EN Official Journal of the European Union C 245/21

STATE AID — GERMANY

(Articles 107 to 109 of the Treaty on the Functioning of the European Union)

State aid MC 15/09 — LBBW Deka divestment

(Text with EEA relevance)

2011/C 245/10

The Commission notified Germany by letter of 14 January 2011 of its sui generis decision regarding the aid MC 15/09.

TEXT OF LETTER

‘I. PROCEDURE (1) By decision of 15 December 2009, the Commission approved a capital injection of EUR 5 billion and an impaired asset protection of EUR 12,7 billion for a structured portfolio covering EUR 35 billion of assets in favour of Landesbank Baden-Württemberg (hereinafter referred to as “LBBW”) in Case C 17/09 (hereinafter referred to as the “LBBW Decision”) (1). That approval was subject to a number of commitments made by Germany. One of the commitments was that LBBW would sell its stake in Deka Bank Deutsche Girozentrale (hereinafter referred to as “Deka”) by (2) […]. (2) On 13 December 2010, Germany submitted a letter from LBBW which outlined that Deka could not be divested before […]. On 21 December 2010, Germany stated that the trustee (3) and the Finance Ministry of Baden-Württemberg confirmed that LBBW had done all it could to conclude the sales process within that deadline. On 22 December 2010, Germany notified a request for an extension of the divestment until […]. On 5 January 2011, Germany submitted further information. (3) On 22 December 2010, Germany informed the Commission that for reasons of urgency it exceptionally accepts that this Decision is adopted in the English language. II. FACTS (4) The LBBW Decision is based on several commitments. Indent (c) of point 5 of recital 38 of the LBBW Decision contains the commitment of Germany that LBBW would sell its stake in Deka by […]. The Decision does not explicitly allow for a prolongation of that deadline. (5) Deka is a public-law institution (Rechtsfähige Anstalt des öffentlichen Rechts) which pursues — via subsidiaries — the private investment funds business of the German savings banks. One half is owned by the German savings bank association (DSGV) and the remaining half is owned by Landesbanken via a holding company (hereinafter referred to as “holding company”). LBBW's indirect stake in Deka amounts to 14,8 %. The respective owners have a pre-emption right in case one party wants to sell its stake. (6) Initially, the DSGV made an offer for LBBW's stake in Deka which was valid until […]. For the sale to become effective, it would have to be accepted by all other Landesbanken owning a stake of Deka as well as by Deka itself and its general assembly. (7) Germany has informed the Commission that all Landesbanken owning the holding company intend to sell their stake to the DSGV, which would make the latter the sole owner of Deka. A binding decision on those sales is expected within the […], although an additional delay until […] cannot be excluded given the complexity of the decision-making processes involved. According to Germany, if the Landesbanken sell their stakes in the holding company, the agreements required for selling LBBW's stake in Deka would be more readily forthcoming and would smoothen the sales procedure. (8) Germany has further informed the Commission that DSGV has extended its offer for the purchase of the LBBW stake in Deka until […]. (9) Notwithstanding the request for an extension of the deadline for the divestiture of Deka, Germany argues that LBBW did all it could to ensure that the sale occurs. The Trustee overseeing the divestitures of LBBW to which Germany committed itself in the framework of the LBBW Decision confirmed that evaluation. III. ASSESSMENT (10) The present decision concerns the implementation of the restructuring plan approved in the LBBW Decision. Germany requests a delay of the deadline for the sale of Deka by three months, […]. (11) The Commission can extend deadlines for divestitures. Although it is not explicitly provided for in Regulation (EC) No 659/1999, the Commission has discretion to allow an extension as long as it does not impede the enforcement of the LBBW Decision (4). (12) The Commission notes that LBBW has already actively set in motion the sales procedure of Deka by securing an offer from DGSV. In that respect, the Commission takes note of the view of both Germany and the Trustee that LBBW did all it could to advance the sales process. (13) Furthermore, there seems, according to Germany, to be a high likelihood that the Landesbanken owning a stake in the holding company could also sell their stake which would facilitate the overall sales process of the LBBW's Deka stake. (14) Finally, there are convincing arguments that the sales process will succeed within the proposed timeframe, by […] at the very latest. In particular, it seems that […]. The present decision enables LBBW to sell its Deka stake, even if the decision-making processes of the Landesbanken selling their stakes in Deka were to take longer than foreseen. (15) An extension of the sales deadline by three months does not put into question the overall implementation of the restructuring plan approved in the LBBW Decision, which will last until 2014. It will also help LBBW to obtain the necessary agreements of the other Landesbanken to smoothen a sale, whether jointly or individually. Therefore, the extension, which is limited in time, should enable LBBW to sell its Deka stake before […]. It therefore allows LBBW to overcome the abovementioned mainly exogenous difficulties and complete the divestment of Deka as foreseen in the LBBW Decision. The Commission therefore considers that the relatively short requested extension until […] is justified, especially in view of the particularities of the legal structure of Deka. Given the circumstances of the case, such an extension does not qualify as a delay of the timetable initially adopted that would require a corresponding reduction of the aid amount (5). IV. CONCLUSION (16) For the reasons set out above the Commission finds that an extension by three months in case of Deka is necessary to enable, and does not prevent, a proper implementation of LBBW's restructuring plan. V. DECISION The Commission extends the deadline for selling Deka until 31 March 2011.’

(1) OJ L 188, 21.7.2010, p. 1.

(2) Parts of this text have been omitted to ensure that confidential information is not disclosed. Those parts are indicated by three full stops enclosed in square brackets and marked with one asterisk.

(3) Appointed in accordance with the LBBW Decision for monitoring the full and correct implementation of the commitments given as regards divestitures.

(4) Cf. Decision of 21 December 2010 in Case MC 8/09 WestImmo.

(5) Cf. Commission Guidelines on State aid for rescuing and restructuring of firms in difficulty, OJ C 244, 1.10.2004, p. 2, point 52(d).