ORDER OF THE COURT (Tenth Chamber)

16 June 2021 ( *1 )

(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Economic and monetary policy – Regulation (EU) No 1024/2013 – Article 18(1) – Prudential supervision of credit institutions – Specific supervisory tasks assigned to the European Central Bank (ECB) – Imposition of an administrative pecuniary penalty for infringement of prudential requirements – Regulation (EU) No 575/2013 – Article 26(3) – Own funds requirements – Capital instruments – Issuance of ordinary shares – Categorisation as Common Equity Tier 1 items (CET 1) – No prior permission by the competent authority – Negligent infringement)

In Joined Cases C‑456/20 P to C‑458/20 P,

THREE APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 September 2020,

Crédit agricole SA , established in Montrouge (France) (C‑456/20 P),

Crédit agricole Corporate and Investment Bank , established in Montrouge (France) (C‑457/20 P),

CA Consumer Finance , established in Massy (France) (C‑458/20 P),

appellants,

represented by A. Champsaur and A. Delors, avocats,

the other party to the proceedings being:

European Central Bank (ECB) , represented by C. Hernández Saseta, A. Pizzolla and D. Segoin, acting as Agents,

defendant at first instance,

THE COURT (Tenth Chamber),

composed of M. Ilešič, President of the Chamber, E. Regan (Rapporteur), President of the Fifth Chamber, and I. Jarukaitis, Judge,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision by reasoned order in accordance with Article 181 of the Court’s Rules of Procedure,

makes the following

Order

1By their appeals, Crédit agricole SA (C‑456/20 P), Crédit agricole Corporate and Investment Bank (C‑457/20 P) and CA Consumer Finance (C‑458/20 P) seek to set aside the judgments of the General Court of the European Union of 8 July 2020, Crédit agricole v ECB ( T‑576/18 , EU:T:2020:304 , ‘the first judgment under appeal’), of 8 July 2020, Crédit agricole Corporate and Investment Bank v ECB ( T‑577/18 , not published, EU:T:2020:305 , ‘the second judgment under appeal’), and of 8 July 2020, CA Consumer Finance v ECB ( T‑578/18 , not published, EU:T:2020:306 , ‘the third judgment under appeal’) (together, the ‘judgments under appeal’), by which it dismissed their actions seeking the annulment of European Central Bank (ECB) Decisions ECB/SSM/2018‑FRCAG‑75, ECB/SSM/2018‑FRCAG‑76 and ECB/SSM/2018‑FRCAG‑77 of 16 July 2018 (‘the contested decisions’), adopted pursuant to Article 18(1) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks upon the ECB concerning policies relating to the prudential supervision of credit institutions ( OJ 2013 L 287, p. 63 ), and imposing on them an administrative financial penalty of EUR 4300000, EUR 300000 and EUR 200000, respectively, for continued infringement of the capital requirements laid down in Article 26(3) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 ( OJ 2013 L 176, p. 1 and corrigenda OJ 2013 L 208, p. 68 and OJ 2013 L 321, p. 6 ).

Legal context

Regulation No 575/2013

2Article 26 entitled ‘Common Equity Tier 1 items’, as set out in Chapter 2 ‘Common Equity Tier 1 capital’ under Title I ‘Elements of own funds’ of Part Two ‘Own funds’ of Regulation (EU) No 575/2013, in the version prior to the entry into force of Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 ( OJ 2019 L 150, p. 1 ) (‘Regulation No 575/2013’), provided, in paragraph 3:

‘Competent authorities shall evaluate whether issuances of Common Equity Tier 1 instruments meet the criteria set out in Article 28 or, where applicable, Article 29. With respect to issuances after 28 June 2013, institutions shall classify capital instruments as Common Equity Tier 1 instruments only after permission is granted by the competent authorities, which may consult [the European Banking Authority (EBA)].

For capital instruments, with the exception of State aid, that are approved as eligible for categorisation as Common Equity Tier 1 instruments by the competent authority but where, in the opinion of EBA, the compliance with the criteria in Article 28 or, where applicable, Article 29, is materially complex to ascertain, the competent authorities shall explain their reasoning to EBA.

On the basis of information from each competent authority, EBA shall establish, maintain and publish a list of all the forms of capital instruments in each Member State that qualify as Common Equity Tier 1 instruments. EBA shall establish that list and publish it by 1 February 2015 for the first time.

…’

3Article 26(3) of Regulation No 575/2013, as amended by Regulation 2019/876 (‘Regulation No 575/2013 as amended’), applicable from 27 June 2019, provides:

‘Competent authorities shall evaluate whether issuances of capital instruments meet the criteria set out in Article 28 or, where applicable, Article 29. Institutions shall classify issuances of capital instruments as Common Equity Tier 1 instruments only after permission is granted by the competent authorities.

By way of derogation from the first subparagraph, institutions may classify as Common Equity Tier 1 instruments subsequent issuances of a form of Common Equity Tier 1 instruments for which they have already received that permission, provided that both of the following conditions are met:

(a)

the provisions governing those subsequent issuances are substantially the same as the provisions governing those issuances for which the institutions have already received permission;

(b)

institutions have notified those subsequent issuances to the competent authorities sufficiently in advance of their classification as Common Equity Tier 1 instruments.

Competent authorities shall consult EBA before granting permission for new forms of capital instruments to be classified as Common Equity Tier 1 instruments. Competent authorities shall have due regard to EBA’s opinion and, where they decide to deviate from it, shall write to EBA within three months from the date of receipt of EBA’s opinion setting out the rationale for deviating from the relevant opinion. This subparagraph does not apply to the capital instruments referred to in Article 31.

On the basis of information collected from competent authorities, EBA shall establish, maintain and publish a list of all forms of capital instruments in each Member State that qualify as Common Equity Tier 1 instruments. In accordance with Article 35 of Regulation No 1093/2010[/EU of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC ( OJ 2010 L 331, p. 12 )], EBA may collect any information in connection with Common Equity Tier 1 instruments that it considers necessary to establish compliance with the criteria set out in Article 28 or, where applicable, Article 29 of this Regulation and for the purpose of maintaining and updating the list referred to in this subparagraph.

…’

Regulation No 1024/2013

4Chapter III of Regulation No 1024/2013, entitled ‘Powers of the ECB’, lays down, inter alia, Section 2 on ‘Specific supervisory powers’, which includes Articles 14 to 18. According to Article 18 thereof, itself entitled ‘Administrative penalties’:

‘1. For the purpose of carrying out the tasks conferred on it by this Regulation, where credit institutions, financial holding companies, or mixed financial holding companies, intentionally or negligently, breach a requirement under relevant directly applicable acts of Union law in relation to which administrative pecuniary penalties shall be made available to competent authorities under the relevant Union law, the ECB may impose administrative pecuniary penalties of up to twice the amount of the profits gained or losses avoided because of the breach where those can be determined, or up to 10% of the total annual turnover, as defined in relevant Union law, of a legal person in the preceding business year or such other pecuniary penalties as may be provided for in relevant Union law.

…

3. The penalties applied shall be effective, proportionate and dissuasive …

…’

Background to the dispute

5By the contested decisions, the ECB imposed on each of the appellants, who are credit institutions subject to its direct prudential supervision, an administrative pecuniary penalty, pursuant to Article 18(1) of Regulation No 1024/2013, for having committed, at least negligently, an infringement of Article 26(3) of Regulation No 575/2013 by listing capital instruments, resulting from several issuances of ordinary shares (‘the contested issuances’), in their Common Equity Tier 1 instruments (‘CET 1 instruments’), without having been granted prior permission by the competent authority.

6In that regard, the ECB, inter alia, disputed the appellants’ arguments that those ordinary shares appeared on the list published by the EBA, pursuant to the third subparagraph of that Article 26(3) (‘the list published by the EBA’). It asserts, in essence, that the inclusion of an instrument on that list did not exempt a credit institution from obtaining prior permission from the competent authority, pursuant to the first subparagraph of Article 26(3).

The procedure before the General Court and the contested judgment

7By applications lodged at the Registry of the General Court on 25 September 2018, each of the appellants brought an action for annulment of the contested decisions which concerned them.

8In support of their actions, the appellants advanced two pleas at law. The first plea submitted alleging misuse of powers was broken down into three parts. The first part alleged infringement of Article 26(3) of Regulation No 575/2013. The second part alleged infringement of Article 18(1) of Regulation No 1024/2013 and breach of the principle of legal certainty. The third part concerned the proportionality of the administrative pecuniary penalty imposed on them. The second plea an alleged infringement of the right to be heard.

9By the contested judgments, the General Court rejected those pleas to the extent that they sought to challenge the lawfulness of the findings in the contested decisions that the appellants had infringed Article 26(3) of Regulation No 575/2013.

10However, examining, as a preliminary point and of its own motion, compliance with the obligation to state reasons with regard to administrative pecuniary penalties imposed under Article 18(1) of Regulation No 1024/2013, the General Court held, in particular in paragraphs 144 and 156 of the first judgment under appeal, paragraphs 127 and 139 of the second judgment under appeal and paragraphs 130 and 141 of the third judgment under appeal, that those decisions were, to that extent, vitiated by insufficient reasoning, owing, in essence, to their lack of detail as to the methodology used to calculate those penalties. Accordingly, the General Court held that the penalties had to be annulled without there being any need to rule on the appellants’ arguments alleging, inter alia, that those penalties were contrary to the principles of legal certainty and proportionality.

11Taking the view, in paragraph 157 of the first judgment under appeal, paragraph 140 of the second judgment under appeal and paragraph 142 of the third judgment under appeal, that the assessments carried out by the ECB concerning the amounts of the administrative financial penalties were severable from the rest of the contested decisions, the Court therefore, first, annulled, in paragraph 1 of the operative part of those judgments, those contested decisions in so far as they imposed such a penalty on the appellants, and, secondly, dismissed the applications as to the remainder in paragraph 2 of that operative part.

Forms of order of the parties and procedure before the Court

12By their appeals, each of the appellants claims that the Court should:

–

set aside paragraph 2 of the operative part of the judgments under appeal concerning it;

–

uphold its action at first instance; and

–

order the ECB to pay all the costs.

13The ECB contends that the appeals should be dismissed and the appellants ordered to pay the costs.

14By decision of the President of the Court of 30 October 2020, Cases C‑456/20 P to C‑458/20 P were joined for the purposes of the written and oral parts of the procedure and the judgment.

The appeals

15Under Article 181 of the Rules of Procedure of the Court, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may, at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order decide to dismiss that appeal in whole or in part.

16It is appropriate to apply that provision in the present appeals.

The first ground of appeal in Case C‑456/20 P

The first part

– Arguments of the parties

17By the first part of its ground of appeal, Crédit agricole contends that, by finding that it had committed an infringement in respect of the second quarter of 2016 regarding the first two contested issuances on 23 June and 12 November 2015, the General Court erred in law with respect to its interpretation of Article 26(3) of Regulation No 575/2013, in paragraphs 41 to 63 of the first judgment under appeal, according to which a credit institution may classify a capital instrument within its CET 1 instruments where it has been granted prior permission from the competent authority to that effect.

18Crédit agricole was granted permission from the ECB on 26 July 2016 to classify those two contested issuances as CET 1 instruments. A copy of those issuances, which had been classified as such on 30 June 2016 in its quarterly consolidated statement on own funds and capital requirements and in its Pillar 3 disclosure, had been sent to the ECB and they were published on 12 August 2016. It cannot therefore be argued that it committed an infringement.

19The ECB contends that that line of argument is ineffective and, in any event, unfounded.

– Findings of the Court

20It follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as from Article 168(1)(d) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the plea in question will be dismissed as inadmissible (judgment of 2 March 2021, Commission v Italy and Others, C‑425/19 P , EU:C:2021:154 , paragraph 55 and the case-law cited).

21In the present case, it must be observed that, in paragraph 92 of the first judgment under appeal, the General Court held that the three contested issuances had been classification as CET 1 instruments, for the second quarter of 2016, on 30 June 2016 and, therefore, before the ECB permitted such classification on 26 July 2016.

22By the present line argument in support of the first part of its first ground of appeal, Crédit agricole, while expressly stating that that categorisation did indeed take place on 30 June 2016, suggests that the relevant date for establishing whether it infringed the obligation to obtain prior permission laid down in Article 26(3) of Regulation No 575/2013 is not 30 June 2016, but 12 August 2016, when that categorisation was notified to the ECB and published.

23However, it must be observed that Crédit agricole has not given any explanations as to how the General Court erred in law in that regard by taking, in paragraph 92 of the first judgment under appeal, 30 June 2016 to be the date when that that provision was found to have been infringed.

24Consequently, the first part of the first ground of appeal in Case C‑456/20 P must be rejected as manifestly inadmissible.

The second part

– Arguments of the parties

25By the second part of its first ground of appeal, Crédit agricole submits that, in finding that it had committed an infringement with regard to the second quarter of 2016, the General Court erred in law consisting in a breach of the principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union and the case-law of the Court and of the European Court of Human Rights, since it precluded the application of Article 26(3) of Regulation No 575/2013, as amended, in order to establish an infringement in respect of the third contested issuance on 21 June 2016. That new provision amounts to a more lenient criminal law, since it provides, subject to compliance with certain conditions, that subsequent issuances on the same terms as issuances previously permitted are no longer subject to prior permission, but merely to notification.

26In the present case, the third contested issuance meets the conditions laid down in Article 26(3) of Regulation No 575/2013, as amended, since it is governed by the same provisions as the first two contested issuances, for which permission to classify as CET 1 instruments had been granted on 26 July 2016, and the terms of that third issuance had been notified to the ECB on 22 June 2016, almost two months before that issuance was classified as a CET 1 instrument on 12 August 2016.

27In that regard, the General Court wrongly held, in paragraph 72 of the first judgment under appeal, that the principle of the retroactive application of the more lenient criminal law is not relevant to the review of the lawfulness of an act, which was adopted before the legal framework was amended. It is clear from the case-law of the European Court of Human Rights that, where there are differences between the criminal law in force at the time of the commission of an offence and subsequent criminal laws enacted before a final judgment is rendered, the court must apply the law whose provisions are most favourable to the defendant (ECtHR, 18 July 2013, Maktouf and Damjanović v . Bosnia-Herzegovina , ECHR:2013:0718JUD000231208, § 65). Accordingly, in so far as the penalty was not definitive at the stage of the action before the General Court, the latter was required to take that amendment into account, since that amendment had the effect of revoking the unlawful nature of the alleged acts concerning the third contested issuance and thus of preventing the imposition of a penalty.

28The ECB considers that line of argument to be entirely unfounded.

– Findings of the Court

29It must be recalled, as the General Court held, in paragraphs 69 and 70 of the first judgment under appeal, that the principle of retroactivity of the more lenient criminal law constitutes a general principle of Union law (see, to that effect, judgment of 11 March 2008, Jager, C‑420/06 , EU:C:2008:152 , paragraph 59 and the case-law cited), which is now enshrined in the third sentence of Article 49(1) of the Charter (see, to that effect, judgment of 7 August 2018, Clergeau and Others, C‑115/17 , EU:C:2018:651 , paragraph 26 and the case-law cited).

30In the present case, it is common ground that, at the time when Crédit agricole classified the third contested issuance as a CET 1 instrument, it had not been granted the prior permission from the competent authority as required by Article 26(3) of Regulation No 575/2013, applicable at the relevant time, namely specific prior permission to classify the third issuance as such, that permission having been issued subsequently, on 29 August 2016; accordingly, the ECB justly held that that appellant had committed an infringement of that provision.

31It is nevertheless true, as the General Court found, moreover, in paragraph 67 of the first judgment under appeal, that Article 26(3) of Regulation No 575/2013 was amended by the EU legislature during the proceedings at first instance.

32The second subparagraph of Article 26(3) of Regulation No 575/2013, as amended, now provides that, by way of derogation from the rule laid down in the first subparagraph thereof, which lays down the principle that credit institutions must be granted prior permission in order to classify issuances of capital instruments as CET 1 instruments, those institutions may classify as such subsequent issuances of a form of CET 1 instruments for which they have already received that permission, as long as, first, the provisions governing those subsequent issuances are substantially the same as those governing issuance for which they have already received permission and, secondly, those institutions have notified the previous issuances to the competent authorities sufficiently in advance of their classification as CET 1 instruments.

33It must be observed that Crédit agricole, by the line of argument which it sets out in support of the second part of its first ground of appeal, is based on a false premiss, namely that it had already been granted permission to classify the first two contested issuances as CET 1 instruments, in accordance with that new provision, at the time when the third contested issuance was classified as such, which it claims to be on 12 August 2016.

34That premiss, which is inconsistent with Crédit agricole’s own statements in support of the first part of its first ground of appeal, as set out in paragraph 18 of the present order, concerning the date of that last classification, must, for the same reasons as paragraphs 21 to 24 of that order, be dismissed, since the appellant does not give any further explanations, in this part of the first ground of appeal, as to how the General Court erred in law when it held, in paragraph 92 of the first judgment under appeal, that that classification took place, in respect of the second quarter of 2016, on 30 June 2016.

35It is common ground that, on the latter date, Crédit agricole had not received permission to classify the first two contested issuances as CET 1 instruments since that permission was granted to it subsequently, on 26 July 2016.

36Thus, it is clear that Crédit agricole did not, in any event, comply with the obligation to obtain prior permission, provided for both in Article 26(3) of Regulation No 575/2013, applicable at the material time, and in Article 26(3) of Regulation No 575/2013, as amended, which entered into force in the course of the proceedings before the Court, thus irremediably vitiating the categorisation of all of the disputed issuances, irrespective of the applicable provision ratione temporis .

37The second part of the first ground of appeal in Case C‑456/20 P must therefore be rejected as manifestly unfounded and, accordingly, the first ground of appeal must be rejected in its entirety.

The second ground of appeal in Case C‑456/20 P and the first ground of appeal in Cases C‑457/20 P and C‑458/20 P

The first part

– Arguments of the parties

38By the first part of those grounds of appeal, the appellants submit that the General Court erred in law and breached its duty to state reasons, in paragraphs 119, 121 and 122 of the first judgment under appeal, in paragraphs 102, 104 and 105 of the second judgment under appeal and in paragraphs 106, 108 and 109 of the third judgment under appeal, by failing to respond to the plea alleging that the ECB had breached the principle of legal certainty, on the ground that it was necessary for it to first understand the grounds of the contested decisions and, therefore, to examine whether they were sufficiently reasoned. That principle must be observed irrespective of whether the obligation to state reasons is complied with, since that principle requires only the existence of a clear legal basis for the imposition of the penalty. It is not necessary, in that regard, to understand the reasons which led the ECB to adopt that penalty and to set the amount.

39The ECB considers that line of argument to be unfounded.

– Findings of the Court

40It must be recalled, as already stated in paragraphs 10 and 11 of the present order, that the General Court annulled the contested decisions on the ground of insufficient reasoning, in so far as they imposed an administrative pecuniary penalty on each of the appellants.

41In those circumstances, it must be held that the General Court rightly held, in paragraph 156 of the first judgment under appeal, paragraph 139 of the second judgment under appeal, and paragraph 141 of the third judgment under appeal, that it was no longer necessary to examine the other arguments advanced by the appellants, including the argument alleging breach of the principle of legal certainty.

42It is common ground that that argument, as is clear from paragraph 119 of the first judgment under appeal, paragraph 102 of the second judgment under appeal, and paragraph 106 of the third judgment under appeal, was relied on by them solely in order to challenge the lawfulness of the amount of the administrative pecuniary penalties imposed by the ECB in the contested decisions.

43Since the General Court annulled those decisions on the ground of insufficient reasoning in so far as they imposed such penalties, any breach of the principle of legal certainty could no longer have any effect on the extent of the annulment of those decisions by the General Court since the argument alleging breach of that principle had thus become ineffective. It follows that the General Court was no longer required to respond to the allegation that the ECB had breached that principle.

44Consequently, the first part of the second ground of appeal in Case C‑456/20 P and the first ground of appeal in Cases C‑457/20 P and C‑458/20 P must be rejected as manifestly unfounded.

The second part

– Arguments of the parties

45By the second part of those grounds of appeal, the appellants claim that the General Court breached the principle of legal certainty. The General Court acknowledged the ambiguity of Article 26(3) of Regulation No 575/2013 in paragraphs 47, 49, 88, 89, 94 and 95 of the first judgment under appeal and in paragraphs 44, 74, 75, 81 and 72 of the second and third judgments under appeal. That lack of clarity was also raised by the EBA in an opinion published on its website on 23 May 2017 as part of the review of that regulation. The EU legislature thus took the view that an amendment to Article 26(3) had become necessary.

46According to the case-law of the Court, as is apparent, in particular, from the judgment of 12 December 1990, Vandemoortele v Commission ( C‑172/89 , EU:C:1990:457 , paragraph 9 ), a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis. Since Article 26(3) of Regulation No 575/2013 did not constitute a clear and unambiguous legal basis, the ECB could not, consequently, find that there had been a breach of that provision without breaching the principle of legal certainty. The contested decisions must therefore be annulled on that ground.

47The ECB considers that line of argument to be unfounded.

– Findings of the Court

48In so far as the appellants seek, by the arguments advanced in support of the second part of the present grounds of appeal, to complain that the ECB breached the principle of legal certainty by finding, in the decisions at issue, the existence an infringement of Article 26(3) of Regulation No 575/2013, notwithstanding the ambiguous nature of that legal basis, it must be recalled, in accordance with the case-law referred to in paragraph 20 of the present order, that a ground of appeal must, if it is not to be declared inadmissible, seek the annulment not of the decision challenged at first instance, but of the judgment whose annulment is sought, and must include arguments aimed specifically at identifying the error of law vitiating that judgment.

49Thus, according to the settled case-law of the Court, a ground of appeal which merely reproduces the pleas and arguments which have already been submitted to the General Court constitutes, in reality, an application seeking a mere review of the application submitted to the General Court, which falls outside the jurisdiction of the Court in the context of an appeal (see, to that effect, judgment of 22 September 2020, Austria v Commission, C‑594/18 P , EU:C:2020:742 , paragraph 91 and the case-law cited).

50It follows that the present line of argument, in so far as the appellants complain thereby that the ECB breached the principle of legal certainty by finding, in the contested decisions, that there had been an infringement of Article 26(3) of Regulation No 575/2013, is not admissible at the stage of the present appeals.

51As to the remainder, in so far as, in the context of the same part of that ground of appeal, the appellants allege that the General Court itself breached the principle of legal certainty by rejecting their arguments challenging the ECB’s finding of an infringement of Article 26(3) of Regulation No 575/2013, it must be noted that their criticisms are based entirely on the premiss that the General Court had acknowledged that that provision was ambiguous, in the paragraphs of the contested judgments mentioned in paragraph 45 above.

52However, that premiss is incorrect.

53First of all, contrary to the appellants’ submissions, the General Court, in paragraph 47 of the first judgment under appeal and in paragraph 44 of the second and third judgments under appeal, did not make any finding that Article 26(3) of Regulation No 575/2013 was ambiguous, but merely observed in those paragraphs, as an observation prior to the interpretation thereof, that the detailed rules for establishing the approval of the competent authority authorising a credit institution to classify its capital instruments as CET 1 instruments, referred to in that provision, could not be inferred from its wording alone.

54Applying the settled case-law of the Court, set out in paragraph 45 of the first judgment under appeal and paragraph 42 of the second and third judgments under appeal, according to which, when interpreting a provision of Union law, account must be taken not only of its terms but also of its context and the objectives pursued by the regulation of which it forms part, the General Court, on the basis of a contextual and teleological interpretation of Article 26(3) of Regulation No 575/2013 in paragraphs 51 to 60 of the first judgment and in paragraphs 48 to 57 of the second and third judgments under appeal, concluded that that provision required prior permission to be granted by that authority, not in a general manner by category of capital instruments, as the appellants contended, but individually.

55Next, in paragraphs 88 and 89 of the first judgment under appeal and in paragraphs 75 and 76 of the second and third judgments under appeal, the General Court, which, in that part of the contested judgments, did not rule on the lawfulness of the infringement committed by the appellants in Article 26(3) of Regulation No 575/2013, but responded to the arguments advanced by the appellants alleging that there was no negligence, within the meaning of Article 18(1) of Regulation No 1024/2013, expressed its view, not on the wording of Article 26(3), but on the content of a clause in a list published by the EBA.

56Finally, in paragraphs 94 and 95 of the first judgment under appeal and in paragraphs 80 and 81 of the second and third judgments under appeal, the General Court merely found, as it did in its response to the same arguments concerning the negligent nature of the alleged infringement, that certain operators might have experienced difficulties in interpreting the scope of Article 26(3) of Regulation No 575/2013.

57In any event, it must be observed that, in paragraphs 89 to 92 and 95 of the first judgment under appeal, and in paragraphs 75 to 78 and 81 of the second and third judgments under appeal, the General Court set out in detail, which the appellants have overlooked, the reasons why the circumstances set out in paragraphs 55 and 56 of the present order could not call into question the conclusion that a careful reading of Article 26(3) of Regulation No 575/2013 made it possible to resolve any difficulties of interpretation raised by that provision, thereby refuting point by point the arguments by which the appellants sought to establish that they had not acted negligently within the meaning of Article 18(1) of Regulation No 1024/2013.

58It follows that, since the appellants’ line of argument is based on an incorrect reading of the contested judgments, it is wholly unfounded.

59Consequently, the second part of the second ground of appeal in Case C‑456/20 P and the first ground of appeal in Cases C‑457/20 P and C‑458/20 P must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded. Those grounds of appeal must therefore be rejected in their entirety.

The third ground of appeal in Case C‑456/20 P and the second ground of appeal in Cases C‑457/20 P and C‑458/20 P

Arguments of the parties

– The third ground of appeal in case C-456/20 P, the second ground of appeal in case C-457/20 P and the first part of the second ground of appeal in case C-458/20 P

60By those grounds of appeal and arguments, the appellants claim that the General Court infringed Article 18(1) of Regulation No 1024/2013 and breached its duty to state reasons by failing to show that they were negligent. The mere fact that the ECB and the General Court arrived at a different interpretation of Article 26(3) of Regulation No 575/2013 from that advocated by the appellants does not mean that they were negligent. In paragraphs 87 to 89 and 93 to 95 of the first judgment under appeal, and in paragraphs 73 to 75 and 79 to 81 of the second and third judgments under appeal, the General Court acknowledged that a reading of that provision based on the official position expressed by the EBA in a published document had been adopted by certain national authorities and numerous credit institutions. The General Court also acknowledged that a passage from the list published by the EBA supports their interpretation. Moreover, the General Court did not establish how, at the material time, the interpretation adopted by the ECB was foreseeable, even though there was no published position, whether administrative or judicial, supporting that interpretation.

61The ECB considers that line of argument to be unfounded.

– The second part of the second ground of appeal in Case C‑458/20 P

62By the second part of its second ground of appeal, CA Consumer Finance complains that the General Court breached the principle of sound administration by rejecting the argument, in paragraph 85 of the third judgment under appeal, by which it had asserted, in order to establish that there had been no negligence, that the ECB’s requirements were contradictory in nature and that the ECB’s delay in examining the copies of the information sent with a view to permitting the classification of the contested issuances as CET 1 instruments was manifestly unreasonable.

63In that regard, the General Court wrongly held that the appellant could have relied on the ECB’s excessive delay in responding to it if the latter had penalised it for failing to comply with the own funds requirements imposed on the Crédit agricole Group as of 30 June 2016, but that that excessive delay was not relevant, however, in assessing the validity of the penalty imposed for infringement of its obligations under Article 26(3) of Regulation No 575/2013. That appellant submits that the ECB could not impose an own fund compliance requirement and itself delay its implementation taking seven months to permit, on 4 January 2017, the classification of the contested issuances as CET 1 instruments.

64The ECB considers that line of argument to be inadmissible.

Findings of the Court

65It must be observed that, under Article 18(1) of Regulation No 1024/2013, the ECB may, in order to carry out the tasks entrusted to it by that regulation, impose administrative pecuniary penalties where credit institutions commit, intentionally or negligently, an infringement of a requirement arising from relevant directly applicable acts of EU law for which the competent authorities are entitled to impose such penalties under the relevant provisions of that law.

66Thus, it is clear from the very wording of that provision that the existence of ‘negligence’, within the meaning of that provision, on the part of a credit institution is a condition for the imposition of an administrative pecuniary penalty in the event of an infringement of Article 26(3) of Regulation No 575/2013.

67In those circumstances, as stated in paragraphs 10 and 11 of the present order, since, by the judgments under appeal, the General Court annulled the contested decisions, in so far as they imposed an administrative pecuniary penalty on each of the appellants on the ground of insufficient reasoning, it is clear that the grounds on which the General Court, in paragraphs 79 to 96 of the first judgment under appeal, paragraphs 63 to 82 of the second judgment under appeal, and paragraphs 65 to 86 of the third judgment under appeal, dismissed the arguments advanced by those appellants to the effect that there was no negligence, within the meaning of Article 18(1) of Regulation No 1024/2013, are purely for the sake of completeness.

68Complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to that judgment being set aside and must therefore be rejected as ineffective (judgment of 3 September 2020, achtung! v EUIPO, C‑214/19 P , not published, EU:C:2020:632 , paragraph 39 and the case-law cited).

69Consequently, the third ground of appeal in Case C‑456/20 P and the second ground of appeal in Cases C‑457/20 P and C‑458/20 P must be rejected as ineffective.

The fourth ground of appeal in Case C‑456/20 P and the third ground of appeal in Cases C‑457/20 P and C‑458/20 P

The first part

– Arguments of the parties

70By the first part of those grounds of appeal, the appellants submit that the General Court erred in law and breached its duty to state reasons by failing to respond to the plea alleging that the ECB breached the principles of proportionality and equal treatment.

71In particular, the General Court wrongly held, in paragraph 122 of the first judgment under appeal and in paragraph 109 of the second and third judgments under appeal, that, in order to be able to rule on the plea alleging breach of the principle of proportionality, it was necessary for it, as a preliminary point, to examine whether the contested decisions sufficiently stated the reasons for calculating the penalty imposed. The issue of a failure to state reasons for calculating a penalty are unrelated to the assessment of compliance with the principles of proportionality and equal treatment in the principle of the imposition of the penalty itself. Moreover, the appellants point out that, in their reply lodged with the General Court, they expressly contested the very fact that an administrative pecuniary penalty could be imposed on them, regardless of the amount decided, since such a penalty is not essential to attaining the objectives pursued by Regulation No 575/2013 and breached the principle of equal treatment.

72The ECB considers that line of argument to be unfounded.

– Findings of the Court

73It must be observed at the outset that, in so far as, by the arguments set out in support of the first part of the present grounds of appeal, the appellants complain that the General Court did not respond to their arguments alleging breach of the principle of equal treatment, those arguments must be dismissed as being wholly unfounded, since such arguments were not put forward at first instance. In particular, contrary to the appellants’ assertions, such an argument does not appear anywhere in their reply lodged before the General Court.

74For the remainder, the appellants’ arguments must, for the same reasons as those already set out in paragraphs 40 to 44 of the present order, be dismissed, since the General Court annulled the contested decisions because of insufficient reasoning in so far as they imposed an administrative pecuniary penalty on each of them.

75The General Court rightly held, in paragraph 156 of the first judgment, paragraph 139 of the second judgment under appeal and paragraph 141 of the third judgment under appeal, that, taking such an annulment into account, it was no longer necessary to consider the other arguments, such as that alleging breach of the principle of proportionality, advanced by the appellants in order to challenge the amount of that penalty, since those arguments have thus become ineffective.

76In particular, it must be observed, in that regard, that the General Court did not err in law when it held, in paragraphs 135 and 136 of the first judgment under appeal, paragraphs 118 and 119 of the second judgment under appeal, and paragraphs 122 and 123 of the third judgment under appeal, that, to be able to review whether the administrative pecuniary penalties imposed by the decisions at issue complied with the principle of proportionality and the criteria set out in Article 18(3) of Regulation No 1024/2013, which requires, inter alia, that the penalty be proportionate, it was necessary for the statement of reasons for those decisions to show, to the requisite legal standard, the methodology followed by the ECB in calculating those penalties. The General Court therefore rightly held, in paragraphs 121 and 122 of the first judgment under appeal, paragraphs 104 and 105 of the second judgment under appeal and paragraphs 108 and 109 of the third judgment under appeal, that, in order to be in a position to examine the appellants’ criticisms on that point, it had to examine, as a preliminary point, whether those decisions were sufficiently reasoned.

77Consequently, the first part of the fourth ground of appeal in Case C‑456/20 P and the third ground of appeal in Cases C‑457/20 P and C‑458/20 P must be rejected as manifestly unfounded.

The second part

– Arguments of the parties

78By the second part of those grounds of appeal, the appellants complain that the General Court breached the principles of proportionality and equal treatment. By annulling the contested decisions in so far as they had imposed a fine on them of a particular amount and dismissing their claims as to the remainder, including the arguments challenging the very principle of that penalty, the General Court accepted, at least implicitly, that that penalty was well founded in principle and compatible with the principles of proportionality and equal treatment. The General Court thus refused, in particular, to examine the cases of other banks in respect of which the ECB had adopted an interpretation of Article 26(3) of Regulation No 575/2013 which was consistent with that adopted by the appellants.

79The ECB submits that line of argument to be unfounded.

– Findings of the Court

80It must be held that the appellants’ line of argument is based entirely on the premiss that the General Court implicitly but necessarily ruled, in the contested judgments, on whether the administrative pecuniary penalties imposed on them in the contested decisions complied with the principles of proportionality and equal treatment, having recognised that those penalties were justified ‘in principle’.

81It must be borne in mind, first, that the breach of the principle of equal treatment, as noted in paragraph 73 of the present order, was not advanced by the appellants before the General Court and, secondly, the General Court annulled the contested decisions because of insufficient reasoning in so far as they imposed an administrative pecuniary penalty on each of them.

82It follows that, in the contested judgments, the General Court did not rule on either the breach of the principle of equal treatment or the principle of proportionality, as is moreover expressly apparent, as regards the latter principle, from paragraph 156 of the first judgment under appeal, paragraph 139 of the second judgment under appeal and paragraph 141 of the third judgment under appeal.

83Therefore, the second part of the fourth ground of appeal in Case C‑456/20 P and the third ground of appeal in Cases C‑457/20 P and C‑458/20 P must be rejected as manifestly unfounded. Those grounds of appeal must therefore be rejected in their entirety.

84It follows, therefore, from all of the foregoing considerations that the present appeals must be dismissed in their entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

Costs

85Under Article 137 of the Rules of Procedure of the Court, which applies to the procedure on appeal by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings.

86Under Article 138(1) of the Rules of Procedure, also applicable to proceedings on appeal 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 the ECB has requested that the appellants be ordered to pay the costs and since the appellants have been unsuccessful in their grounds of appeal, they should be ordered to pay the costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

1.The appeals are dismissed as partly manifestly inadmissible and partly manifestly unfounded.

2.Crédit agricole SA, Crédit agricole Corporate and Investment Bank and CA Consumer Finance are ordered to pay the costs.

[Signatures]

( *1 ) Language of the case: French.