securities held by Euroclear on behalf of the applicant were, in its opinion, high-quality securities, such as government bonds, and were easily convertible within a reasonable period of time. However, those conversions into cash were equally unable to be performed in time, with the outcome that the corresponding amounts were not available in the applicant’s account with the Bank of Latvia on 23 February 2018 at 18.00. It is clear from the tables in Annexes G.4 and G.5 to the applicant’s observations on the ECB’s statement in intervention that a substantial part of the proceeds of sale were paid by Euroclear to the applicant long after that date.

137    The applicant’s argument that the conversion of highly liquid assets had to be carried out in step with ongoing payments and that it became apparent after 23 February 2018 that the period for converting certain securities had decreased does not call into question the ECB’s assessment, given that the ECB had concluded, without making a manifest error of assessment, as is apparent from paragraphs 126 to 133 above, that only the presence of cash in the applicant’s account with the Bank of Latvia guaranteed that that cash would be immediately available.

138    The same applies, third, to the other securities which the applicant claims to have held and which were allegedly sold for EUR 358 million, which included a quantity of investment-grade securities worth EUR 229 million, and, fourth, to the EUR 12 million in cash which the applicant claims it had at its disposal. It has not been established that those assets would have been available immediately if the moratorium were to have been lifted; nor were those assets converted into cash in the applicant’s account with the Bank of Latvia by the end of the day on 23 February 2018.

139    Fifth, the applicant claims that the ECB erred in deciding on 21 February 2018 to limit the applicant’s access to monetary policy operations. Thus, it did not have access to a EUR 40 million credit line which could have been used to raise additional liquidity. The ECB contends that this was a decision of its Governing Council of 21 February 2018 taken in the context of prudential supervision. The applicant does not actually dispute the validity of that decision of the Governing Council and does not clearly explain how access to that credit line could have contributed to raising additional liquidity in order to meet the objective of making EUR 1 thousand million available in the applicant’s account with the Bank of Latvia. In any event, that decision does not form part of the decision contested in the present action, nor does it constitute its legal basis, which means that it does not fall within the subject matter of the present proceedings.

140    In circumstances such as those of the present case, having regard to the precaution and prudence required of the ECB in a crisis situation, it was entitled to take into account only the cash immediately available to the Bank of Latvia on the applicant’s account, in order to avoid any risk that requests for withdrawals would not be satisfied within five days of the lifting of the moratorium, since the assets which the applicant claims to have elsewhere were not rapidly available.

141    Nor is the ECB’s FOLTF assessment in respect of the applicant, which was subsequently adopted by the SRB, called into question by the argument that the ECB’s counterbalancing capacity requirement was not reasonable, given that, in order to meet that requirement, the applicant had to release significant sums in order to convert securities and other assets into cash that was immediately available. That argument does not detract from the ECB’s assessment of the counterbalancing capacity that had to be proved to be in the account at the deadline.

142    Lastly, according to the applicant, the moratorium could have been extended so that it could restore its liquidity without triggering the deposit guarantee scheme. In that regard, the ECB relied on a misinterpretation of Article 2(8) of the Noguldījumu garantiju likums (Latvian Deposit Protection Act). That provision states that the FKTK is to adopt a decision on the unavailability of deposits within five working days from the date when it has ascertained that the deposit taker was unable to disburse deposits. However, during a moratorium, it is impossible to establish that deposits are unavailable, since payments are, in any event, suspended. Accordingly, the ECB’s argument that an extension of the moratorium automatically triggered the deposit guarantee scheme and was therefore impossible is, on that basis, incorrect.

143    That argument is also unsuccessful.

144    In the present case, the ECB took the view that the applicant was experiencing a cash-flow shortage following a huge withdrawal of deposits from 14 to 16 February 2018. It gave the applicant five days from the entry into force of the moratorium to restore its liquidity in order to cope with a forthcoming wave of withdrawals. However, when the deadline was reached, the applicant was not able to show that it had EUR 1 thousand million in its account with the Bank of Latvia.

145    The ECB therefore did not make a manifest error of assessment when it concluded, at that time, on the basis of point (a) of the first subparagraph and the second subparagraph of Article 18(1) and Article 18(4)(c) of Regulation No 806/2014, that the applicant was failing or likely to fail. In those circumstances, the ECB was under no obligation to instruct the FKTK to extend the moratorium.

146    Therefore, in the light of the discretion available to the SRB in its complex economic analysis, the applicant has not demonstrated that it made a manifest error of assessment in concluding that it was failing or likely to fail.

–       Whether there was a reasonable prospect of other measures preventing a failure

147    The applicant submits, in essence, that the SRB has not sufficiently substantiated its conclusion that there was no reasonable prospect that other private-sector measures or supervisory action, taken with regard to the applicant, could have prevented its failure within a reasonable timeframe.

148    The SRB disputes those arguments.

149    In accordance with Article 18(1)(b) of Regulation No 806/2014, a resolution scheme may be adopted only if, inter alia, having regard to timing and other relevant circumstances, there is no reasonable prospect that any alternative private-sector measures, including measures by an institutional protection scheme, or supervisory action, including early intervention measures or the write-down or conversion of relevant capital instruments in accordance with Article 21 of that regulation, taken in respect of the entity, would prevent its failure within a reasonable timeframe.

150    In Section 3.2.2 of Decision SRB/EES/2018/09, the SRB concluded that there was no alternative measure which could reasonably have prevented the applicant’s failure. The SRB relied, in essence, in its examination, on evidence produced by the ECB in the context of its FOLTF assessment in respect of the applicant.

151    The SRB cannot be criticised for having relied on the ECB’s FOLTF assessment in respect of the applicant when examining the condition laid down in Article 18(1)(b) of Regulation No 806/2014. It is true that the conditions referred to in Article 18(1)(a) and (b) of that regulation are separate. The fact remains that, in the present case, the examination of the various measures and actions referred to in Article 18(1)(b) of that regulation was integrated into the ECB’s FOLTF assessment in respect of the applicant, which related to the condition laid down in Article 18(1)(a) of that regulation. Before the ECB concluded that the applicant was failing or was likely to fail, it examined whether that failure could still be avoided by alternative measures, such as an extension of the moratorium or the implementation of the available liquidity recovery options from its 2017 recovery plan. In addition, under the fourth subparagraph of Article 18(1), ‘[the] assessment of the condition referred to in point (b) of the first subparagraph shall be made by [SRB] … in close cooperation with the ECB’ and ‘the ECB may also inform the [SRB] … that it considers the condition laid down in that point to be met’. The SRB could therefore rely on the examination carried out by the ECB.

152    In view of the specific and objective factors put forward by the SRB in Section 3.2.2 of Decision SRB/EES/2018/09, the applicant has failed to set out the reasons why the alternative measures taken into consideration by the SRB and by the ECB were indeed such as to prevent its failure within a reasonable timeframe. The applicant does not identify other measures which the SRB should have taken into account in its examination. In those circumstances, the mere unsubstantiated assertion that the SRB disregarded the existence of alternative measures is insufficient to render implausible the SRB’s assessment and is not capable of demonstrating that there has been a manifest error of assessment.

153    The third and fourth pleas must therefore be rejected.

 The fifth plea in law, alleging infringement of the right to be heard and of the right to have access to the administrative file

154    The applicant claims that the SRB infringed its right to be heard, within the meaning of Article 41 of the Charter, by failing to give it the opportunity to submit comments to the SRB before the adoption of Decision SRB/EES/2018/09. Nor did it have access to the SRB’s administrative file.

155    The SRB disputes those arguments.

156    Under Article 41(2)(a) of the Charter, the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him or her adversely is taken.

157    The right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely. Next, it should be stated that the right to be heard pursues a dual objective. First, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible, and, second, to ensure that the person concerned is in fact protected. The right to be heard is intended, inter alia, to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (see judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraphs 68 and 69 and the case-law cited).

158    The Court of Justice has previously affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right had to apply in all proceedings which are liable to culminate in an act adversely affecting a person. Observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (see judgments of 22 November 2012, M., C‑277/11, EU:C:2012:744, paragraphs 85 and 86 and the case-law cited; of 7 November 2019, ADDE v Parliament, T‑48/17, EU:T:2019:780, paragraph 89 and the case-law cited; and of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 67 and the case-law cited).

159    Similarly, Article 41(2)(b) of the Charter enshrines the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy.

160    It should be stated, at the outset, that Regulation No 806/2014 has the objective of establishing, in accordance with recital 8 thereof, more efficient resolution mechanisms, which must be an essential instrument to avoid damages that have resulted from failures of banks in the past. As regards the procedure provided for in Article 18 of that regulation, that objective presupposes a speedy decision-making process, which often occurs in emergency circumstances – as the short time limits laid down in that provision illustrate – so that financial stability is not jeopardised (judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 55).

161    However, although it is necessary to take into account the need for speed in the procedure provided for in Article 18 of Regulation No 806/2014, it must also be reconciled with the right to be heard.

162    Recital 26 of Regulation No 806/2014, moreover, confirms both the shared power of the ECB, as the supervisor within the SSM, and the SRB, as resolution authority, to assess whether a credit institution is failing or is likely to fail, and the exclusive power of the SRB to assess whether the other requirements for the adoption of a resolution scheme are met (judgment of 6 May 2021, ABLV Bank and Others v ECB, C‑551/19 P and C‑552/19 P, EU:C:2021:369, paragraph 64).

163    Having regard to the nature of that complex administrative procedure referred to in Article 18 of Regulation No 806/2014 and conducted by the ECB and the SRB jointly and successively, neither Article 41 of the Charter nor the provisions of that regulation require that the entity concerned by the decision to adopt or not adopt a resolution scheme be heard at each stage of the procedure by each of those two bodies separately.

164    In the present case, it is common ground, first, that, although the applicant was not heard by the SRB before Decision SRB/EES/2018/09 was adopted, it was, by contrast, heard on several occasions by the ECB.

165    The applicant was given an opportunity to comment on the relevant elements in the FOLTF assessment. In addition, as is apparent from paragraph 151 above, the ECB examined the alternative measures which may have been capable of preventing the applicant’s failure. In its assessment, which it carried out after hearing the applicant, the ECB examined its arguments, summarising them and responding to them. The SRB, to which the ECB’s assessment was subsequently sent, was therefore fully aware of the applicant’s arguments when it adopted Decision SRB/EES/2018/09, in which it endorsed the ECB’s conclusions concerning the conditions laid down in Article 18(1)(a) and (b) of Regulation No 806/2014.

166    It is true that, in Decision SRB/EES/2018/09, the SRB examined for the first time the condition laid down in Article 18(1)(c) of Regulation No 806/2014 requiring resolution action to be necessary in the public interest. However, none of the applicant’s objections is directed against the alleged absence of any public interest; instead, they are directed against, first, the conclusion that the applicant was failing or was likely to fail, in accordance with Article 18(1)(a) of Regulation No 806/2014, and, second, the assertion that, having regard to timing and other relevant circumstances, there was no reasonable prospect that any alternative private-sector measures or supervisory action would prevent its failure within a reasonable timeframe within the meaning of Article 18(1)(b) of that regulation. Therefore, the applicant was heard on the points which it is contesting during the administrative procedure.

167    It should also be noted that no new event occurred and no new data were brought to the attention of the SRB between, on the one hand, the ECB’s communication of its FOLTF assessment in respect of the applicant and, on the other hand, the adoption of the contested decision. Moreover, the SRB did not base Decision SRB/EES/2018/09 on elements other than those already established by the ECB and in respect of which the applicant had already been heard, as far as concerns the elements of that decision which were disputed by the applicant in the present proceedings. Nor did the SRB base that decision on grounds that were different from those set out by the ECB.

168    In those circumstances, it must be held that the applicant’s right to be heard was not infringed.

169    Second, with regard to the right to have access to the file, the Court of Justice has held that the question as to whether there is an infringement of the rights of the defence, including that right, must be examined in relation to the specific circumstances of each case, including the nature of the act at issue, the context of its adoption and the legal rules governing the matter in question (see judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 97 and the case-law cited). In the present case, it is sufficient to note that the applicant has neither alleged nor established that it was unable to consult the documents relevant to the examination carried out by the ECB, in particular in the context of the dialogue between it and that institution in the context of that examination, and the file submitted to the General Court contains no evidence to that effect. Nor has the applicant specified the documents to which it did not have access in the context of the ECB’s examination and to which it ought to have had access in the context of the procedure before the SRB, or how those documents would have enabled it better to defend itself. Moreover, the SRB did not rely on documents other than those on which the examination carried out by the ECB was based.

170    The fifth plea must therefore be rejected.

 The sixth plea in law, alleging that the statement of reasons was inadequate

171    The applicant claims that the statement of reasons set out by the SRB in contested decision SRB/EES/2018/09 was inadequate. The SRB merely cited the text of the relevant provisions without setting out the factual elements on which the decision was based. In addition, the SRB did not analyse all the criteria set out in Article 18(4) of Regulation No 806/2014. The applicant reiterates this plea in its reply (paragraph 98) after having been notified of the full text of contested decision SRB/EES/2018/09.

172    The SRB disputes those arguments.

173    It is apparent from Article 41(2)(c) of the Charter that the right to good administration includes, inter alia, the obligation of the administration to give reasons for its decisions.

174    Furthermore, it should be noted that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Courts of the European Union to exercise their power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements laid down in Article 296 TFEU must be assessed not only with regard to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 8 September 2011, Commission v Netherlands, C‑279/08 P, EU:C:2011:551, paragraph 125 and the case-law cited; judgment of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 87).

175    It follows that a statement of reasons need not be exhaustive, but must be regarded as sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169, and of 3 March 2010, Freistaat Sachsen v Commission, T‑102/07 and T‑120/07, EU:T:2010:62, paragraph 180).

176    In the present case, it should be noted that, contrary to what is claimed by the applicant, in Decision SRB/EES/2018/09, the SRB explained unequivocally and with sufficient precision why it considered, first, that the applicant was failing or was likely to fail and, second, that, having regard to timing and other relevant circumstances, there was no reasonable prospect that any alternative private-sector measures, including measures by an institutional protection scheme, or supervisory action taken in respect of the applicant, would have prevented its failure within a reasonable timeframe. In addition, the SRB set out in that decision, third, the detailed reasons why it considered that the adoption of resolution action was not necessary in the public interest. Since the condition laid down in Article 18(1)(c) of Regulation No 806/2014 was therefore not satisfied, it followed that there was no need to adopt a resolution scheme in respect of the applicant.

177    It follows, in accordance with the case-law cited in paragraphs 174 and 175 above, that Decision SRB/EES/2018/09 discloses in a clear and unequivocal fashion the reasoning followed by the SRB in such a way as to enable the applicant to ascertain the reasons for the measure and to enable the Court to exercise its power of review.

178    Accordingly, the applicant’s argument cannot be accepted, and the sixth plea must be rejected.

 The seventh and thirteenth pleas in law, alleging infringement of the applicant’s right to have its affairs handled impartially

179    In support of its seventh and thirteenth pleas, which should be dealt with together, the applicant submits, in essence, that Article 41 of the Charter was infringed in that its case was not handled by the institutions with complete impartiality. The interference by the US authorities infringed the sovereignty of the Republic of Latvia in the banking sector. Those authorities also encroached on the powers of the ECB and the SRB. However, they accepted the FinCEN draft measure and incorrectly based Decision SRB/EES/2018/09 on it or on the direct consequences of that draft measure.

180    The SRB contests the applicant’s arguments.

181    Article 41(1) of the Charter states, inter alia, that every person has the right to have his or her affairs handled impartially by the institutions and bodies of the Union.

182    In that regard, the need for impartiality, required of institutions and bodies in carrying out their missions, is intended to guarantee equality of treatment, which is at the heart of the European Union. That requirement is intended, inter alia, to avoid a situation where there could be a conflict of interest on the part of officials or agents acting on behalf of those institutions and bodies. Having regard to the fundamental importance of ensuring the independence and probity of EU institutions and bodies as regards both their internal functioning and external reputation, the requirement of impartiality covers all circumstances in which an official or agent who is called upon to decide on an issue must reasonably consider that issue as being of such a nature as to be viewed by third parties as a possible source of impairment of his or her independence in that matter (see judgment of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 53 and the case-law cited).

183    It is incumbent on those institutions, bodies and agencies to comply with the requirement of impartiality, in its two components, which are, on the one hand, subjective impartiality, whereby no member of the institution concerned may show personal bias or prejudice, and, on the other hand, objective impartiality, according to which that institution must offer sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned (see judgment of 25 February 2021, Dalli v Commission, C‑615/19 P, EU:C:2021:133, paragraph 112 and the case-law cited). In that regard, the Court of Justice has held previously that, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled (see, to that effect, judgment of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 37).

184    In the present case, it is common ground that the FinCEN draft measure caused serious damage to the applicant’s reputation and huge withdrawals of deposits. In those circumstances, it was for the ECB, in its capacity as the prudential supervisory authority responsible for the direct supervision of the applicant, and then for the SRB, to intervene in an attempt to maintain the stability of the banking system. The fact that, in the present case, the situation in which the applicant was failing or was likely to fail and, subsequently, the SRB’s decision not to adopt a resolution scheme in respect of the applicant were the indirect consequence of a measure of an authority of a third State does not itself in isolation mean that the SRB and the ECB were biased within the meaning of the case-law cited in paragraphs 182 and 183 above.

185    It must be stated, in that regard, as the SRB correctly pointed out, that the SRB and the ECB followed the procedure referred to in Article 18 of Regulation No 806/2014. As is apparent, inter alia, from the analysis of the third and fourth pleas in paragraphs 87 to 153 above, the FOLTF assessment in respect of the applicant was based on objective facts showing that the applicant was facing an imminent lack of liquidity. That there was no reasonable prospect of any alternative private- or public-sector measures preventing its failure had also been substantiated with objective facts. The applicant has not adduced any concrete evidence capable of establishing that, because of bias, prejudice, a conflict of interests or a lack of independence, the SRB or the ECB have displayed bias against the applicant.

186    In those circumstances, the applicant has not succeeded in showing that there is legitimate doubt as to the fact that the SRB and the ECB were not impartial when they took their decision. The seventh and thirteenth pleas must therefore be rejected.

 The eighth and tenth pleas in law, alleging, respectively, infringement of the principle of proportionality and of Articles 16 and 17 of the Charter

187    By its eighth and tenth pleas, which it is appropriate to examine together, first, the applicant claims that the SRB infringed the principle of proportionality in Decision SRB/EES/2018/09 in that it disregarded the existence of other, less invasive solutions than its liquidation. Second, the SRB infringed the applicant’s right to property and its freedom to conduct a business, enshrined in Articles 16 and 17 of the Charter. According to the applicant, the real reason for Decision SRB/EES/2018/09 was to reduce the number of banks in Latvia in order to combat money laundering. The applicant was de facto expropriated and its freedom to conduct a business was arbitrarily restricted.

188    Those pleas are based on the premiss that, by means of Decision SRB/EES/2018/09, the SRB required the applicant to be liquidated and leave the market. However, it is apparent from paragraphs 75 and 76 above that that decision did not order the applicant to be liquidated. The applicant’s argument, in so far as it is based on a false premiss, must therefore be rejected.

189    The eighth and tenth pleas must therefore be rejected.

 The ninth plea in law, alleging breach of the principles of equal treatment and non-discrimination

190    The applicant claims that the SRB infringed its right to equal treatment, enshrined in Article 20 of the Charter, and the principle of non-discrimination laid down in Article 6(1) of Regulation No 806/2014. In its view, a Latvian credit institution, such as itself, is not treated in the same way as an institution established in a large Member State. In addition, the applicant was arbitrarily the subject of a FinCEN draft measure whereas other Latvian credit institutions were not the subject of such drafts, which was in fact an attempt to reduce the size of the Latvian banking sector. That was allegedly confirmed by statements of the President of the FKTK and the Latvian Minister for Finance, according to which FinCEN’s decision to propose measures against the applicant instead of another Latvian bank was arbitrary. The applicant argues that FinCEN wanted to send a political message because the CMFC, the ECB and the SRB were failing to combat money laundering.

191    The SRB disputes those arguments.

192    It should be recalled that, under Article 6(1) of Regulation No 806/2014, ‘no action, proposal or policy of the [SRB], the Council, the Commission or [an NRA] shall discriminate against entities, deposit holders, investors or other creditors established in the Union on grounds of their nationality or place of business’. That provision is a particular expression of the principle of equal treatment or non-discrimination, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgment of 15 April 2010, Gualtieri v Commission, C‑485/08 P, EU:C:2010:188, paragraph 70).

193    In the present case, it is sufficient to note that the applicant has not established specifically that another bank in a comparable situation would have been treated differently. On the contrary, the applicant’s claims are vague and imprecise, as are the relevance of the statements of the President of the FKTK relied on in support of the present plea. Since the applicant’s arguments have not been sufficiently substantiated, it has failed to show that it was the victim of an infringement of the principle of equal treatment.

194    Accordingly, the ninth plea must be rejected.

 The eleventh plea in law, alleging an infringement of the maxim nemo auditur propriam turpitudinem allegans

195    In the eleventh plea, the applicant submits that the SRB infringed the maxim nemo auditur propriam turpitudinem allegans, according to which no one may take advantage of his or her own misconduct. In particular, it claims that the SRB should have corrected the false statement of the Governor of the Bank of Latvia to the effect that the FinCEN draft measure contained a prohibition on further transactions with the applicant. Without those irregularities, the outcome of the procedure would have been different.

196    The SRB disputes that line of argument.

197    In order to rely on the maxim nemo auditur propriam turpitudinem allegans, it is also necessary to establish misconduct on the part of the SRB; however, such misconduct has not been established in the present case.

198    Moreover, the SRB cannot be held liable for the allegedly false statements made by the President of the FKTK.

199    In addition, as is apparent from paragraph 101 above, the causes of the fact that the applicant was failing or likely to fail are not such as to call into question the assessment carried out by the SRB and the ECB, with the result that they cannot be held liable for the publication of statements made by the President of the FKTK.

200    The applicant therefore has no basis for claiming that the SRB benefited from any misconduct.

201    The eleventh plea must therefore be rejected.

 Twelfth plea in law, alleging misuse of powers by the SRB

202    The applicant claims, in essence, that Decision SRB/EES/2018/09 is the result of a misuse of powers by the SRB. FinCEN allegedly made an example of the applicant in order to highlight gaps in the system for monitoring compliance with the rules enacted to combat money laundering. It is incorrect to start from the premiss that a reduction in the number of credit institutions in Latvia would help reduce the risk of money-laundering transactions. For political reasons, Latvia, as a small country, would consider a reduction in the size of its banking sector to be inevitable. In any event, those objectives cannot be achieved by means of measures adopted by the supervisory or resolution authorities, but solely by means of measures intended to combat money laundering.

203    The SRB disputes the applicant’s arguments.

204    A measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgment of 10 March 2005, Spain v Council, C‑342/03, EU:C:2005:151, paragraph 64).

205    In the light of that case-law, the applicant has failed to adduce evidence that substantiates its line of argument. The factual evidence put forward by the applicant, even if proved, cannot be attributed to the SRB, but at most to other stakeholders such as FinCEN or even Latvian political leaders.

206    It is clear from all of the foregoing that the plea alleging misuse of powers must therefore be rejected.

207    Accordingly, the action must be dismissed in its entirety.

 Costs

208    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it should be ordered to pay the costs in accordance with the form of order sought by the SRB.

209    In accordance with Article 138(1) of the Rules of Procedure, the ECB is to bear its own costs.

On those grounds,

THE GENERAL COURT (Tenth Chamber, Extended Composition)

hereby:

1.      Dismisses the action;

2.      Orders ABLV Bank AS to pay, in addition to its own costs, the costs incurred by the Single Resolution Board (SRB);

3.      Orders the European Central Bank (ECB) to bear its own costs.

Delivered in open court in Luxembourg on 6 July 2022.

*      Language of the case: English.

1      This judgment is published in extract form.

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