No. 106 - Pandectae. Digest of the case-law on the Banking Union
V. Jan-Jun 2024
With this issue of 'Pandectae', the periodic review of European and national case law on the Banking Union covers the first half of 2024.
The first part of this issue reports on several decisions of the General Court of the European Union concerning mandatory contributions to the Single Resolution Fund and, consequently, to national funds. The Court confirmed the legitimacy of the provisions of the BRR Directive and Delegated Regulation (EU) 2015/63, adopted by the Commission for the implementation of that directive. Conversely, the Court declared Council Implementing Regulation (EU) 2015/81, which specifies the methods for calculating the aforementioned contributions, to be unlawful in its entirety due to a violation of the TFEU and the SRM Regulation. Clarifications were provided on the conditions for adjusting individual contributions based on the risk profile of each entity, and on the relationship between the obligation to justify the decisions of the Single Resolution Board setting the amount of the contribution due, the right of defence of the obligated entities, and the protection of the confidentiality of the data of other contributing entities. Finally, the Court confirmed the legitimacy of the ECB's second pillar measures imposing a reduction to CET1 capital equal to the irrevocable payment commitments entered into to fulfil the contribution obligation.
Regarding other matters, the Court of first instance reaffirmed the ECB's discretion in the exercise of its supervisory powers and reiterated the strict conditions for the ECB's non-contractual liability. Conversely, the Court of Justice rehiterated the principles of its case law regarding the appealability of supervisory and resolution decisions and the conditions of the interest to challenge them. It also clarified how to correctly apply Article 14(3) of the DGS Directive regarding the transfer of contributions from one DGS to another jurisdiction following the transfer of the contributor's assets.
The second part of the issue reports on the Appeal Panel of the Single Resolution Board's interesting and complex decisions concerning important procedural aspects of complaints brought before the Panel, as well as the methods of calculating, reducing and increasing MREL, and the exceptions to the right of access to the Board's documents provided for in Regulation (EC) 1049/2001.
Finally, in the absence of rulings from the highest courts of other EU jurisdictions, the third part concludes with a significant ruling by the Consiglio di Stato on the nature of the compulsory administrative liquidation procedure and the acts adopted by the extraordinary commissioners. It also covers various rulings by the Corte di Cassazione, which reiterated its established position on the nature of the sanctions, their prerequisites and the procedure for imposing them in the context of appeals against sanctions imposed by Banca d'Italia. Additionally, it addresses the responsibilities of the top management of banks.
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23 October 2025
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