State Street Bank International (Recovery and resolution of credit institutions - Judgment) [2019] EUECJ C-255/18 (14 November 2019)

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(Reference for a preliminary ruling — Directive 2014/59/EU — Recovery and resolution of credit institutions — National financing arrangement — Resolution authority — National fund — Articles 103 and 104 — Obligation to contribute — Ex ante contributions and extraordinary ex post contributions — Calculation — Late transposition of the directive — Delegated Regulation (EU) 2015/63 — Articles 12 and 14 — Concept of ‘change of status’ — Impact on the obligation to contribute)

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decision of 15 November 2017, received at the Court on 11 April 2018, in the proceedings

composed of J.-C. Bonichot, President of the Chamber, R. Silva de Lapuerta, Vice-President of the Court, M. Safjan, L. Bay Larsen (Rapporteur) and C. Toader, Judges,

having regard to the written procedure and further to the hearing on 10 April 2019,

– the Italian Government, by G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato,

– the European Commission, by V. Di Bucci, K.-P. Wojcik and A. Steiblytė, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 June 2019,

1 This request for a preliminary ruling concerns the interpretation 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) and of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

2 The request has been made in proceedings between State Street Bank International GmbH (‘SSBI’) and Banca d’Italia regarding the payment of contributions to the national resolution fund in Italy.

‘(103)… Notwithstanding the role of central banks in providing liquidity to the financial system even in times of stress, it is important that Member States set up financing arrangements to avoid that the funds needed for such purposes come from the national budgets. It should be the financial industry, as a whole, that finances the stabilisation of the financial system.

(104) As a general rule, Member States should establish their national financing arrangements through funds controlled by resolution authorities to be used for the purposes as laid down in this Directive. …

(105) As a principle, contributions should be collected from the industry prior to and independently of any operation of resolution. When prior funding is insufficient to cover the losses or costs incurred by the use of the financing arrangements, additional contributions should be collected to bear the additional cost or loss.’

‘1. Member States shall establish one or more financing arrangements for the purpose of ensuring the effective application by the resolution authority of the resolution tools and powers.

4. For the purpose of paragraph 3, financing arrangements shall in particular have the power to:

(a) raise ex ante contributions as referred to in Article 103 with a view to reaching the target level specified in Article 102;

(b) raise ex post extraordinary contributions as referred to in Article 104 where the contributions specified in point (a) are insufficient; and

5. Save where permitted under paragraph 6, each Member State shall establish its national financing arrangements through a fund, the use of which may be triggered by its resolution authority for the purposes set out in Article 101(1).’

‘Member States shall ensure that, by 31 December 2024, the available financial means of their financing arrangements reach at least 1% of the amount of covered deposits of all the institutions authorised in their territory. Member States may set target levels in excess of that amount.’

6 Under the title ‘Ex-ante contributions’, Article 103 of Directive 2014/59 provides:

‘1. In order to reach the target level specified in Article 102, Member States shall ensure that contributions are raised at least annually from the institutions authorised in their territory including Union branches.

4. Member States shall ensure that the obligation to pay the contributions specified in this Article is enforceable under national law, and that due contributions are fully paid.

Member States shall set up appropriate regulatory, accounting, reporting and other obligations to ensure that due contributions are fully paid. Member States shall ensure measures for the proper verification of whether the contributions have been paid correctly. …

5. The amounts raised in accordance with this Article shall only be used for the purposes specified in Article 101(1).

7. The Commission shall be empowered to adopt delegated acts in accordance with Article 115 in order to specify the notion of adjusting contributions in proportion to the risk profile of institutions as referred to in paragraph 2 of this Article …

8. The Commission shall be empowered to adopt delegated acts in accordance with Article 115 …

‘1. Where the available financial means are not sufficient to cover the losses, costs or other expenses incurred by the use of the financing arrangements, Member States shall ensure that extraordinary ex-post contributions are raised from the institutions authorised in their territory, in order to cover the additional amounts. Those extraordinary ex-post contributions shall be allocated between institutions in accordance with the rules laid down in Article 103(2).

2. Article 103(4) to (8) shall be applicable to the contributions raised under this Article.

‘Member States shall adopt and publish by 31 December 2014 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those measures.

‘1. The resolution authorities shall determine the annual contributions to be paid by each institution in proportion to its risk profile on the basis of information provided by the institution in accordance with Article 14 and by applying the methodology set out in this Section.

2. The resolution authority shall determine the annual contribution referred to in paragraph 1 on the basis of the annual target level of the resolution financing arrangement by taking into account the target level to be reached by 31 December 2024 in accordance with paragraph 1 of Article 102 of Directive 2014/59/EU and on the basis of the average amount of covered deposits in the previous year, calculated quarterly, of all the institutions authorised in its territory.’

10 Under the heading ‘New supervised institutions or change of status’, Article 12 of that regulation provides:

‘1. Where an institution is a newly supervised institution for only part of a contribution period, the partial contribution shall be determined by applying the methodology set out in Section 3 to the amount of its annual contribution calculated during the subsequent contribution period by reference to the number of full months of the contribution period for which the institution is supervised.

2. A change of status of an institution, including a small institution, during the contribution period shall not have an effect on the annual contribution to be paid in that particular year.’

‘1. Institutions shall provide the resolution authority with the latest approved annual financial statements which were available, at the latest, on the 31 December of the year preceding the contribution period, together with the opinion submitted by the statutory auditor or audit firm, in accordance with Article 32 of Directive 2013/34/EU of the European Parliament and of the Council [of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ 2013 L 182, p. 19)].’

‘1. … By way of derogation from Article 13(1), with regard to the contributions to be paid in 2015, the resolution authorities shall notify each institution of its decision determining the annual contribution to be paid by them at the latest by 30 November 2015.

2. By way of derogation from Article 13(4), and with regard to the contributions to be paid in 2015, the amount due under the decision referred to in Article 13(3) shall be paid by 31 December 2015.

3. By way of derogation from Article 14(4), and with regard to the information to be provided to the resolution authority in 2015, the information referred to in that paragraph shall be provided at the latest by 1 September 2015.

4. By way of derogation from Article 16(1), the deposit guarantee schemes shall provide the resolution authority by 1 September 2015 with the information about the amount of covered deposits as of 31 July 2015.’

13 It is apparent from Article 21 of that regulation that the latter applies from 1 January 2015.

14 Article 78 of Legislative Decree No 180/2015 of 16 November 2015, implementing Directive 2014/59 in national law (GURI No 267 of 16 November 2015), provides:

‘In order to achieve the objectives of the resolution …, one or more resolution funds shall be set up within Banca d’Italia …’

‘1. By 31 December 2024, the total budget allocated to the resolution funds shall be equal to 1% of covered deposits, as at the closing date of the latest approved annual financial statements of the persons required to pay contributions. …

2. In order to reach the level indicated in paragraph 1, contributions shall be calculated and collected annually in accordance with Article 82 and the instalments spread out as evenly as possible, taking into account the pro-cyclical effect that payment of the contributions may have on the financial position of contributing institutions.’

‘Banks having their registered office in Italy and the Italian branches of banks established outside the European Union shall pay ordinary contributions to resolution funds annually, in the amount determined by Banca d’Italia in accordance with measures adopted by the European Commission pursuant to Article 103(7) of Directive 2014/59.’

‘If the budget is not sufficient to support the measures referred to in Article 79(1), banks having their registered office in Italy and the Italian branches of banks established outside the European Union shall pay extraordinary contributions to the resolution funds to cover the additional costs, to the extent determined by Banca d’Italia.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

19 Until 5 July 2015 it operated in Italy through State Street Bank SpA (‘SSB Italy’).

20 From 6 July 2015, following a merger by acquisition, SSBI, SSB Italy’s acquiring company, continued to operate in Italy through a branch.

21 In 2015 and 2016, Banca d’Italia, as the resolution authority, requested from SSBI payment of ex ante contributions (‘ordinary contributions’) and ex post extraordinary contributions (‘extraordinary contributions’) for 2015. More specifically, by notes of 23 and 26 November 2015 and of 1 April and 25 May 2016, Banca d’Italia requested from SSBI the payment of EUR 1 275 606 by way of ordinary contributions and EUR 3 826 819 by way of extraordinary contributions.

22 SSBI brought an action before the referring court for annulment of those acts, contesting both the request for payment of the ordinary contribution and the request for payment of the extraordinary contribution.

23 In support of its action, SSBI relied on a series of arguments, including, in particular, the argument that, when it was ordered to pay those contributions, it was operating in Italy only through a branch and, therefore, could have been subject to the obligation to pay contributions in Germany, not in Italy.

24 In addition, SSBI argued, inter alia, that, in view of the fact that the establishment, on 22 September 2015, of an independent body through which Banca d’Italia acts as resolution authority and the creation, on 18 November 2015, of the Italian resolution fund both post-date that merger by acquisition, SSBI cannot have been obliged to pay any contributions.

25 In SSBI’s view, it also did not have an obligation to pay contributions to the Italian resolution fund under Article 12(2) of Delegated Regulation 2015/63. Furthermore, it considers that the provisions of Article 20(4) of that regulation support its contention that the baseline for the resolution authority should have been the situation of SSBI on 31 July 2015, and not that on 31 December 2014.

26 Accordingly, it argues, Delegated Regulation 2015/63 was not applicable to it for the period from 1 January to 5 July 2015, and, as a result, it is under no obligation to pay contributions.

27 In the alternative, SSBI claimed that it should be subject only to the ordinary contributions corresponding to the period during which SSB Italy operated in Italy.

28 Banca d’Italia contested SSBI’s arguments, confirming that SSBI was under an obligation to pay contributions. It argued, inter alia, that the German resolution authority had not been able to take into account SSB Italy’s merger by acquisition and that, contrary to SSBI’s claim, if it were not obliged to pay contributions in Italy SSBI would avoid its obligation to pay contributions in both Italy and Germany.

29 Banca d’Italia thus confirmed the application, in the present case, of Article 12(2) of Delegated Regulation 2015/63, since all banks with their registered office in Italy and all branches of banks located outside the European Union at that date were liable to pay contributions to the Italian resolution fund.

30 In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Should the “changes of status” that do not have an effect on the contribution requirement under Article 12 of [the delegated regulation] include the merger by acquisition of an institution previously subject to supervision by a national resolution authority with its parent company in another Member State during the contribution period, and does this rule also apply where the merger and the resulting dissolution of the institution took place in 2015, at a time when the Member State had not yet formally established either the national resolution authority or the national resolution fund and the contributions had not yet been calculated?

(2) Is Article 12 of [the delegated regulation], in conjunction with Article 14 of that regulation and Articles 103 and 104 of Directive 2014/59, to be interpreted as meaning that also in the case of the merger of an institution by acquisition with a parent company in another Member State during the contribution period, the institution is required to pay the contribution for that period in full, not on a pro rata basis according to the months when the institution was subject to supervision by the resolution authority of the first Member State, by analogy with the rules laid down for “newly supervised” institutions under Article 12(1) of [the delegated regulation]?

(3) Are Directive 2014/59, [the delegated regulation] and the principles governing the system of banking crisis resolution tools to be interpreted as meaning that the rules laid down for the ordinary contribution, in particular Article 12(2) of [the delegated regulation], also apply, with regard to the timing of the identification of institutions required to contribute and the amount of the contribution, to the extraordinary contribution, bearing in mind the nature of that contribution and the conditions under which it may be imposed?’

31 By the first part of its first question and by its second question, which should be examined together, the referring court asks, in essence, whether the concept of ‘change of status’ within the meaning of Article 12(2) of Delegated Regulation 2015/63 must be interpreted as including a transaction, such as that at issue in the main proceedings, by which an institution, which was previously subject to supervision by a national resolution authority, ceases, during the contribution period, to be under the supervision of that authority following a cross-border merger through acquisition by its parent company and whether, as a result, that transaction is irrelevant as regards the obligation of an institution to pay in full the ordinary contributions due for the contribution year in question.

32 In that regard, it is important to note, first, that, according to settled case-law, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union (judgment of 11 April 2019, Tarola, C‑483/17, EU:C:2019:309, paragraph 36 and the case-law cited).

33 Article 12(2) of Delegated Regulation 2015/63 makes no express reference to the laws of the Member States for the purpose of determining the meaning and scope of the term ‘change of status’. That term must be regarded, for the purposes of application of that delegated regulation, as an autonomous concept of EU law which must be interpreted in a uniform manner throughout the Member States.

34 Second, it should be borne in mind that, according to the settled case-law of the Court, it is necessary, when interpreting a provision of EU law, to take into account the wording of that provision in its context and the objective that it pursues (see, to that effect, judgment of 27 May 2019, PF (Prosecutor General of Lithuania), C‑509/18, EU:C:2019:457, paragraph 28).

35 As regards, in the first place, the literal interpretation of the concept of ‘change of status’ within the meaning of Article 12(2) of Delegated Regulation 2015/63, it must be noted that, as is clear from point 58 of the Advocate General’s Opinion, those words can encompass any kind of change in the legal or factual situation of an institution which may have an effect on the application of Article 12(2) of that delegated regulation.

36 That interpretation of Article 12(2) of Delegated Regulation 2015/63 is confirmed by the wording ‘including a small institution’, which indicates that the change in size of an institution, relevant for the purpose of applying the provisions in favour of small institutions, is only one of the situations covered by that provision.

37 In the second place, with regard to the legislative context of which Article 12(2) of Delegated Regulation 2015/63 forms part, it should be noted that Article 12(1) of that delegated regulation provides that newly supervised institutions supervised for only a part of the contribution period are to pay to a Member State’s resolution fund only pro rata ordinary contributions, calculated on the basis of the number of full months of the contribution period during which the institution was supervised.

38 Accordingly, Article 12(2) of that delegated regulation, which provides that an institution’s change of status does not have an effect on its obligation to pay the annual ordinary contribution due in that particular year, refers, generally, to changes liable to affect an institution, while Article 12(1) of that delegated regulation clarifies the calculation method which applies, by way of exception, to an institution supervised for only part of the contribution period.

39 Article 12(1) of Delegated Regulation 2015/63, in so far as it establishes a derogation from the general rule in Article 12(2), must be strictly interpreted and cannot be given an interpretation going beyond the one scenario expressly envisaged by that regulation (see, by analogy, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 74, and of 6 June 2019, Weil, C‑361/18, EU:C:2019:473, paragraph 43 and the case-law cited).

40 As a result, a transaction which constitutes a change of status within the meaning of Article 12(2) of that delegated regulation does not, in principle, benefit from the method of calculating contributions provided for in Article 12(1) of Delegated Regulation 2015/63.

41 In the third place, as regards the objective pursued by Directive 2014/59 and by Delegated Regulation 2015/63, it is clear from Article 102(1) and Article 103(1) of that directive and from Article 4(2) of that delegated regulation that the annual collection of ordinary contributions from institutions was put into place in order to ensure that, by 31 December 2024, the financial means available for the Member States’ financing arrangements will come to at least 1% of the amount of covered deposits of all the institutions authorised in their territory.

42 In order to achieve that objective, Article 4(1) and Article 14(1) to (3) of Delegated Regulation 2015/63 require the national resolution authority to calculate the contributions due by reference to accounting information regarding the latest approved and certified financial statements available on 31 December of the year preceding the contribution period, together with the opinion submitted by the statutory auditor or audit firm.

43 In that regard, as the Advocate General stated in point 72 of his Opinion, if national resolution authorities were required to take into account changes occurring in the legal and financial position of institutions throughout the financial year in question, it would hardly be possible for them reliably to calculate the ordinary contributions due in the following year and, as a result, seek to attain the objective of reaching, by 31 December 2024, at least 1% of the amount of covered deposits of all the institutions authorised in the territory of a Member State.

44 Therefore, in order to allow the national resolution authorities to calculate contributions and thus attain the objective pursued by Directive 2014/59 and Delegated Regulation 2015/63, the concept of ‘change of status’ provided for in Article 12(2) of the delegated regulation must be understood in a broad sense as including, inter alia, a cross-border merger by acquisition that occurred during the contribution period.

45 That interpretation of Article 12(2) of Delegated Regulation 2015/63 is also confirmed by the objective 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), which Directive 2014/59 and the delegated regulation also seek to prepare for implementation.

46 In that regard, it must be recalled that the creation, in 2015, of the national resolution funds, as provided for by that directive and that delegated regulation, was combined with provision for a Single Resolution Fund, in 2016, common to all Member States forming part of the Banking Union, on the basis of Regulation No 806/2014, seeking progressively to replace the national resolution funds. The intergovernmental agreement clarifying the implementation of that Single Resolution Fund provides, in Article 3(3) and (5) thereof, that the contributions collected under Articles 103 and 104 of Directive 2014/59 before the date of application of that agreement, namely 1 January 2016, must also be transferred to that Single Resolution Fund.

47 Considered from that perspective, the concept of ‘change of status’ cannot be limited to changes to an institution in one Member State to the exclusion of changes involving more than one Member State, such as cross-border mergers by acquisition. For the same reason, the argument that the acquired institution would not be able to benefit from the resolution fund of the Member State to which it paid its ordinary contributions must be rejected.

48 In the light of the foregoing, the answer to the first part of the first question and to the second question is that the concept of ‘change of status’ within the meaning of Article 12(2) of Delegated Regulation 2015/63 must be interpreted as including a transaction, such as that at issue in the main proceedings, by which an institution ceases, in the course of a year, to be under the supervision of the national resolution authority following a cross-border merger through acquisition by its parent company, and as a result that transaction has no impact on the institution’s obligation to pay in full the ordinary contributions due for the contribution year in question.

49 By the second part of its first question the referring court asks, in essence, whether Article 12(2) of Delegated Regulation 2015/63 must be interpreted as applying to a situation in which the cross-border merger by acquisition of an institution located in one Member State, by its parent company established in another Member State, and the resulting dissolution of the acquired institution, took place in 2015, at a time when the first Member State had not yet formally established either the national resolution authority or the national fund and the contributions had not yet been calculated.

50 It is necessary, first, to note that that delegated regulation was binding in its entirety and directly applicable in all Member States from 1 January 2015. As a result, that regulation was in force at the date of the cross-border merger by acquisition of the institution concerned by its parent company.

51 Next, it must be borne in mind that Directive 2014/59, Articles 101 to 104 of which require Member States to set up national resolution funds governed by national authorities and financed by the collection of contributions, provides in its Article 130(1) that the Member States must adopt and publish by 31 December 2014 the laws, regulations and administrative provisions necessary to comply with that directive and must apply those measures from 1 January 2015.

52 It is apparent from the order for reference that the Italian measure transposing that directive into national law came into force only on 16 November 2015, which means that neither the national resolution authority nor the national fund had formally been established in Italy at the date of the cross-border merger by acquisition of the institution concerned by its parent company.

53 However, it should be noted that transitional provisions were included in Article 20 of Delegated Regulation 2015/63 in order to adapt the deadlines for the collection of ordinary contributions for the first contribution year, namely 2015.

54 Article 20(1) of that delegated regulation provides that, by way of derogation from Article 13(1) thereof, with regard to the contributions to be paid for 2015, the national resolution authorities may notify each institution of its decision determining the annual contribution to be paid by it at the latest by 30 November 2015.

55 In that regard, the referring court makes it clear that Banca d’Italia, as the Italian national resolution authority, established the national resolution fund on 18 November 2015 and requested the payment of ordinary and extraordinary contributions from the institutions, including the applicant in the main proceedings, on 23 and 26 November 2015, respectively.

56 It follows that the Italian State transposed Directive 2014/59 into its national law at a date which, in accordance with the transitional provisions of Article 20 of Delegated Regulation 2015/63, allowed Banca d’Italia, as the national resolution authority, to levy ordinary contributions from the institutions for 2015 in accordance with Article 102 and Article 103(1) of that directive.

57 The fact that the institution concerned ceased to exist, following a cross-border merger by acquisition, on the date on which Banca d’Italia requested the payment of contributions is irrelevant in this context, since, as has already been noted in paragraph 42 above, the national resolution authorities must calculate the ordinary contributions to be paid by reference to the accounting information regarding the latest approved and certified financial statements available on 31 December of the year preceding the contribution period.

58 In the light of the foregoing, the answer to the second part of the first question is that Article 12(2) of Delegated Regulation 2015/63 must be interpreted as applying to a situation in which the cross-border merger by acquisition of an institution located in one Member State, by its parent company established in another Member State, and the resulting dissolution of the acquired institution, took place in 2015, at a time when the first Member State had not yet formally established either the national resolution authority or the national fund and the contributions had not yet been calculated.

59 By its third question, the referring court asks, in essence, whether Directive 2014/59 and Delegated Regulation 2015/63 must be interpreted as meaning that an institution located in one Member State, which merged by acquisition with a parent company established in another Member State on a date prior to the establishment of an extraordinary contribution by the national resolution authority of the first Member State, is required to pay that contribution.

60 Banca d’Italia submits that the answer to that question is provided by Delegated Regulation 2015/63, in particular by Article 12(2) thereof. However, it is clear from its very title that that regulation concerns ex ante contributions, that is to say, annual contributions. In addition, Article 12(2) of that regulation mentions only the annual contribution.

61 The answer to the third question can, therefore, be deduced only from an interpretation of Article 104 of Directive 2014/59, which relates, as the heading of that article indicates, to ‘Extraordinary ex-post contributions’. Nevertheless, neither the wording of Article 104 of that directive nor Article 103(2) and (4) to (8) thereof (applicable to ordinary contributions and referred to by Article 104) contain any indication as to the date which must be used as a reference for identifying institutions required to pay the extraordinary contribution or how to calculate its amount. It is necessary, therefore, to interpret Article 104 of that directive by reference to the context in which it occurs and to the objectives pursued by the rules of which it forms part (see, by analogy, judgment of 10 July 2019, Bundesverband der Verbraucherzentralen und Verbraucherverbände, C‑649/17, EU:C:2019:576, paragraph 37 and the case-law cited).

62 In that regard, it must be borne in mind that, in accordance with Article 104(1) of that directive, Member States are required to ensure that extraordinary contributions are raised from the institutions authorised in their territory in those cases where the available financial means are not sufficient to cover the losses, costs or other expenses incurred by the use of the financing arrangements.

63 As the Advocate General has stated in points 86 and 87 of his Opinion, the extraordinary contribution therefore differs from the ordinary contribution in so far as the timing and purpose of its collection are concerned. It is difficult to predict the date at which extraordinary contributions are to be levied since that depends on the date of the resolution operations which give rise to the deficit in the national fund. Extraordinary contributions cannot therefore be planned for in the same way as ordinary contributions, which are calculated with reference to the accounting information regarding the latest approved and certified financial statements available before 31 December of the year preceding the contribution period and are collected in respect of the calendar year in which they are imposed.

64 The date of 31 December of the year preceding the contribution period, provided for in Article 14(1) of Delegated Regulation 2015/63, is also irrelevant as regards the purpose of the extraordinary contribution. That ex post charge seeks, in fact, to obtain a contribution from all institutions subject to supervision by the national resolution authority at the time when the decision is taken to impose that contribution, taking into account, inter alia, their actual financial capacity and their true exposure to risk of financial failure at that time. From that perspective, an institution which, at the time when the decision was taken to impose that contribution, had ceased to be under the supervision of the national authority following a cross-border merger by acquisition with its parent company established in another Member State, cannot be required to pay that contribution.

65 It must be noted that, while the ordinary contribution is to be paid by all institutions which benefit from the cover offered by the national resolution system during at least part of the year, the levying of an extraordinary contribution from an institution which is no longer covered by the national resolution system is warranted only, to a lesser extent, if that institution’s activity poses a risk to the system.

66 In the light of the foregoing, the answer to the third question is that Article 104 of Directive 2014/59 must be interpreted as meaning that an institution located in one Member State, which merged by acquisition with a parent company established in another Member State on a date prior to the establishment of an extraordinary contribution by the first Member State’s national resolution authority, is not required to pay that contribution.

67 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. The concept of ‘change of status’, within the meaning of Article 12(2) of Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements, must be interpreted as including a transaction, such as that at issue in the main proceedings, by which an institution ceases, in the course of a year, to be under the supervision of the national resolution authority following a cross-border merger through acquisition by its parent company, and as a result that transaction has no impact on the institution’s obligation to pay in full the ordinary contributions due for the contribution year in question.

2. Article 12(2) of Delegated Regulation 2015/63 must be interpreted as applying to a situation in which a cross-border merger by acquisition of an institution located in one Member State, by its parent company established in another Member State, and the resulting dissolution of the acquired institution, took place in 2015, at a time when the first Member State had not yet formally established either the national resolution authority or the national fund and the contributions had not yet been calculated.

3. Article 104 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, must be interpreted as meaning that an institution located in one Member State, which merged through acquisition with a parent company established in another Member State on a date prior to the establishment of an extraordinary contribution by the first Member State’s national resolution authority, is not required to pay that contribution.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> State Street Bank International (Recovery and resolution of credit institutions - Judgment) [2019] EUECJ C-255/18 (14 November 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C25518.html Cite as: [2019] EUECJ C-255/18, ECLI:EU:C:2019:967, EU:C:2019:967

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