NRW.Bank v CRU (Banking union - Single resolution mechanism for credit institutions and certain investment firms - Opinion) [2021] EUECJ C-662/19P_O (15 April 2021)

NRW.Bank v CRU (Banking union - Single resolution mechanism for credit institutions and certain investment firms - Opinion) [2021] EUECJ C-662/19P_O (15 April 2021)

The second contested decision was not merely confirmatory but introduced a substantial new factor by altering an element (the IPS indicator) affecting the calculation of the ex ante contribution. As all elements of the calculation form a whole, modification of one element restarts the time limit for challenging the entire act, including unchanged elements. Therefore, NRW. Bank was entitled to challenge both the overall amount and the treatment of its ancillary promotional activities in the second contested decision.

Citation
[2021] EUECJ C-662/19P_O
Parties
Appellant: NRW. Bank; Respondent: Single Resolution Board (SRB); Intervener (supporting Srb): Council of the European Union; Intervener (supporting Srb): European Commission
Jurisdiction
European Union
Judgment Date
15 April 2021
Procedural Posture
Appeal / Opinion of Advocate General Before Court of Justice of the European Union
Outcome
Opinion that the first ground of appeal is well-founded; the second contested decision is not confirmatory and a fresh time limit applies for challenging the whole act.
Legal Topics
Single Resolution Mechanism, Ex Ante Contributions, Admissibility of Actions, Confirmatory Acts, Time Limits for Judicial Review
European Union Law Banking and Finance Law Administrative Law Single Resolution Mechanism Ex Ante Contributions Admissibility of Actions Confirmatory Acts Time Limits for Judicial Review

Case Brief

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Parties

NRW. Bank

Appellant

Single Resolution Board (SRB)

Respondent

Council of the European Union

Intervener (supporting Srb)

European Commission

Intervener (supporting Srb)

Procedural Posture

Appeal / Opinion of Advocate General Before Court of Justice of the European Union

Legal Issues

  1. 1 Whether the second contested decision replaced or merely confirmed the first contested decision for purposes of time limits for bringing an action
  2. 2 Whether the action against the SRB's decisions was admissible or out of time
  3. 3 Whether modification of one element in a composite administrative act restarts the time limit for challenging the whole act

Ratio Decidendi

The second contested decision was not merely confirmatory but introduced a substantial new factor by altering an element (the IPS indicator) affecting the calculation of the ex ante contribution. As all elements of the calculation form a whole, modification of one element restarts the time limit for challenging the entire act, including unchanged elements. Therefore, NRW. Bank was entitled to challenge both the overall amount and the treatment of its ancillary promotional activities in the second contested decision.

Court Disposition

Opinion that the first ground of appeal is well-founded; the second contested decision is not confirmatory and a fresh time limit applies for challenging the whole act.