On 12 December 2024, the Court of Justice of the EU (CJEU) announced its judgment in Case C-118/23 on the preliminary questions submitted by the Provincial Administrative Court (WSA) in Warsaw. These questions were raised in connection with the ongoing judicial review of the administrative decision of the Bank Guarantee Fund (BGF) regarding the resolution of Getin Noble Bank S.A.
The WSA in Warsaw formulated four questions for the CJEU. Two of these questions (Questions 1 and 2) addressed procedural issues concerning the administrative court’s consideration of complaints against decisions of the BGF. Therefore, the position presented today by the CJEU on these procedural questions does not concern or directly affect the BGF.
From the BGF’s perspective, the answers to Questions 3 and 4 were of particular importance, as they pertain to the correctness of the organisational solutions adopted by the BGF. These solutions involve combining different types of functions within a single structure—namely, the functions of the resolution authority, the deposit guarantee scheme, and the interim administrator, as well as the curatorial function under Polish law.
A preliminary analysis of the answers to Questions 3 and 4, announced orally, indicates that the CJEU did not fundamentally question the permissibility, under European law, of combining these various functions within a single entity. However, the CJEU emphasized the necessity of adopting appropriate organisational arrangements to prevent conflicts of interest during the implementation of these functions. This is significant, as it confirms the legality of the systemic and organisational solutions adopted by the BGF, which is crucial for the decision to initiate resolution. Contrary to the doubts raised by the WSA in Warsaw, the CJEU recognised that the coexistence of entities and organisational units within the BGF that perform multiple functions simultaneously is permissible under European law.
Notably, the CJEU stated that in the absence of explicit legal regulations ensuring the independence of individual functions, the adoption and observance of internal organisational measures and other arrangements to prevent conflicts of interest would suffice. From the perspective of the case under review by the WSA in Warsaw, it is particularly important that, according to the CJEU, the lack of publication of information regarding the internal solutions adopted to separate individual functions does not, in itself, invalidate the resolution decision.
Based on the CJEU’s orally communicated answers to the preliminary questions, it can be concluded that the CJEU’s position is generally favorable to the BGF. The court did not question, under European law, the solutions and actions undertaken by the BGF at the stage preceding the issuance of the decision to initiate resolution. The overall assessment of the legality of the decision will, however, be made by the national administrative courts, taking into account today’s position of the CJEU.
It should also be noted that the decision to initiate resolution of Getin Noble Bank S.A. was made solely to achieve the objectives of resolution. These objectives include maintaining the stability of the Polish financial sector and protecting the security of the bank’s clients’ funds.
Link to the CJEU press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/2024-12/cp240197en.pdf