EU court annuls 2023 SRB levy for ABN AMRO unit over late 2016-2018 top-ups

The General Court annulled Single Resolution Board decision SRB/ES/2023/23 of 2 May 2023Europa on the 2023 ex ante contributionsEuropa in so far as it concerns ABN AMRO Hypotheken Groep BV (AAHG)Europa, by judgment of 4 November 2026Europa in case T-428/23 brought by ABN AMRO Bank NV and AAHG.

The 2023 decision fixed AAHG's 2023 contributionEuropa and incorporated seven upward adjustments covering each year from 2016 to 2022Europa. The adjustments followed an ex post verification finding AAHG had wrongly omitted a balance-sheet adjustment itemEuropa, described as a synthetic liability, which balances AAHG's accounts where securitised mortgage risks stay with the seller. The group had excluded that item every year since 2015, explaining to De Nederlandsche Bank (DNB) and later to the Board that including it would double count the same mortgage portfolio at group level. After the verification it re-reported liabilities with the item under full reservation, paid the 2023 amount, and challenged the decision.

The Court rejected the argument that the item falls outside liabilitiesEuropa. It held that liabilities in Article 70 of Regulation (EU) No 806/2014 must be read together with total liabilities in Article 3(11) of Delegated Regulation (EU) 2015/63, meaning total liabilities within the meaning of Council Directive 86/635/EEC or the international financial reporting standards referred to in Regulation (EC) No 1606/2002, for reporting duties owed to the BoardEuropa. Because AAHG reports under International Financial Reporting StandardsEuropa, and IFRS 9 paragraph 3.2.15 keeps a liability on the seller's balance sheet where substantially all risks and rewards are retainedEuropa, AAHG had to report the itemEuropa. A narrower economic reading would force the Board to re-examine accounts instead of processing reported data.

The Court also refused exclusion as an intragroup liability under Article 5(1)(a) of Delegated Regulation (EU) 2015/63Europa. That provision, strictly interpreted, covers only liabilities from transactions between two institutions in the same group meeting three cumulative conditionsEuropa. The securitisation counterparty, a special purpose vehicle, is not an institutionEuropa, so the exclusion failsEuropa. The Board has no discretion to create an analogous exclusion to avoid double countingEuropa, as the Court of Justice held in Iccrea Banca (C-414/18).

Legitimate expectations, proportionality, sound administration and property pleas also failedEuropaEuropa. Unknowing Board silence is not a precise assurance, DNB handling does not bind the Board, and sums lawfully due for the Single Resolution Fund are necessary and proportionate.

The actions succeeded on reasonable time and legal certaintyEuropa. Article 17(3) and (4) of Delegated Regulation (EU) 2015/63 permits adaptation of earlier contributions through the following contribution period on restated data, without withdrawing earlier decisions, but that power must be used within a reasonable time measured from each annual decisionEuropa, normally taken by 1 May each yearEuropa. The gaps to the 2023 adapting decision were more than seven years for 2016, more than six for 2017, more than five for 2018, more than four for 2019, more than three for 2020, more than two for 2021 and more than one for 2022. The Court held waiting more than five years unreasonableEuropa and barred adaptation of the 2016 to 2018 contributionsEuropa, while the 2019 to 2022 adjustments were timelyEuropa. It annulled the decision for AAHG's contributionEuropa, leaving the Board to limit it to what is due, and refused to maintain its effects, since the repayable amount is limited against Fund resources and no comparable pending cases were shown. The Board bears its own costs and the applicants' costs.

The legal basis is Article 70 of Regulation (EU) No 806/2014, Articles 3(11), 5(1)(a), 14 and 17 of Delegated Regulation (EU) 2015/63, Article 103 of Directive 2014/59/EU and Article 264 TFEU on annulment.