Article 51 - Field of application
Article 47 - Right to an effective remedy and to a fair trial
Article 21 - Non-discrimination
Article 17 - Right to property
Article 38 - Consumer protection
Article 52 - Scope and interpretation
Key facts of the case:
Reference for a preliminary ruling – Reorganisation and winding up of credit institutions – Directive 2001/24/EC – Articles 3 and 6 – Reorganisation measure taken in respect of a credit institution – Transfer of the obligations and responsibilities of that credit institution to a ‘bridge bank’ prior to the bringing of a legal action seeking payment of a claim held against that credit institution – Transfer back to the same credit institution of certain of those obligations and responsibilities – Law of the Member State where the proceedings concerned were brought (lex concursus) – Effects of a reorganisation measure in other Member States – Mutual recognition – Effects of a failure to comply with the obligation to publish the reorganisation measure – Articles 17, 21, 38 and 47 of the Charter of Fundamental Rights of the European Union – Right to property – Effective judicial protection – Consumer protection – Directive 93/13/EC – Article 6(1) – Unfair terms – Principles of legal certainty and the protection of legitimate expectations – Whether the ‘bridge bank’ can be sued.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
73) By its first question in Cases C‑498/22 to C‑500/22, the referring court asks, in essence, whether Article 3(2) and Article 6 of Directive 2001/24, read in the light of Article 21(2) and the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as precluding, where the publication provided for in Article 6(1) of that directive has not taken place, the recognition, by a court of a Member State other than the home Member State, of the effects of a reorganisation measure adopted in respect of a credit institution before proceedings were brought before that court, which transferred the obligations and responsibilities of that credit institution, in part, to a bridge bank.
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87) Further, when the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection (judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 43).
92) Furthermore, the first paragraph of Article 47 of the Charter does not preclude the imposition of reasonable time limits for lodging an appeal to challenge a decision of a national authority that implements EU law and is likely to infringe one of the rights that private persons derive from that law.
93) Moreover, neither Article 47 of the Charter nor the principle of effectiveness require that an appeal, laid down by the law of the home Member State against a decision by which a national authority adopts a reorganisation measure, must have suspensory effect whereby the effects of that decision are automatically suspended pending the outcome of such an appeal.
94) As regards, next, the principle of non-discrimination on grounds of nationality, guaranteed in Article 21(2) of the Charter, it has neither been claimed nor demonstrated that recognition of the effects of the reorganisation measures in the host Member State, as required under Article 3(2) of Directive 2001/24, is applied differently depending on the nationality of the person subject to the law.
97) In the light of the foregoing, the answer to the first question is that Article 3(2) and Article 6 of Directive 2001/24, read in the light of Article 21(2) and the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as not precluding, where the publication provided for in Article 6(1) of that directive has not taken place, the recognition, by a court of a Member State other than the home Member State, of the effects of a reorganisation measure adopted in respect of a credit institution before proceedings were brought before that court, which transferred the obligations and responsibilities of that credit institution, in part, to a bridge bank.
98) By its second question in Cases C‑498/22 and C‑499/22, the referring court asks, in essence, whether Article 3(2) of Directive 2001/24, read in the light of the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as precluding the recognition, in the host Member State, of the effects of a reorganisation measure taken in the home Member State in respect of a credit institution which partially transferred the obligations and responsibilities of that credit institution to a bridge bank acting under the control of a public authority applying EU law, where the customers of that bridge bank claim that they had a legitimate expectation that that bridge bank, having regard to its subsequent conduct, had also assumed the liabilities corresponding to all of the obligations and responsibilities of that credit institution in relation to those customers.
104) The answer to the second question referred in Cases C‑498/22 and C‑499/22 is therefore that Article 3(2) of Directive 2001/24, read in the light of the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as meaning that individuals cannot rely on the principle of the protection of legitimate expectations against a bridge bank, a body governed by private law with no powers going beyond the ordinary law, set up in the context of reorganisation measures in respect of a credit institution of which those individuals were initially customers, in order to hold that bridge bank liable in respect of pre-contractual and contractual obligations related to contracts previously concluded with that credit institution. The mere fact that that credit institution was temporarily controlled by a public authority, with a view to its privatisation, cannot turn that credit institution, which operates on the competitive market for banking and financial services, into a national administrative authority.
105) By its third questions in Cases C‑498/22 and C‑499/22 and its second question in Case C‑500/22, the referring court asks, in essence, whether Article 17 of the Charter and the principle of legal certainty must be interpreted as precluding the recognition, in the host Member State, of the effects of reorganisation measures adopted in the home Member State under Directive 2001/24, which provide that a bridge bank is to be set up and that the obligation to pay sums payable in connection with pre-contractual or contractual liability is to be retained by the bank that is subject to those measures. Furthermore, the referring court is uncertain, in Cases C‑498/22 and C‑499/22, whether such recognition is compatible with Article 38 of the Charter and, in Case C‑498/22, with Article 6(1) of Directive 93/13.
106) As a preliminary point, it is necessary to reject the line of argument, invoked by Novo Banco in particular, alleging that the third question referred in Case C‑499/22 is inadmissible on the ground that it relates only to the principle set out in Article 38 of the Charter and that no provision of secondary consumer protection law, including Directive 93/13, applies in the present case. First, the recognition, in the host Member State, of the effects of a reorganisation measure in respect of a credit institution, adopted in the home Member State and which transposes the obligation under Article 3(2) of Directive 2001/24, amounts to implementation of EU law within the meaning of Article 51(1) of the Charter. The Charter therefore applies to the dispute in the main proceedings in Case C‑499/22 and it is necessary to provide a substantive answer to that question. Second and in any event, it is clear from the wording itself of that second question that the referring court is asking the Court not only about compliance with the principle set out in Article 38 of the Charter, but also about compliance with the right to property, as guaranteed in Article 17 of the Charter.
107) It is therefore necessary to examine in turn whether Article 17 of the Charter, the principle of legal certainty, Article 38 of the Charter and Article 6(1) of Directive 93/13 must be interpreted as precluding the recognition of the effects of reorganisation measures adopted in the home Member State under Directive 2001/24, which provide for that a bridge bank is to be set up and that the obligation to pay sums payable in connection with pre-contractual or contractual liability is to be retained by the bank that is subject to those
108) Under Article 17(1) of the Charter, everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property, for its part, may be regulated by law in so far as is necessary for the general interest. Moreover, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter, such as the right to property, must be provided for by law and respect the essence of those rights and freedoms, and, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
109) As regards, in the first place, the protection afforded by Article 17(1) of the Charter, according to settled case-law, that protection concerns rights with an asset value creating an established legal position under the legal system concerned, enabling the holder to exercise those rights autonomously and for the holder’s own benefit (see, to that effect, judgment of 1 August 2022, HOLD Alapkezelő, C‑352/20, EU:C:2022:606, paragraph 72 and the case-law cited). The Court has accordingly held that shares and bonds tradeable on capital markets were rights of that nature capable of enjoying the protection guaranteed by Article 17(1) of the Charter (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraphs 40 and 43).
113) As the Advocate General noted in point 111 of his Opinion, the claim at issue in the main proceedings in Case C‑498/22 relates to the obligation in principle of a credit institution, in accordance with the case-law on the interpretation of Article 6(1) of Directive 93/13, to refund interest collected pursuant to a ‘floor’ clause that has been declared unfair, contained in a mortgage loan contract concluded with a consumer, with no power to limit the refund of that interest to the period after the declaration that the term concerned is unfair (see, to that effect, judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 61 and 62, and of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraphs 57 and 58). It follows that the holder of that claim could at least argue that he or she has a ‘legitimate expectation’ of obtaining effective enjoyment of a property right, and can therefore enjoy the protection guaranteed by Article 17(1) of the Charter.
115) As regards, in the second place, whether, in so far as those claims are concerned, the recognition, in the host Member State, of the effects of the reorganisation measures adopted in respect of BES, in accordance with Article 3(2) of Directive 2001/24, gives rise to a deprivation of property for the purposes of the second sentence of Article 17(1) of the Charter or is akin to regulating the use of property within the meaning of the third sentence of Article 17(1) of the Charter, the Court has held that the adoption, by the home Member State, of those reorganisation measures, which provide, inter alia, for the transfer of a credit institution’s assets to a bridge bank, amounts to regulating the use of property within the meaning of that latter provision, in a manner liable to infringe the right to property of the creditors of that credit institution, such as the bondholders, whose debt instruments were not transferred to that bridge bank (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 50).
117) It remains to be determined whether, in accordance with a combined reading of the third sentence of Article 17(1) and Article 52(1) of the Charter, the effects in the host Member State of the reorganisation measures under which the claims at issue in the main proceedings were assigned to the assets of BES Spain are provided for by law, respect the essence of the right to property and are proportionate, on the premiss that compliance with the principle of proportionality laid down by Article 52(1) of the Charter must be ensured in the light of the general interest invoked to justify such reorganisation measures (see, by analogy, judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraphs 88 and 89).
118) In the present case, first of all, the limitations that the reorganisation measures concerned and the recognition of their effects in the host Member State entail for the rights of the creditors of the credit institution flow both from the provisions of Directive 2001/24 and from the national legislation transposing that directive, be that in Portugal by means of the RGICSF, on the basis of which those measures were adopted, or in Spain by means of Law 6/2005, pursuant to which the effects of those measures were recognised in that Member State. Furthermore, while it is true that the claim at issue in the main proceedings in Case C‑500/22, of which BES was divested pursuant to the August 2014 decision, was retransferred to the liabilities of BES, with retroactive effect, pursuant to the 29 December 2015 decisions, it appears that the retroactive amendment of those measures was specifically permitted not only by the relevant provisions of the RGICSF but also in the August 2014 decision, and that, in accordance with the case-law, Directive 2001/24 does not prevent such an amendment by the home Member State (see, to that effect, judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 61 and the case-law cited). It follows that the limitations of the rights of the creditors of the credit institution concerned are provided for by law within the meaning of Article 52(1) of the Charter.
120) Moreover, it must be found that the adoption of those measures and the recognition of their effects in the host Member State, both as laid down in Directive 2001/24, meet objectives of general interest recognised by the European Union, for the purposes of the third sentence of Article 17(1) and Article 52(1) of the Charter. As the Court has acknowledged previously, the adoption of such measures in the banking sector corresponds to an objective of general interest pursued by the European Union, namely the objective of ensuring the stability of the banking system, in particular that of the euro area, and of preventing a systemic risk (see, to that effect, judgments of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 71 and 72, and of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 54 and the case-law cited).
121) Last, as regards whether the limitations that the reorganisation measures and the recognition of their effects in the host Member State entail for the exercise of the rights under Article 17(1) of the Charter go beyond what is necessary to achieve the objectives of general interest at issue in the main proceedings, it must be borne in mind, first, that given the particular economic context, Member States have broad discretion when adopting economic decisions and are in the best position to determine the measures likely to achieve the objective pursued (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 55 and the case-law cited).
125) Admittedly, as noted in paragraph 118 of the present judgment, Directive 2001/24 does not prevent the home Member State from amending the legal rules applicable to reorganisation measures, including with retroactive effect.
126) Nevertheless, that does not necessarily mean that such retroactive reorganisation measures are not capable, in any circumstances, of infringing the right to property as guaranteed in Article 17 of the Charter. In accordance with Article 52(1) of the Charter, and as stated in paragraph 117 of the present judgment, those reorganisation measures must comply with the principle of proportionality, on the premiss that compliance with that principle must be ensured in the light of the general interest invoked to justify them.
133) It is necessary, last, to examine the questions raised by the referring court in Cases C‑498/22 and C‑499/22 regarding whether the reorganisation measures concerned and the recognition of their effects in the host Member State are compatible with consumer protection.
134) In relation, first, to Case C‑499/22, the Court notes that those questions concern exclusively the interpretation of Article 38 of the Charter, which provides that EU policies are to ensure a high level of consumer protection. However, the referring court has not indicated specifically whether the customers of Novo Banco in respect of whom that case arose are consumers by virtue of an act of EU law, from which they could, if applicable, derive rights.
137) In that regard, it must be borne in mind that the requirement to ensure a high level of consumer protection in EU policies, as set out in Article 38 of the Charter, applies especially to the implementation of Directive 93/13 (see, to that effect, judgment of 19 December 2019, Bondora, C‑453/18, EU:C:2019:1118, paragraph 40).
147) Having regard to all the foregoing, the answer to the third questions in Cases C‑498/22 and C‑499/22 and to the second question in Case C‑500/22 is that Article 6(1) of Directive 93/13, read in the light of Article 38 of the Charter, Article 17 of the Charter and of the principle of legal certainty must be interpreted as not precluding, in principle, the recognition, in the host Member State, of the effects of reorganisation measures adopted in the home Member State under Directive 2001/24, which provide for the setting up of a bridge bank and the retention in the liabilities of the bank subject to those measures of the obligation to pay sums payable in connection with pre-contractual or contractual liability.
