National Central Bank Liability EU-Proof?

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NATIONAL CENTRAL BANK LIABILITY EU-PROOF? CASE-45/21 BANKA SLOVENIJE VERSUS DRŽAVNI ZBOR REPUBLIKE SLOVENIJ

WITH JUDGEMENT C-45/21 THE CJEU DEEMS NATIONAL CENTRAL BANK LIABILITY REGIMES EU-PROOF: ALLOWING NCBS TO BE LIABLE FOR DAMAGES CAUSED BY THE EXERCISE OF SUPERVISORY POWERS CONFERRED UPON THEM UNDER NATIONAL LAW, SO LONG AS IT (A) DOES NOT BREACH EU LAW (E.G. PROHIBITION OF MONETARY FINANCING, NCB INDEPENDENCE), (B) HINDERS THE EXERCISE OF A CONFERRED POWER WITHIN THE ESCB’S SCOPE (E.G. MONETARY POLICY) AND (C) PROVIDED THAT THE LIABILITY IS ONLY ESTABLISHED IF CLAIMANTS CARRY THE BURDEN OF PROOF (AND SUCCESSFULLY PROVE) AS TO THE BREACH OF DUE DILIGENCE GIVEN THE SPECIFIC CIRCUMSTANCES IN WHICH COMPLEX ISSUES HAVE TO BE ASSESSED. DOOR AMIN LAROSSI

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Liability, the age-old notion according to which a tortfeasor compensates a claimant for the damages inflicted, is among the best-established legal notions in the world. Tortfeasors come in many shapes and sizes (e.g. natural or legal persons, private or public entities etc.) each of which has the boundaries of their liability clearly defined.

But what about National Central Banks? Can a National Central Bank (hereafter NCB) be held liable? And if so, under which circumstances? These are questions that remained relatively obscure until the European Court of Justice’s September 2022 judgement in which it answers preliminary questions asked by the Slovenian Constitutional Court.1 This article seeks to: (a) describe the background of the case at hand, (b) to summarise the CJEU’s judgement and to (c) comment on the wider notion of National Central Bank liability.

A) BACKGROUND: REQUEST FOR PRELIMINARY RULING By an earlier decision2, the Slovenian Constitutional Court had held that national legislation implementing Directive 2001/24 on reorganisation and winding up of credit institutions was compatible with the Slovenian constitution. This national legislation authorised the Slovenian Central Bank to a cancel certain financial instruments when a credit institution is likely to become insolvent and threaten the financial system as a whole. In spite of this, the Constitutional Court had also established a breach of the constitution, namely: that the national legislation in question omitted a procedure that allowed former holders of cancelled financial instruments to bring an action for damages against the tortfeasor – in this case the Slovenian Central Bank. To remediate the constitutional breach and to ensure effective judicial recourse of former holders of cancelled financial instruments, the National Assembly

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The Constitutional Court has directed a total of 8 preliminary questions to the CJEU of the Republic of Slovenia (Slovenian legislator) adopted the ZPSVIKOB.3 Under the ZPSVIKOB the Slovenian NCB could be liable for damages caused by the cancellation of certain financial instruments under two different regimes: (i) Liability regime 1: liability may be established if the cancellation of a financial instrument was not necessary to prevent the failure of the bank concerned and if cancellation was also not necessary to ensure the stability of the financial system, or if the nocreditor-worse-off4 principle has been breached. Furthermore, the conditio sine qua non is that liability by the Slovenian Central Bank only exists if it has not acted with the due diligence required under such a specific crisis situation which requires rapid assessments of complex issues.5 (ii) Liability regime 2: compensation equivalent to 80% of the acquisition price of the cancelled financial instrument with a cap of 20.000 EUR is offered to former holders of the cancelled financial instrument provided: they are a natural person whose annual income is below a certain threshold.6 To cover the damages after liability was established, the ZPSVIKOB prescribed the Central Bank of Slovenia to transfer any profits into special reserves. It was envisaged that the Central Bank would draw from these reserves to cover the damages suffered by claimants. If the special reserves were insufficient for this purpose, up

to 50% of the Central Bank’s general reserves could be used. If these in turn proved insufficient, the Central Bank would be forced to borrow the necessary amount from Slovenian national authorities.

In response to the ZPSVIKOB the Central Bank of Slovenia filed for a constitutionality review before the Slovenian Constitutional Court.7 The review concerned the liability regimes and access to information provisions of the ZPSVIKOB the Slovenian Banking Act.8 The Central Bank of Slovenia argued the incompatibility of these provisions with EU law.

The Constitutional Court has directed a total of 8 preliminary questions to the CJEU. Due to the scope of this article only three questions related to the liability regime will be discussed. The questions asked were: (i) Does the prohibition of monetary financing from art. 123 TFUE jo art. 21.1 of the Protocol of the ESCB and ECB Statute (hereafter the Protocol) preclude the Slovenian Central Bank from, in

BIO Amin Larossi

Master Law & Finance Graduate aan de Universiteit van Amsterdam

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line with the ZPSVIKOB, paying compensation from its own funds to former holders of cancelled financial instruments according to liability regime 1? (ii) Does the prohibition of monetary financing from art. 123 TFUE jo art. 21.1 of the Protocol stand in the way of the compensation of former financial instrument holders who are natural persons according to liability regime 2? (iii) Should the principle of NCB independence of art. 130 TFEU jo 7 of the Protocol prevent am NCB from paying damages according to liability regime 1 to the extent that this may impair the bank’s ability to perform its own tasks effectively?

B) ANSWERS FROM THE CJEU’S LARGE CHAMBER Preliminary question 1: Liability regime 1 In its answer to the first question, the CJEU established that the prohibition of monetary financing does not preclude national legislation according to which a National Central Bank is liable with its own funds for damages suffered by former holders of financial instruments, where the cancellation of the instruments was deemed unnecessary to ensure stability in the financial system or that the no-creditor-worseoff rule has been breached (liability regime 1).9 Art. 123(1) TFEU jo 21.1 the Protocol contains the prohibition of monetary financing; both provisions prohibit an NCB from granting overdraft facilities10 or any other type of credit facility11 to public authorities and bodies from the EU and of Member States as well as from directly purchasing debt instruments from each of them. To answer the first question, the CJEU had to determine whether the liability regime under the ZPSVIKOB for holders of cancelled financial instruments could be deemed as an ‘overdraft facility’ or

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‘any other type of credit facility’.

The CJEU established that the ZPSVIKOB liability regime could not be regarded as an ‘overdraft facility’ since the regime does not require the Central Bank of Slovenia to establish a debit balance in favour of the public sector.12 As to the determination of ‘any other type of credit facility’, the CJEU predominantly answered whether liability regime 1 could be considered a financing of public sector obligations vis-à-vis third parties.13 From the outset, the liability regime does allow the Slovenian NCB to assume obligations in relation to cancelled financial instrument holders which could be incumbent on the public sector.14 In this regard the CJEU gave three reasons as to why liability regime 1 does not breach art. 123 TFEU:15 (i) The CJEU deemed it contradictory if the Treaty authors had, on the one hand, prohibited an NCB from monetary financing under art.123 TFEU, whilst on the other hand, allowing for that same NCB to assume functions other than those mentioned in art. 127(2) TFEU and art. 3.1 of the Protocol (such as cancelling financial instruments) when also affirming that this ancillary function would be performed under the liability and responsibility of a specific NCB according to art. 35.5 of the Protocol.16 (ii) Secondly, if the NCB is held liable for the exercise of one of its functions, then the liability it incurs is a result of its own actions and not the result of a pre-existing obligation vis-à-vis third parties which is incumbent on the public sector.17 (iii) Thirdly, the rationale of art. 123 TFEU and art. 1(1) sub b of Council Regulation No 3603/93 is to encourage Member States to follow a sound budgetary policy by prohibiting monetary financing of public deficits. In this regard,it

cannot be said that liability regime 1, under which the Central Bank of Slovenia could ultimately borrow from public authorities to effectively fulfil obligations vis-à-vis holders of cancelled financial instruments, directly results from measures adopted by said public authorities. Therefore, such financing by an NCB could not be regarded as allowing those public authorities to incur expenditure by avoiding the impetus to comply with a sound budgetary policy.18 The CJEU emphasises that NCB liability as prescribed for the Central Bank of Slovenia under the ZPSVIKOB’s liability regime 1 can only exist if the infringement of the duty to exercise due care by the bank before cancellation of financial instrument is of a serious enough nature. If the infringement of the duty of care is not serious enough, this will result in a breach of the prohibition of monetary financing, as the obstacle to liability would be lowered.19 The CJEU also deems the issue of who the burden of proof lies upon– relating to compliance with the duty of care – undecisive for the question if the liability regime constitutes a breach of the prohibition of monetary financing.

This so long as the NCB can prove that it did not infringe the duty of care in a serious manner.20 As to the ECB’s argument that art. 17(1) of the Charter of Fundamental Rights of the EU imposes on each Member State the obligation to compensate former holders of cancelled financial instruments if the no-creditor-off rule has been breached; the CJEU decides that art. 17(1) does not require the establishment of such liability regimes.21 Preliminary question 2: Liability regime 2 What distinguishes liability regime 1 from regime 2 is that the latter applies only to natural persons and does not formally require the Slovenian Central Bank to breach a duty to act with care

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The liability regime taps into the Slovenian NCB’s own funds/general reserves to fund victims. in its cancellation decision. The CJEU found that the prohibition of monetary financing did preclude liability regime 2.22 The CJEU substantiates her view using several reasons. Primarily by stating that the Slovenian legislation envisaged a social and political objective for liability regime 2: to prevent the effects of the cancellation of financial instruments from forming an excessive burden on natural persons with a modest income.23 This all whilst liability regime 2 is a measure which – as a reorganisation measure – aims to guarantee stability of the financial system. Therefore, a payment obligation from the National Central Bank’s own funds towards these natural persons exists as a result of political choices made by the legislature. This regime must therefore be seen as leading the Slovenian Central Bank to be responsible for financing of public sector obligations under national legislation art.1(1) sub b (ii) Council Regulation No 3603/93 .24 Lastly, the Slovenian Government argues that the prohibition of monetary financing should not apply to this regime because the regime prescribes the National Central Bank to transfer profits made by it to victims instead of to the Republic of Slovenia. This argument does not succeed because the liability regime relies not only on a different allocation of Central Bank profits but also on a levy on the general reserves of the bank or a loan from the Republic of Slovenia.25 Preliminary question 3: National Central Bank Independence

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According to the concept of independence, NCBs are ensured to be in a position to carry out the tasks conferred upon them independently.26 The principle of independence is a general principle and is even divided into different categories of independence: functional independence, institutional independence, personal independence and financial independence.27 When speaking of independence in this context, the CJEU refers to financial independence, according to which the independence of an NCB would be jeopardised if it could not autonomously avail itself of sufficient financial resources to fulfil its mandate (e.g. to perform tasks that fall with the ESCB scope).28 The independence principle is mentioned in several provisions as well as case law. For instance, art. 130 TFEU and art. 7 of the Protocol prohibits NCBs and the ECB from taking instructions from any Member State governments or EU institutions.

Art 282(3) TFEU, on the other hand, is only addressed to the ECB and states that the ECB is to be independent in the management of its finances.

In substantiating its judgement that the liability regime breaches the principle of independence by exposing the Slovenian Central Bank to political pressures, the CJEU finds that the independence principle doesn’t apply in the same way to an NCB exercising a power that is within the ESCB scope (e.g. monetary policy implementation)29 versus an NCB that exercises a power assigned to it by national law – such as liability regime 1 – according to art. 14.4 of the Protocol.30 In principle, the exercise by a national

central bank of a power that does not fall within the ESCB scope does not infringe the independence principle so long as the national provisions do not undermine the NCB’s ability to independently carry out tasks that do fall within the ESCB scope.31 When applying this to the current case, the CJEU finds that the exercise of monetary policy32 - an ESCB scope power – is endangered by the exercise of the liability regime under Slovenian law.

The reasons for this are that:33 i.

The liability regime taps into the Slovenian NCB’s own funds/ general reserves to fund victims.

It is exactly these funds that are detrimental to offsetting losses suffered by the NCB resulting from monetary policy operations under art. 18 of the Protocol and; ii. As the liability regime draws from its own funds, it could lead – in the event where allocation of profits is insufficient – to the Slovenian Central Bank negotiating with/seeking consent of national (political) authorities by taking a loan for funding in order exercise tasks conferred upon it which fall under the ESCB scope and; iii. It is not apparent that the liability regime will ensure the NCB to have sufficient own funds to carry out its tasks within the ESCB scope in an effective manner.

C) CONCLUSION AND COMMENT ON NCB LIABILITY With this judgement the CJEU deems NCB liability regimes EU-proof: allowing NCBs to be liable for damages caused by the exercise of powers conferred upon them under national law, so long as it (a) does not breach EU law (e.g. prohibition of monetary financing, NCB independence), (b) hinders the exercise of a conferred power within the ESCB’s scope (e.g. monetary policy) and (c) provided that the liability is only established if claimants carry the burden of proof as to the breach

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of due diligence (and sufficiently prove this) given the specific circumstances in which complex issues have to be assessed.

The CJEU’s Judgement in C-45/21 is fully in line with the ECB’s Governing Council’s Opinion on financial independence (CON/2021/7) from February 26th 2021.34 The ECB has constantly held that the overall independence of the NCB concerned would be jeopardised if it could not autonomously avail itself of sufficient financial resources/inadequate equity to perform the ESCB-related tasks required of it under the Treaty and the Statute of the ESCB. Although the CJEU only used monetary policy35 as an example of an ESCB-related task which could be endangered as a result of insufficient NCB funds caused by the ZPSVIKOB liability regime, one could think of many more provisions that fall within the ESCB’s scope of which compliance could be endangered. Some examples

are: a call by the ECB to the NCB to contribute to the ECB’s capital and to make further transfers of foreign reserves,36 or a Governing Council decision that offsets an ECB loss against monetary income of NCBs.37 Furthermore, in the case where the national competent authority (hereafter NCA) is also the NCB, and where the former has an independent decision-making body for supervisory matters, such as for Slovenia, financial independence also means that decisions made by the NCA should not endanger the NCBs finances. In this case, the NCB should have the ultimate control over decisions made by the NCA.38 But even if all of this is unable to prevent the NCB’s net equity from becoming less than its statutory capital, the Member State would ultimately be required to inject sufficient capital (at least up to statutory capital) so as to comply with the principle of financial independence

and to consequently ensure the effective exercise of powers conferred upon the NCB by the Treaty and the Statute.39 Where it is self-explanatory that national law (such as NCB liability regimes) has to be aligned with EU law, the procedural restriction of proving a due diligence breach by the NCB is more interesting. It seems that the bar for actually proving a due diligence breach – thus establishing NCB liability – is set quite high. This restriction is evidently emphasised by the CJEU when stating that the due diligence breach has to be assessed under a specific crisis situation which requires rapid assessments of complex issues.

Here CJEU does a great job at balancing the interests at stake: on the one hand, shielding NCBs from vexatious litigation whilst, on the other hand, keeping the door open for claimants to receive compensation to cover damages from wrongful NCB decisions.

CJEU, ECLI:EU:C:2022:670, 13-1-2022 It’s decision of October 19th 2016.

3 Law on the procedure applicable to the judicial and extra-judicial protection of former holders of eligible bank liabilities or Zakon o postopku sodnega in izvensodnega varstva nekdanjih imetnikov kvalificiranih obveznosti bank.

4 No creditor/holder of financial instruments may be worse off (i.e. suffer greater losses) in a cancellation of financial instruments scenario compared to a scenario where the issuer of the financial instruments goes into liquidation.

5 Par 23, C-45/21, ECLI:EU:C:2022:670 6 Par 24, C-45/21, ECLI:EU:C:2022:670 7 Ustavno sodišče.

8 Zakon o bančništvu 9 Par 79, C-45/21, ECLI:EU:C:2022:670 10 Recital 2 and art.1(1) sub a of Council Regulation No 3603/93 defines an ‘overdraft facility’ as: any provision of funds to the public sector resulting or likely to result in a debit balance.

11 Art.1(1) sub b of Council Regulation No 3603/93 defines ‘other type of credit facility’ as: (i) a

claim existing against the public sector existing at January 1st 1994, except for fixed maturity claims acquired before that date (ii) any financing of the public sector’s obligations vis-à-vis third parties (iii) without prejudice to art 123(2) TFEU any transaction with the public sector resulting or likely to result in a claim against that sector 12 Par 64, C-45/21, ECLI:EU:C:2022:670 13 Art.1(1) sub b (ii) of Council Regulation No 3603/93 14 Par 67, C-45/21, ECLI:EU:C:2022:670 15 Par 74, C-45/21, ECLI:EU:C:2022:670 16 Par 69 – 70, C-45/21, ECLI:EU:C:2022:670 17 Par 71, C-45/21, ECLI:EU:C:2022:670 18 Par 73, C-45/21, ECLI:EU:C:2022:670 19 Par 75, C-45/21, ECLI:EU:C:2022:670 20 Par 76, C-45/21, ECLI:EU:C:2022:670 21 Par 77-78, C-45/21, ECLI:EU:C:2022:670 22 Par 90, C-45/21, ECLI:EU:C:2022:670 23 Par 83 – 84, C-45/21, ECLI:EU:C:2022:670 24 Par 85, C-45/21, ECLI:EU:C:2022:670 25 Par 88,89, C-45/21, ECLI:EU:C:2022:670 26 This is a principle which is codified in many

provisions such as art. 282(3) TFEU as well as in jurisprudence: see also the Par 46 Rimsevic judgement of 26 February 2019, Rimšēvičs and ECB v Latvia, C-202/18 and C-238/18, EU:C:2019:139 27 ECB Convergence Report 2022, Chapter 2.2.3 28 ECB Convergence Report 2022, Chapter 2.2.3 29 Art. 127(2) TFEU and 3.1 the Protocol on the ESCB and the ECB Statute 30 Par 95, C-45/21, ECLI:EU:C:2022:670 31 Par 96 – 97, C-45/21, ECLI:EU:C:2022:670 32 Art. 127(2) TFEU and 3.1 the Protocol on the ESCB and the ECB Statute 33 Par 98 – 105, C-45/21, ECLI:EU:C:2022:670 34 ECB Governing Council Opinion (CON/2021/7) 35 Art. 127(1) TFEU 36 Art. 28(1) jo 30.4 the ECB and ESCB Statute 37 Art. 33.2 of the ECB and ESCB Statute 38 ECB Governing Council Opinion (CON/2021/7), p.4 39 ECB Convergence Report 2022, Chapter 2.2.3, fourth paragraph of the section on ‘Financial independence’.

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