Opinion of Advocate General Spielmann delivered on 8 September 2026
Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 8 September 2026 ( 1 )
Case C ‑ 671/24 P
BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG
v
Single Resolution Board
( Appeal – Economic and monetary union – Banking union – Single resolution mechanism for credit institutions and certain investment firms – Single Resolution Fund – Decision on the calculation of the ex ante contributions for the 2023 contribution period – Second paragraph of Article 264 TFEU – Limitation of the temporal effects of an annulment )
Introduction
1. This Opinion concerns the appeal brought by BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG (‘BAWAG’) seeking to have the order of the General Court of the European Union of 6 August 2024, BAWAG PSK v SRB (T‑410/23, ‘the order under appeal’, EU:T:2024:534), set aside.
2. By that order, the General Court annulled Decision SRB/ES/2023/23 of the Single Resolution Board (SRB) of 2 May 2023 on the calculation of the 2023 ex ante contributions to the Single Resolution Fund (SRF) (‘the 2023 SRB decision’), in so far as it concerns BAWAG, and maintained the effects of the decision until the measures necessary to implement that order have been taken by the SRB, which must occur within a reasonable period that cannot exceed six months from the day on which that order became final.
3. The present case calls on the Court of Justice to determine whether the General Court could legitimately suspend the temporal effects of the order under appeal.
Background to the dispute
4. The background to the dispute appears in paragraphs 2 to 4 of the order under appeal and is set out as follows.
5. BAWAG is an Austrian credit institution. By the 2023 SRB decision, the SRB set, having regard to Article 70(2) of Regulation (EU) No 806/2014, ( 2 ) the ex ante contributions to the SRF (‘the ex ante contributions’) for 2023 (‘the 2023 contribution period’) of the institutions covered by Article 2 together with Article 67(4) of that regulation, including BAWAG.
6. By notice of assessment, the competent national resolution authority within the meaning of point 3 of Article 3(1) of that regulation ordered BAWAG to pay the amount of its ex ante contribution for the 2023 contribution period, as set by the SRB.
Procedure before the General Court and the order under appeal
7. By application lodged at the Registry of the General Court on 18 July 2023, BAWAG brought an action seeking to have the General Court, on the basis of the fourth paragraph of Article 263 TFEU, annul the 2023 SRB decision in so far as that decision concerns it. In support of its action, BAWAG put forward eight pleas in law.
8. By the order under appeal, the General Court upheld the action brought by BAWAG, finding, in the light of its decision in the judgment in Dexia v SRB (2022 ex ante contributions) , ( 3 ) that it was manifestly well founded, and annulled the 2023 SRB decision because it infringed Article 70(2) of the SRM Regulation, on the ground that the amount of the ex ante contributions for the 2023 contribution year exceeded 12.5% of the target level. ( 4 )
9. Furthermore, the General Court granted the SRB’s request that the effects of the 2023 decision be maintained, in so far as it concerns BAWAG, until the measures necessary to implement the order under appeal have been taken by the SRB, which must occur within a reasonable period that cannot exceed six months from the day on which that order became final. ( 5 )
Procedure before the Court and forms of order sought
10. By its appeal brought before the Court, BAWAG claims that the Court should:
– set aside, in part, the order under appeal, to the extent that, while annulling the 2023 SRB decision, the effects of that decision were temporarily maintained until the SRB has taken the measures necessary to implement that order, which must occur within a reasonable period that cannot exceed six months from the day on which that order became final;
– rule on the merits of the action and not maintain the effects of the 2023 SRB decision, in so far as it concerns BAWAG;
– in the alternative, maintain the effects of the 2023 SRB decision only in so far as BAWAG would be obliged to pay contributions in accordance with the 12.5% cap provided for in Article 70(2) of the SRM Regulation;
– order the SRB to pay the costs.
11. The SRB, supported in the form of order sought by it by the Council of the European Union and the European Parliament, contends that the Court should:
– dismiss the appeal;
– order BAWAG to pay the costs.
12. The parties were heard in oral argument at the joint hearing in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P, C‑671/24 P and C‑705/24 P of 17 March 2026.
The appeal
Arguments of the parties
13. In support of its appeal, BAWAG relies on a single ground of appeal, alleging that, by temporarily maintaining the effects of the 2023 SRB decision, the General Court infringed the second paragraph of Article 264 TFEU.
14. In that regard, BAWAG argues that, according to the case-law of the Court, ( 6 ) the effects of an act may be maintained pursuant to the second paragraph of Article 264 TFEU only where the immediate effects of its annulment would give rise to serious negative consequences and the lawfulness of the act in question is contested not because of its aim or content, but on grounds of lack of competence or infringement of essential procedural requirements.
15. However, first of all, the alleged infringement of the 12.5% cap provided for in Article 70(2) of the SRM Regulation is a substantive plea directed against the content of the 2023 SRB decision, with the result that maintaining the effects of that decision is not justified having regard to the case-law of the Court.
16. Next, contrary to what the General Court found in paragraphs 42 and 43 of the order under appeal, the reimbursement due to the credit institutions, in the event of annulment of the 2023 SRB decision with immediate effect, does not have the effect of depriving the SRF of the financial means necessary to achieve its objectives, and does not undermine the objectives of financial stability and the creation of an economic and monetary union. Furthermore, the reimbursements are limited to those institutions which brought an action against the 2023 SRB decision.
17. Any decision other than the annulment of the SRB 2023 decision with immediate effect runs counter to the spirit of Article 70(2) of the SRM Regulation, which is intended to protect institutions from an excessive financial burden each year of the initial period, and denies those institutions effective judicial protection.
18. Lastly, since there is no legal basis for the collection of contributions in an amount exceeding the 12.5% cap of the final target level estimated in 2023, it is wrong to take the view, as the General Court did in paragraph 42 of the order under appeal, that the SRB 2023 decision is not vitiated by an error regarding the very obligation to pay the contributions in question. For the same reason, the General Court extended the scope of the maintenance of the effects of the 2023 SRB decision beyond what is allowed by the principle of proportionality. At the very most, only the part of the contributions not exceeding that cap should have been covered by the maintenance of the temporal effects of the 2023 SRB decision.
19. After observing that if, further to its appeal in Case C‑705/24 P, SRB v BAWAG P.S.K. , the judgment of the General Court is set aside, BAWAG’s appeal is rendered redundant, the SRB, supported by the Parliament and the Council, argues that maintaining the temporal effects of the 2023 SRB decision is justified and consistent with the second paragraph of Article 264 TFEU. In that regard, first of all, it observes that the case-law of the Court does not limit the cases in which the effects of an annulled act may be maintained to those in which the annulment is based on grounds of lack of competence or infringement of essential procedural requirements, but also allows such effects to be maintained in the case of serious negative consequences for the persons concerned, which includes annulments on grounds of substantive illegalities.
20. It is, furthermore, incorrect to take the view that the reimbursements triggered by an annulment of the 2023 SRB decision with immediate effect would have no impact on the financial stability of the banking union, the importance of which has, moreover, already been acknowledged by the Court. ( 7 ) Lastly, maintaining the temporal effects of that decision does not call into question either the credit institutions’ obligation to pay the contributions for the 2023 contribution year or the SRB’s obligation to reach the target level at the end of the initial period, and is necessary to enable the SRB to adopt a common position on the 2022 and 2023 contribution cycles.
21. The Parliament also argues that BAWAG, having been successful in its main claims at first instance, is not justified in bringing an appeal against the order under appeal, and therefore its appeal is inadmissible.
Assessment
22. As a preliminary point, I note that, since BAWAG was unsuccessful in part in the form of order sought by it before the General Court, it is allowed to bring an appeal for the order under appeal to be set aside in part because that order temporarily maintains the effects of the SRB 2023 decision, with the result that the Parliament’s arguments alleging that the appeal is inadmissible must be rejected.
23. I recall that, under the second paragraph of Article 264 TFEU, the Court may, if it considers it necessary to do so, state which of the effects of an act which it has declared void are to be considered as definitive. In exercising the power conferred on it by that article, the Courts of the European Union have regard to respect for the principle of legal certainty and other public or private interests. ( 8 )
24. It is true that, in settled case-law, the Court takes the view that, on grounds of legal certainty, the effects of an EU act which has been declared void may be maintained, in particular where the immediate effects of its annulment would give rise to serious negative consequences and the lawfulness of that act is contested not because of its aim or content, but on grounds of lack of competence or infringement of essential procedural requirements, which include, in particular, the ground that an incorrect legal basis was used for the contested act. ( 9 ) However, I note, as Advocate General Tanchev quite rightly stated in his Opinion in Commission v Sweden , ( 10 ) that a close reading of the Court’s case-law reveals that, while that element may have been considered, inter alia in the judgments in Parliament and Commission v Council and in Germany v Parliament and Council , as an obstacle preventing the Court from ordering that the effects of an EU act be maintained, ( 11 ) in other cases, such as the judgments in Spain v Council and in Kadi and Al Barakaat International Foundation v Council and Commission , the Court maintained the effects of an EU act which had been annulled on grounds relating to its substantive legality. ( 12 ) Contrary to what BAWAG claims, that element is not therefore a condition that has to be met in all cases, but is rather dependent on each particular situation. ( 13 )
25. In the present case, I am of the view that ordering the annulment of the 2023 SRB decision without providing for its effects to be maintained until it is replaced by a new act could undermine the implementation of the SRM Regulation, which forms an integral part of the banking union, which contributes to the stability of the euro area. ( 14 )
26. First, neither the actual obligation of the SRB, under Article 69(1) of that regulation, to ensure that the available financial means of the SRF reach at least 1% of the amount of covered deposits of all credit institutions authorised in all of the participating Member States nor the subsequent obligation of the credit institutions concerned, including the appellant, to make payments of the ex ante contributions pursuant to Article 70 of that regulation is called into question.
27. Secondly, I share the General Court’s concerns when it observes, in paragraphs 42 and 43 of the order under appeal, that the immediate reimbursement of the contributions concerned risks depriving the SRF of financial means which may prove necessary to achieve the Fund’s objectives of financial stability and the creation of an economic and monetary union. Not maintaining the effects of the 2023 SRB decision is liable to undermine the integrity of the Single Resolution Mechanism, disrupt the functioning of that mechanism in the event of financial intervention by the SRF and jeopardise the general public interest in the SRF being afforded adequate funding. In my view, that is a sufficient reason to maintain the effect of that decision until its replacement by a new act.
28. In addition, and if the Court decides to dismiss the appeals in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P and C‑705/24 P, as I propose it should, the 2023 SRB decision will be vitiated not only by a substantive illegality affecting the amount of the contributions required, but also by grounds for annulment relating to the illegality of Article 70(7) of the SRM Regulation and of Implementing Regulation (EU) 2015/81. ( 15 ) In each of those cases, the SRB will therefore be unable to adopt new decisions until new regulations have been adopted. Since the adjusted methodology for the calculation of ex ante contributions is concerned by that illegality, it will fall to the SRB to apply, where appropriate, a new method of calculation, with the result that the exact amount of the contributions which may ultimately be required of the institutions concerned, including the appellant, for the 2022 and 2023 contribution years, cannot be determined immediately.
29. In that regard, in Cases C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P and C‑705/24 P, the SRB and the Council, supported by the Parliament and the European Commission, have argued that a period of 30 months was necessary in order to complete three procedures: first, a legislative procedure concerning the statement of reasons for Article 70(7) of the SRM Regulation; second, a procedure for the adoption of a new implementing regulation; and, third, a procedure for the adoption by the SRB of new decisions setting the contributions due.
30. In those circumstances, I propose that the single ground of appeal put forward by BAWAG be dismissed and, so as to avoid any discontinuity in the contribution scheme for the 2022 and 2023 contribution periods, I suggest that the Court maintain the effects of the 2023 SRB decision, in so far as it concerns BAWAG, for a reasonable period that cannot exceed 30 months from the day on which judgment is given in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P, C‑671/24 P and C‑705/24 P, until the entry into force of a new SRB decision setting that institution’s ex ante contribution to the SRF.
Costs
31. It follows from the foregoing considerations that the appeal must be dismissed. Accordingly, the Court is to make a decision as to costs in accordance with Article 184(2) of the Rules of Procedure of the Court of Justice.
32. Under Article 138(1) of those Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since BAWAG has been unsuccessful, it must be ordered to bear its own costs and to pay those of the SRB, in accordance with the form of order sought by the latter.
33. Under Article 140(1) and (3) of those Rules of Procedure, applicable to appeal proceedings pursuant to Article 184(1) thereof, the institutions which have intervened are to bear their own costs. The Parliament and the Council must therefore bear their own costs.
Conclusion
34. In the light of the foregoing considerations, I propose that the Court should:
(1) Dismiss the appeal;
(2) Order the effects of Decision SRB/ES/2023/23 of the Single Resolution Board to be maintained, in so far as that decision concerns BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG, until the entry into force of a new act intended to replace it and no later than 30 months from the delivery of the judgments in Cases C‑454/24 P, C‑529/24 P, C‑536/24 P, C‑537/24 P, C‑585/24 P, C‑671/24 P and C‑705/24 P;
(3) Order BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse to bear its own costs and to pay those incurred by the Single Resolution Board;
(4) Order the European Parliament and the Council of the European Union to bear their own costs.
1 Original language: French.
2 Regulation 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; ‘the SRM Regulation’). ‘SRM’ is the abbreviation for ‘Single Resolution Mechanism’.
3 Judgment of 10 April 2024 (T‑411/22, EU:T:2024:216).
4 Order under appeal (paragraphs 26 to 37).
5 Order under appeal (paragraphs 38 to 45).
6 It refers in that regard to the judgments of 26 November 2014, Parliament and Commission v Council (C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 92); of 1 December 2015, Parliament and Commission v Council (C‑124/13 and C‑125/13, ‘the judgment in Parliament and Commission v Council ’, EU:C:2015:790, paragraph 89); of 7 September 2016, Germany v Parliament and Council (C‑113/14, EU:C:2016:635, paragraph 84); and of 15 July 2021, Commission v Landesbank Baden-Württemberg and SRB (C‑584/20 P and C‑621/20 P, ‘the judgment in Commission v Landesbank Baden-Württemberg and SRB ’, EU:C:2021:601, paragraph 175).
7 The SRB refers inter alia to the judgment in Commission v Landesbank Baden-Württemberg and SRB (paragraph 177).
8 See, inter alia, judgments of 22 December 2008, Régie Networks (C‑333/07, EU:C:2008:764, paragraph 122); of 25 February 2021, Commission v Sweden (C‑389/19 P, EU:C:2021:131, paragraph 72 and the case-law cited); and of 20 April 2023, Parliament v Commission (Authorisation of a substance of very high concern) (C‑144/21, EU:C:2023:302, paragraph 136 and the case-law cited).
9 See, to that effect, judgments of 26 November 2014, Parliament and Commission v Council (C‑103/12 and C‑165/12, EU:C:2014:2400, paragraph 90 and the case-law cited); in Parliament and Commission v Council (paragraph 86); and in Commission v Landesbank Baden-Württemberg and SRB (paragraph 175 and the case-law cited).
10 C‑389/19 P, EU:C:2020:874, point 129.
11 See the judgments in Parliament and Commission v Council (point 89), and of 7 September 2016, Germany v Parliament and Council (C‑113/14, EU:C:2016:635, paragraph 84).
12 See judgments of 7 September 2006, Spain v Council (C‑310/04, EU:C:2006:521, paragraphs 138 to 141, read in conjunction with paragraphs 135 to 137), and of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 373 to 376, read in conjunction with paragraphs 333 to 372).
13 In the judgment of 25 February 2021, Commission v Sweden (C‑389/19 P, EU:C:2021:131), the Court thus ordered that the effects of the decision at issue be maintained, that decision having been annulled on grounds related to the substantive legality of that decision, in view of the risk of serious and irreparable damage to human health and the environment.
14 See, to that effect and by analogy, the judgment in Commission v Landesbank Baden-Württemberg and SRB (paragraph 177).
15 Council Regulation of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1).