4.9.1.4 Decisions of national resolution authorities within the SRM

At the time of writing this dissertation, only the decision of the Spanish resolution authority (the FROB) on the implementation of the resolution scheme adopted by the SRB in relation to Banco Popular was available. In this decision it is stated that appeal should be lodged before national courts.3

Haentjens notes that in relation to the decisions taken by national resolution authorities to take measures to implement the resolution scheme adopted by the SRB, it may also be that the appeal against it must be lodged with the EU Courts directly, if the resolution scheme does not leave the national resolution authority much margin of discretion.4

Recital (120) SRMR was explained by the ECJ in the Iccrea Banca case. By decisions adopted between 2015 and 2017, the Bank of Italy sought from Iccrea Banca the payment of ordinary, extraordinary and additional contributions to the Italian national resolution fund. Further, by a communication the Bank of Italy sought from Iccrea Banca, for the year 2016, payment to the SRF of an ex ante contribution determined by a decision of the SRB. Iccrea Banca brought an action against those decisions and communication before the Tribunale amministrativo regionale per il Lazio. This Italian Court decided to request for a preliminary ruling from the ECJ. The ECJ subsequently had to decide on the admissibility of this request, specifically in relation to the calculation of the contributions to the SRF. On 9 July 2019, Advocate-General Campos Sánchez-Bordona delivered an opinion. In this opinion, he considers that in composite administrative procedures in which national authorities and EU authorities are involved, the exercise of the final decision-making power is the crucial factor for determining whether the EU Courts or the national courts must conduct a judicial review. He discusses that ordinary contributions to the SRF are determined through a composite administrative procedure in which the national resolution authorities are involved, but the final decision falls to the SRB. In respect of Recital (120) SRMR, he mentions that this recital refers to the review by national courts of the decisions of national resolution authorities in areas in which the SRMR grants them decision-making power.5 The ECJ considers that where EU law prescribes that an EU body, office or agency is to have an exclusive decision-making power, it falls to the EU Courts, by virtue of their exclusive jurisdiction to review the legality of EU acts on the basis of Article 263 TFEU, to rule on the legality of the final decision adopted by the EU body, office or agency concerned and to examine, in order to ensure effective judicial protection of the persons concerned, any defects vitiating the preparatory acts or the proposals of the national authorities that would be such as to affect the validity of that final decision. The ECJ refers to its judgment in the case Berlusconi v Fininvest,6 in which it has held that, where the EU legislature opts for an administrative procedure under which the national authorities adopt acts that are preparatory to a final decision of an EU institution which produces legal effects and is capable of adversely affecting a person, it seeks to establish between the EU institution and the national authorities a specific cooperation mechanism which is based on the exclusive decision-making power of the EU institution. In order for such a decision-making process to be effective, there must necessarily be a single judicial review, which is conducted, by the EU Courts alone, only once the decision of the EU institution bringing the administrative procedure to an end has been adopted, a decision which is, alone, capable of producing binding legal effects such as to affect the applicant’s interests by bringing about a distinct change in his legal position. Moreover, the ECJ confirms the observation by the Advocate-General in respect of Recital (120) SRMR. The ECJ concludes that the aspects of the question referred which relate specifically to the calculation of the ex ante contributions to the SRF must be held to be inadmissible.7