On 1st June 2022, the General Court rendered its judgments in the five pilot cases on the Banco Popular resolution. These were much awaited because it was the first time that the Court addressed several questions surrounding the establishment of the Single Resolution Mechanism (Regulation No 806/2014) and the powers of the Single Resolution Board (SRB). This blog post focuses on one of these questions: in case of a resolution adopted by a European agency and approved by the European Commission, which EU act can be reviewed by the Court of Justice of the EU (CJEU) under Article 263 TFEU?
Legal framework
The complexity of the question comes from the legal framework. According to Article 18 (1) (7) of Regulation No 806/2014, when a bank is deemed to be in a crisis situation, the SRB may adopt a resolution scheme that is passed on to the Commission for formal approval. If the Commission has no objections, the scheme should be adopted within 24 hours. In some cases, the Commission can request the Council to approve its amendments to the scheme.
This complex decision-making procedure led to doubts over which of these acts could be reviewed by the CJEU under Article 263 TFEU: the adoption of the resolution scheme by the SRB, the endorsement by the Commission, or both decisions together.
Up until the entry into force of the Treaty of Lisbon, there would be no doubts that the only possible answer to this question would have been the Commission decision, as no acts of an agency such as the SRB could be reviewed under the wording of the Treaty. However, after the Treaty of Lisbon’s amendment to Article 263(1) TFEU, the CJEU has jurisdiction to review the legality of acts of bodies, offices or agencies of the Union ‘intended to produce legal effects vis-à-vis third parties’.
Specifically, on the judicial reviewability of the acts adopted under the Single Resolution Mechanism, Article 86 of Regulation No 806/2014 establishes the possibility to initiate proceedings before the Court of Justice against decisions of the SRB, in accordance with Article 263 TFEU. This provision could be interpreted as meaning that the SRB’s adoption of a resolution scheme must create external legal effects and can be challenged under Article 263 TFEU independently since the SRB’s decision intends to produce legal effects. However, this interpretation could be accused of overstretching the letter of the law. Article 86 of the Regulation only literally states that decisions of the SRB can be reviewed if the conditions established in Article 263 TFEU are met, namely if the legal act in question produces legally binding external effects. One could say that the SRB decisions need to be endorsed by the Commission precisely because they do not possess those effects.
The case and the General Court’s judgement
On 7 June 2017, the SRB adopted a decision concerning a resolution scheme in respect of Banco Popular, which was endorsed, on the same day, by the Commission’s Decision (EU) 2017/1246.
Due to the legal uncertainty surrounding the question of which is the reviewable decision, in three of the five pilot cases, the plaintiffs asked the General Court to review and annul both the SRB decision and Commission Decision (EU) 2017/1246 (cases T-510/17, T-523/17, and T-570/17). The remaining two cases are split, in one of them the plaintiff asked the Court to review only the Commission Decision (T-628/17) and, in the other, the request was to review only the SRB decision (T-481/17). As no one questioned that the Commission decision could be reviewed (by itself or jointly with the SRB decision), the matter of the reviewability of the SRB decision was only dealt with in this last case.
In case T-481/17, the Commission, the Parliament, and the Council argued that the request for review was inadmissible on the ground that the SRB resolution decision could not be reviewed because it was not a final act and did not produce legal effects vis-à-vis third parties within the meaning of Article 263 TFEU (paras 107-108). The SRB decision should be considered a mere preparatory act. The Commission, when it endorsed the resolution, gave it binding effect, and became its author, in accordance with the principles relating to the delegation of powers laid down in the Meroni doctrine (9/56).
The General Court disagreed. It started by reaffirming its case-law that all the legal acts of the EU institutions which are intended to produce binding legal effects, irrespectively of their form, must be considered reviewable under Article 263 TFEU (para 114). To determine this, it is necessary to focus on the substance of the act and to assess its effects in the light of objective criteria, such as its content (para 115). Under these criteria, the Court considered that Regulation No 806/2014 expressly conferred decision-making powers on the SRB (Article 16(1)), and that, under Article 23(1), given its substance, the resolution scheme produces binding legal effects (paras 118-120).
The General Court paid particular attention to Article 86(2) of Regulation No 806/2014. In an earlier judgment (ABLV Bank, C‑551/19 P and C‑552/19 P, para 56), the Court of Justice drew attention to the fact that, in that Article, the legislator only established the possibility of judicial review against SRB’s decisions, excluding any other institution or body of the EU. Besides, according to the General Court, Article 86(1) provides that all decisions of the SRB, except for those subject to appeal to the Appeals Committee, may be appealed under Article 263 TFEU. Finally, Article 20(15) provides that the valuation is an integral part of the decision on the application of a resolution tool or on the exercise of a resolution power which may only be subject to an appeal together with the decision of the SRB. None of these provisions established a different regime for the SRB’s decisions which require approval by the Commission.
Because of that, the Court found that to interpret Article 86 in a manner that would only allow the review of the SRB’s resolution decision together with the Commission’s decision would be contrary not only to the provisions of Regulation No 806/2014 but also to the principles of legal certainty and effective judicial protection. The principle of legal certainty requires that EU law enables European citizens to know their rights and obligations unambiguously. The principle of effective judicial protection (Article 47(1) of the Charter) provides that everyone whose rights and freedoms guaranteed by EU law have been infringed has the right to an effective remedy before a court. The effectiveness of the judicial review requires that the person concerned be able to defend his/her rights in the best possible conditions and to decide, in full knowledge of the facts, whether it is appropriate to bring an action against a particular body before the competent court. Neither of the principles would be respected, according to the Court, if a person affected by a SRB’s resolution decision would be subject to a condition for the admissibility of his/her appeal which is not expressly provided for in Article 86.
However, this conclusion could be considered to be in contradiction with the Court of Justice ABLV Bank judgment, regarding an action for annulment of an ECB’s assessment as to whether banks were failing or likely to fail. In that case, the Court qualified the ECB’s assessment as a preparatory act, that was not binding and not capable of affecting the interests of the appellants. The judgment also held that the resolution procedure was a complex administrative procedure involving several authorities, only the outcome of which, resulting from the SRB’s exercise of its power, may be subject to judicial review (ABLV Bank, C‑551/19 P and C‑552/19 P, para 66). Despite this, in the T-481/17 judgment, the General Court concluded that the SRB’s decision, in this case, was different from the ECB’s assessment because Regulation No 806/2014 established that the resolution scheme could produce legally binding effects (para. 136). Somehow contradicting this conclusion, the General Court considers that the legal effects of the SRB’s decision only occur after the Commission’s endorsement.
In fact, according to the Court, the Commission’s endorsement of the SRB’s decision does not remove the autonomous legal effects of the resolution scheme (para 127). It accepted that the Commission’s approval is necessary for the entry into force of the resolution scheme in respect of its discretionary aspects, giving it legal force, thereby avoiding a ‘genuine shift of responsibility’ within the meaning of Meroni (para 130). According to the division of powers between the SRB and the Commission, the latter has the competence to assess the discretionary aspects of the resolution scheme, being able to either endorse or object to it, but it cannot exercise the powers reserved for the SRB, amend the resolution scheme, object to the purely technical aspects, or alter its legal effects. In that sense, if the General Court were to annul the operative part of a resolution, it would follow that the Commission’s decision endorsing it would be deprived of its purpose (para 148).
The Court, thus, concludes that a resolution is an act which may be the subject of an action for annulment before the General Court (para 124, 149).
Comment
In Case T-481/17 Fundación Tatiana Pérez de Guzmán el Bueno and SFL v SRB,the General Court interpret how Regulation No 806/2014 regulates the adoption of a resolution scheme and its’ Article 86 and the framework it establishes for the judicial review of SRB’s decisions.
It concludes that an action may be brought against a resolution scheme adopted by the SRB, without there being any requirement that an action must also be brought against the Commission’s decision endorsing that scheme (para 116-120 and 136). This would mean that the SRB’s decisions could be reviewed on their own. However, paradoxically, the General Court asserts that it is only after the resolution scheme is endorsed by the Commission, that it produces legal effects and constitutes an act against which an independent action for annulment may be brought under Article 263 TFEU (para 130 and 149). This can be seen as a contradiction present in the judgment – that an act that is reviewable because it produces external effects is not able, independently, to actually produce said effects.
This case contributes to the understanding of the conditions for the justiciability of Union acts. The Court of Justice of the EU has developed a substantive approach to assess the reviewability of EU acts in annulment actions under Article 263 TFEU, paying more attention to the substance of the act, rather than its form or label. In this judgment, the General Court scrutinizes the letter of Regulation No 806/2014, concluding that the legislator intended the SRB’s decision to produce external legal effects and to be judicially reviewed. The Court also refers to the test introduced in the IBM case (the act “produced a binding legal effect such as to affect the interests of the applicants, by bringing about a significant change in their legal position”, in T-481/17, para 135), but in a quote drawn from the ABLV Bank case. The present judgment is, however, a development of this test, because the SRB’s decision is not capable, by itself, of producing such an effect. Besides, the General Court attributes crucial importance to the fact that the SRB’s decision comes into force when accessing if it produces external effects (para 117-120 and 136). This is somewhat confusing, because the mere fact that a legal act comes into force does not, necessarily, mean that it can significantly change the legal position of applicants. In this sense, the General Court opens the doors of Article 263 TFEU to review also decisions that are not the final act of a given procedure when they can come into force after a condition is met. This is a positive development in terms of access to justice. But it introduces legal uncertainty as to the situations in which this may happen – and if it suffices that the act in question comes into force.
While interpreting Regulation No 806/2014, the General Court’s interpretation of its Article 86 played a very important role. It considers that, under this provision, all decisions of the SRB (including the approval of a resolution scheme), apart from those subject to appeal to the Appeals Committee, may be appealed on the basis of Article 263 TFEU. According to the Court, this is enough to consider the SRB’s decision to adopt of a resolution scheme as judicially reviewable. However, Article 86 could also be read as saying that decisions of the SRB can be reviewed if the conditions established in Article 263 TFEU are met, namely if the legal act in question produces legally binding external effects. This is a condition which is lawfully established in Article 263 TFEU, in full compliance with the principles of legal certainty and access to justice invoked by the General Court. In this sense, invoking Article 86 of the Regulation does not seem to be enough to justify the decision to accept the SRB’s decision as reviewable. If we read it in this way, Article 86 should be read together with Article 263 TFEU.
The judgment also represents another step in the evolution of the Meroni-Romano doctrine after the Treaty of Lisbon. This evolution, which started with the ESMA short-selling case (C‑270/12), was caused by the amendment introduced in Article 263 TFEU, allowing the judicial review of acts of EU agencies with legally binding external effects. After this amendment, the argument that stated that significant decision-making powers should remain in the hands of the Commission to allow access to judicial review lost its basis. The ESMA short-selling case initiated a new trend regarding the nature and scope of powers that EU agencies can be given, and the possibility for them to be given powers to take legally binding decisions.
The question of whether the division of powers between the Commission and the SRB respects the Meroni doctrine (if there is a delegation of discretionary powers to the SRB) is one of the focal points of the Banco Popular cases (T-510/17, para 204-247; T-523/17, para 570-584; T-570/17, para 110-144; T-628/17, para 121-147). The General Court considers the regime established in Article 18 as lawful under the reasoning that the Commission’s endorsement of the SRB’s decision is essential because without it the resolution scheme does not produce effects and cannot be reviewed by the Court. However, at the same time, in case T-481/17, the General Court also considers that the Commission’s decision does not replace the SRB’s decision. The outcome of the complex administrative procedure of a bank’s resolution, involving several authorities, is the SRB’s exercise of its power, which may be subject to judicial review, with the Commission playing a more limited role than it is usually reserved by EU administrative procedures. To make it ‘a Meroni-compliant delegation’, under Article 18(7) of Regulation No 806/2014, it is necessary for an EU institution, namely the Commission or the Council, to endorse the resolution scheme regarding its discretionary aspects in order for the scheme to produce legal effects (case T-510/17, para 218). However, that endorsement, in case T-481/17 is somehow downgraded to a ‘condition’ for the SRB’s decision to produce effects. This is particularly interesting because Article 18(7) of the Regulation seems to admit the entry into force of the SRB’s decision without an express endorsement of the Commission when it says that ‘the resolution scheme may enter into force only if no objection has been expressed by the Council or by the Commission within 24 hours after its transmission by the Board’. If there is no endorsement of the Commission, would the Court still consider that there was a ‘silent’ or ‘tacit’ agreement (given that the Commission had the opportunity to object, but did not) or does the current re-reading of the Meroni doctrine demand an express decision by the Commission? That is a question left open by case T-481/17.
This judgment opens the door to other analogous acts by EU agencies and bodies being considered open to review by the Court in themselves, which is a positive step in terms of access to justice. However, it reinforces the general trend of ‘agencification’ of EU politics that can be considered detrimental to democratic control of administrative action and a contributor to the EU’s democratic deficit. (The Meroni aspects will be further developed in a blog piece by Merijn Chamon in this series).
The fact that the interpretation of the Court is also grounded in the principles of legal certainty and effective judicial protection is also to be noted. The Court chose to interpret the Regulation in a manner that expands access to judicial review, which is an incredibly positive step and confirms the significant role of Article 47(1) of the Charter as one of the most fertile grounds for the development of EU administrative law.
Posted by Dr Rui Lanceiro (Universidade de Lisboa, Lisbon)
Suggested citation: R Lanceiro, “The possibility of judicial review of the SRB’s resolution decision in Case T-481/17 Fundación Tatiana Pérez de Guzmán el Bueno and SFL v SRB“, REALaw.blog available at https://wp.me/pcQ0x2-sY
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