Parties

Grounds

Operative part



Parties

In Case T‑457/09,

Westfälisch-Lippischer Sparkassen- und Giroverband, established in Münster (Germany), represented initially by A. Rosenfeld and I. Liebach, and subsequently by A. Rosenfeld and O. Corzilius, lawyers,

applicant,

v

European Commission, represented initially by L. Flynn, K. Gross and B. Martenczuk, and subsequently by L. Flynn, B. Martenczuk and T. Maxian Rusche, acting as Agents,

defendant,

ACTION for the annulment of Commission Decision 2009/971/EC of 12 May 2009 on State aid C 43/08 (ex N 390/08) which Germany proposes to grant towards the restructuring of WestLB AG (OJ 2009 L 345, p. 1),

THE GENERAL COURT (First Chamber, Extended Composition),

composed of H. Kanninen (Rapporteur), President, I. Pelikánová, E. Buttigieg, A.M. Collins and S. Gervasoni, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 6 December 2013,

gives the following

Judgment

Grounds

Facts

1. Beneficiary

1. At the material time, WestLB AG was a commercial bank operating internationally, based in the German federated State (Land) of North Rhine Westphalia (‘the Land of North Rhine Westphalia’). With total assets of EUR 286.5 billion (at 31 December 2007), it was a major German financial services provider. As the central institution for the savings banks in the Land of North Rhine Westphalia and the Land of Brandenburg (Germany), it acted as their link to the global financial markets. WestLB offered the full range of products and services of a universal bank.

2. The owners of WestLB (‘the owners’) were, at the material time, first, the applicant, namely Westfälisch-Lippischer Sparkassen- und Giroverband, secondly, Rheinischer Sparkassen- und Giroverband, thirdly, the Land of North Rhine Westphalia, fourthly, Landschaftsverband Westfalen-Lippe and, fifthly, Landschaftsverband Rheinland.

3. The applicant and Rheinischer Sparkassen- und Giroverband are two associations of savings banks in, respectively, the Westphalia-Lippe region (Germany) and the Rhineland region (Germany) and, at the material time, each held 25.03% of the capital of WestLB. As regards the Land of North Rhine Westphalia, it held 37.4% of that capital. Finally, Landschaftsverband Westfalen-Lippe and Landschaftsverband Rheinland are two associations of local authorities in, respectively the Westphalia-Lippe region and the Rhineland region and each held 6.09% of that capital.

2. WestLB’s financial difficulties and notification of the bad bank

4. Since mid-2007, a structured investment portfolio of WestLB with a nominal value of EUR 23 Billion, which included subprime real estate loans (‘the EUR 23 billion portfolio’), had been falling in value. Unable to refinance that portfolio on the market, WestLB had to consolidate it on its own balance sheet, thereby recording substantial losses.

5. On 20 January 2008, at an emergency meeting, the owners decided, first, to inject up to EUR 2 billion into WestLB in order to offset the expected losses for 2007 and temporary write-downs and, secondly, that WestLB would put in place restructuring plans and negotiate a possible merger with the Landesbank (regional bank) of the German Federated States (Länder) of Hessen and Thüringen (‘Helaba’).

6. On 7 February 2008, the Federal Republic of Germany informed the Commission of the European Communities that, in the absence of support measures, WestLB was in danger of falling below the statutory capital requirements by 31 March 2008.

7. On 8 February 2008, the owners reached an agreement entitled ‘the document on the principal issues’ (Eckpunktepapier). That agreement included a measure to replace those proposed on 20 January 2008, namely the creation of a bad bank (‘the bad bank’) intended to isolate WestLB from the risks resulting from the EUR 23 billion portfolio. On the same day, the Federal Republic of Germany informed the Commission of the existence of the agreement, which was notified on 27 March 2008.

8. On 31 March 2008, the owners approved the creation of the bad bank, subject to the agreement of the parliament of the Land of North Rhine Westphalia.

3. Description of the bad bank

9. The creation of the bad bank involved the sale, with effect from 31 March 2008, of the EUR 23 billion portfolio, at its nominal value, to a special-purpose vehicle established in Ireland, Phœnix Light SF Ltd (‘Phœnix Light’). That company undertook to continue refinancing that portfolio.

10. In order to pay the purchase price, Phœnix Light issued notes equal to the nominal value of EUR 23 billion. The notes were issued in two tranches. The first tranche consisted of senior notes (‘the senior notes’) having a total nominal value of EUR 18 billion. The second tranche consisted of junior notes (‘the junior notes’) having a total nominal value of EUR 5 billion.

11. The Land of North Rhine Westphalia guaranteed payment of all the capital covered by the junior notes to the holders of those notes. In accordance with the Eckpunktepapier, it was entitled to claim compensation from the other four owners in proportion to their holdings in WestLB for any payment made under the guarantee thus established (‘the guarantee at issue’), within a limit of EUR 2 billion. If the additional EUR 3 billion was called upon, the Land of North Rhine Westphalia was entitled to demand that those owners transfer to it a corresponding number of their WestLB shares. The owners could also agree to a cash payment.

12. Phœnix Light had to pay annual commission on the guarantee at issue. It also had to pay the holders of the notes. Those costs and the administrative costs of the bad bank were to be borne out of the return on the securities transferred to Phœnix Light.

13. WestLB then purchased the junior notes. There are two reasons for this. First, since those notes were guaranteed by the Land of North Rhine Westphalia, the auditors of WestLB considered that they would not have to correct the value of the notes downwards in WestLB’s accounts, as they would have been obliged to do in the case of the EUR 23 billion portfolio. Secondly, the junior notes could be used as collateral to raise the funds required in order to buy them.

14. WestLB also purchased the senior notes.

4. Supplementary notification

15. On 11 April 2008, the Federal Republic of Germany sent a supplementary notification to the Commission concerning the bad bank. It stated that, following the approval of the parliament of the Land of North Rhine Westphalia, the bad bank had been created and, acknowledging that its creation involved the granting of State aid, requested its immediate approval as rescue aid. The Federal Republic of Germany undertook to submit to the Commission, within a period of six months, expiring on 8 August 2008, either a restructuring plan for WestLB or proof of the complete termination of the guarantee at issue. It stated that, in the latter case, WestLB would have to refund any ‘payments’ made to it and all the economic effects of the guarantee would be reversed.

5. Authorisation of the guarantee at issue for a period of six months

16. On 30 April 2008, the Commission adopted Decision C(2008) 1628 final concerning the bad bank created by the Federal Republic of Germany for the benefit of WestLB (Aid NN 25/2008, ex CP 15/08) (‘the provisional decision’).

17. In that decision, in the first place, the Commission considered that the guarantee at issue was State aid within the meaning of Article 87 EC (recitals 28 to 39 of the provisional decision).

18. In the second place, the Commission noted that the aid referred to in the preceding paragraph was not intended to remedy a serious disturbance in the economy of a Member State. Accordingly, it could not be considered to be compatible with the common market under Article 87(3)(b) EC. However, having examined the aid in the light of the Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2, ‘the rescue and restructuring guidelines’), the Commission considered that it could be authorised under Article 87(3)(c) EC (recitals 41 to 58 of the provisional decision).

19. In that regard, the Commission found, first, that WestLB was a firm in difficulty within the meaning of the rescue and restructuring guidelines. The Commission noted that, if the guarantee at issue had not been provided, on the one hand, WestLB would not have been able to comply with the statutory capitalisation requirements and, on the other hand, its credit rating would have been downgraded, thereby making its refinancing difficult and causing further losses which could have resulted in its going out of business in the medium term (recitals 44 and 45 of the provisional decision).

20. The Commission found, secondly, that the guarantee at issue was equivalent to a ‘capital loan’ allowing WestLB to comply with the statutory capitalisation requirements and therefore to continue its business activities. The Commission noted that that guarantee complied with the limitations provided for by the rescue and restructuring guidelines, in so far as, on the one hand, it was created for a period of six months and was reversible and, on the other hand, the element of aid which it involved was the minimum necessary to ensure continuity of the business (recitals 47 to 49, 52, 54 and 55 of the provisional decision).

21. The Commission found, thirdly, that the aid granted was justified on serious social grounds, had no unduly adverse effects and that no other rescue or restructuring aid had been received by WestLB over the preceding 10 years, as required by the rescue and restructuring guidelines (recitals 56 and 57 of the provisional decision).

22. In the operative part of the provisional decision, the Commission concluded that the guarantee at issue constituted State aid pursuant to Article 87(1) EC, put into effect in breach of Article 88(3) EC and compatible with the Common Market pursuant to Article 87(3)(c) EC. It stated that the Federal Republic of Germany should communicate to the Commission, not later than 8 August 2008, a restructuring plan for WestLB or proof of the complete termination of the guarantee at issue. The Commission stated that the Federal Republic of Germany had made a commitment, in the latter case, that ‘the guarantee agreement between the [Land of North Rhine Westphalia] and Phœnix Light’ would be rescinded. As a consequence WestLB would refund any payments made thereunder.

23. Finally, the Commission authorised the aid at issue until 8 August 2008 and stated that, if the Federal Republic of Germany communicated a credible restructuring plan to the Commission, the authorisation would, in principle, be extended until the adoption of a final decision concerning that plan.

6. Notification and examination of the extension for the bad bank

24. The Commission, the Federal Republic of Germany, WestLB and the owners had regular exchanges with a view to the adoption of a restructuring plan. The applicant claims that the Commission, at a meeting with WestLB and the owners on 15 July 2008, set out the criteria to which, in its view, its authorisation should be made subject, namely that that plan would make it possible, by certain mandatory deadlines, to achieve a 50% reduction in the size of WestLB’s balance sheet and a change in its ownership structure.

25. By letter of 8 August 2008, the Federal Republic of Germany notified the Commission of its intention to transform the bad bank into a permanent structure. The notification was accompanied by a restructuring plan for WestLB (‘the original restructuring plan’) and by an agreement adopted by the owners known as ‘the agreement on the principal issues’ (Eckpunktevereinbarung).

26. The original restructuring plan provided, in particular, for significant measures for reducing the balance sheet and activities of WestLB and for changing its ownership structure to ensure that the owners would no longer have majority control on 30 September 2009 (the owners and the Federal Republic of Germany undertook to provide the Commission with more precise information in that regard by 31 December 2008).

27. In the Eckpunktevereinbarung, the owners undertook to find solutions to the difficulties of WestLB which were consistent with sustainable reform of the German Landesbanken sector. They indicated that they intended to submit to the Commission, by 31 December 2008, a revised restructuring plan, including reduction measures going beyond the original restructuring plan and taking into account the modification of the ownership structure.

28. By a letter of 1 October 2008 including an invitation to submit comments pursuant to Article 88(2) EC [State Aid — Germany — State Aid C 43/08 (ex N 390/08) — WestLB] (OJ 2008 C 322, p. 16, ‘the opening decision’), the Commission notified the Federal Republic of Germany of its decision to initiate the formal investigation procedure provided for in Article 88(2) EC (‘the formal investigation procedure’) concerning the ‘risk shield granted in favour of WestLB by its public owners’.

29. First of all, the Commission confirmed the assessments it had made in the provisional decision concerning the existence of State aid (recitals 34 and 35 of the opening decision) and the possibility of examining its compatibility with the common market exclusively under Article 87(3)(c) EC. It considered that the crisis on the ‘subprime market’ had not yet led to a serious disturbance of the economy within the meaning of Article 87(3)(b) EC (recitals 43 and 45 of the opening decision). The Commission pointed out that, since the Federal Republic of Germany intended to transform the bad bank into a permanent structure, the aid at issue should thenceforth be regarded as restructuring aid (recital 33 of the opening decision).

30. Next, the Commission expressed doubts as to whether the original restructuring plan was compatible with the rescue and restructuring guidelines and stated that it needed additional information (recital 47 of the opening decision).

31. In that regard, it pointed out that WestLB did not intend to deviate from its business model, which had proved unsustainable in the long term. More drastic changes might therefore be necessary to ensure its viability. The Commission noted that the difficulties of WestLB were probably due to its ownership structure and to the different interests among the owners and expressed its doubts as to the possibility of an appropriate strategic reorientation in the absence of a solution to those structural issues. The Commission positively assessed the fact that the original restructuring plan provided for a modification in the ownership structure, since that could bring about changes in WestLB’s business model. However, since the plan contained no concrete measures in that respect, it was not possible to determine the extent to which it would restore the bank’s viability (recitals 48 to 50 of the opening decision).

32. Finally, the Commission invited the interested parties to submit their comments, which only the Federal Republic of Germany submitted, on 24 November 2008.

33. On 16 December 2008, the Federal Republic of Germany requested an extension of the deadline for the communication of the concrete measures relating to the modification of the ownership structure of WestLB. The Commission extended that deadline until 31 March 2009.

34. According to the applicant, on 31 March 2009, at a meeting with the Federal Republic of Germany, the Commission presented a ‘road map’ containing the conditions which, according to a predetermined timetable, had to be fulfilled in order for the bad bank to be authorised as a permanent structure and stated that it might adopt a negative decision on 13 May 2009.

35. From 6 to 8 April 2009, the Commission held discussions with the Federal Republic of Germany, WestLB and the owners on the restructuring of the bank and the conditions necessary to avoid a negative decision.

36. On 30 April 2009, the Federal Republic of Germany submitted a restructuring plan incorporating some amendments, discussed with the Commission, to the original restructuring plan (‘the final restructuring plan’).

37. That plan provided, first of all, for a change in the ownership structure of WestLB to be put into definite terms by 31 December 2008 (by a letter of intent, for example). WestLB would be offered for sale, as a whole or in separate units, in a tender procedure launched before 31 August 2010, enabling the sale to become effective on 1 January 2012 at the latest and subject to certain conditions.

38. Next, in order to facilitate the sale of WestLB, provision was made for rationalisation measures to allow a reduction of costs and risks and a reorientation of the business, namely the closing of several establishments and a reduction of the balance sheet and risk-weighted assets by 25% by 31 March 2010 and by 50% by the end of March 2011, by reference to those of 2007.

39. Finally, the plan at issue provided for the phasing-out or reduction of several activities of WestLB.

7. Contested decision

40. On 12 May 2009, the Commission adopted Decision 2009/971/EC on State aid which Germany proposes to grant towards the restructuring of WestLB AG (C 43/08 (ex N 390/08)).

41. By letter of 29 May 2009, the Federal Republic of Germany informed the Commission that, in its view, that decision contained errors and inaccuracies, in particular in recital 41, worded as follows:

‘... All the amendments made to the [original] restructuring plan … were discussed with the Commission, accepted by [the Federal Republic of] Germany, and submitted to the Commission on 30 April 2009 as an amendment of the plan. However, the [final] restructuring plan is still subject to official confirmation by three out of WestLB’s five owners. Although it has been accepted by [the Federal Republic of] Germany and by the owners, therefore, the restructuring plan cannot be considered binding. In the course of the proceedings the Commission has observed that the owners did not meet the deadlines and delayed the procedure. The Commission consequently considers it necessary to attach conditions to its Decision.’

42. The Federal Republic of Germany claimed that the penultimate sentence of that recital was inaccurate in so far as ‘reasons had been given for the extension of the deadline and it had been approved by the Commission’.

43. On 10 June 2009, the Commission made an offer to the Federal Republic of Germany to amend the wording of the penultimate sentence of that recital, stating that it constituted a mere clarification. It now reads as follows:

‘In the course of the proceedings the Commission has observed that the owners have been unable to comply with the original timetable for an authorised restructuring plan, and that decision-making has fallen behind schedule.’

44. The Federal Republic of Germany having given its agreement to the new wording by electronic mail of 22 June 2009, the Commission adopted on 28 July 2009 a corrigendum to Decision 2009/971. The Commission sent that corrigendum to the Federal Republic of Germany at the same time as the thereby corrected version of that decision (OJ 2009 L 345, p. 1, ‘the contested decision’).

45. In the contested decision, in the first place, the Commission pointed out that it had already found, in the provisional decision, that the creation of the bad bank constituted State aid to WestLB and it noted that the amount of that aid, once the bad bank was converted into a permanent structure, would in all probability be the nominal value (EUR 5 billion) of the guarantee at issue (recitals 52, 54 to 58 and 60 of the contested decision).

46. In the second place, the Commission found, contrary to the findings it had made in the provisional decision and the opening decision, that it was possible to examine whether the aid at issue was compatible with the common market under Article 87(3)(b) EC.

47. The Commission stated that that shift in orientation was due to the fact that, after the adoption of the opening decision, it had found, in the Communication concerning the application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis (OJ 2008 C 270, p. 8, ‘the Communication on the measures taken on account of the financial crisis’), in the communication entitled ‘The recapitalisation of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition’ (OJ 2009 C 10, p. 2) and in the Communication on the treatment of impaired assets, that the measures supporting banks were capable of remedying a threat of serious disturbance to the German economy (recitals 61 and 62 of the contested decision).

48. However, the Commission pointed out that, as it had stated in the communications cited in the preceding paragraph, the compatibility with the common market of the aid granted in connection with the financial crisis should have been assessed in accordance with the rescue and restructuring guidelines, having regard to the particular features of a systemic crisis in the financial markets (recital 63 of the contested decision).

49. In the third place, the Commission examined the compatibility of the aid with the common market. The Commission stated that it had to determine, in accordance with the rescue and restructuring guidelines, first of all, whether there existed a restructuring plan capable of restoring the long-term viability of WestLB, next, whether the aid was limited to the minimum necessary in time and amount and whether WestLB made a significant contribution to the costs of restructuring and, finally, whether the aid distorted competition to an extent contrary to the common interest. Moreover, the Commission pointed out that it could impose conditions on the beneficiary (recital 65 of the contested decision).

50. In that regard, first of all, the Commission examined the measures provided for by the final restructuring plan and concluded that they were capable of restoring the long-term viability of WestLB (recitals 66 to 75 of the contested decision).

51. Next, the Commission considered, first, that the contribution that WestLB had undertaken to make towards the restructuring costs was substantial and as great as it could be and, secondly, that the amount of the aid was limited to the minimum necessary (recitals 76 and 79 of the contested decision).

52. Finally, the Commission examined, in recitals 80 to 87 of the contested decision, whether the final restructuring plan provided for measures to mitigate as far as possible any adverse effects of the aid on competitors and, in recital 88 of that decision, concluded that, in sum, the ‘compensatory measures’ were in proportion to the distortive effects and ensured that the adverse effects on trading conditions were minimised as far as possible.

53. In the light of the above, the Commission considered the aid to be compatible with the common market, subject to compliance with certain conditions (recital 89 of the contested decision).

54. The operative part of the contested decision is worded as follows:

‘ Article 1

The aid in the form of a guarantee of EUR 5 billion which [the Federal Republic of] Germany plans to grant to WestLB … is compatible with the common market subject to the conditions set out in Article 2 and in the Annex.

Article 2

1. The [final restructuring plan] must be implemented, subject to all the conditions set out in the Annex and in accordance with the timetable announced.

2. If appropriate ... the Commission may, in response to a properly reasoned application on the part of [the Federal Republic of] Germany:

(a) allow an extension of the deadlines ...; or

(b) in exceptional circumstances, dispense with, amend or replace one or more of the conditions …

...’

55. The annex to the contested decision is worded as follows:

‘With regard to Article 2(1)

...

2.1. [The] owners … are to sell WestLB, as a whole or in separate units, by 31 December 2011.

2.2. The owners … are to initiate a tender procedure … by 31 August 2010, and to conclude a contract of sale with the purchaser by 31 August 2011, so that the sale can take effect by 31 December 2011. For properly substantiated reasons the Commission may agree to a sale by private treaty or to a consolidation of Landesbanken ...

...

3.1. By reference to WestLB’s audited balance sheet total for 31 December 2007 …, the balance sheet total is to be reduced by 25% by 31 March 2010 and by 50% by 31 March 2011 ...

...

4.1. WestLB’s core business must be unbundled, and grouped in the following business areas ... by 30 October 2009:

(a) transaction banking,

(b) medium-sized companies and savings banks partnership ( Verbund/Mittelstand ),

(c) capital markets, wholesale banking and structured financing.

4.2. [Those] segmented business areas … are to be sold together or separately by 31 December 2011.

4.3. Pending the sale, none of [those] segmented business areas … may be expanded by mergers or acquisitions ...

...

4.5. … the following restrictions are to apply to capital market business pending the sale:

...

4.6. … the following restrictions are to apply to wholesale banking and structured financing business pending the sale:

...

5.1. All of the following … holdings are to be sold in their entirety as quickly as possible and no later than … 2010: [sixteen holdings listed]

...

5.8. Pending the sale, in the event of a loss WestLB is to make no payments on hybrid capital instruments. If WestLB’s balance sheet, without adjustment of capital reserves, shows a loss, these instruments must also participate in the loss.

...

6.1. WestLB is to be sold, as a whole or in separate units, in an open, transparent and non-discriminatory tender procedure, subject to the deadlines in points 2.1 and 2.2 [of the annex to the contested decision].

6.2. The procedure must be open to any potential buyer, domestic or foreign ...

...

6.4. The buyer:

(a) must be a third party unconnected with the owners ...

(b) must be reasonably expected to be able to obtain all necessary authorisations from all relevant … authorities ...;

(c) on the basis of its financial resources and in particular its rating, must be able to ensure the solvency of [WestLB].

6.5. Full divesture of segmented business areas is … preferred to a simple transfer of the majority of the voting rights … [That simple transfer] is admissible only if in the tender procedure no offer is made for the full divesture of one or more segmented business areas. The Commission must be informed of the award, and may enter an objection.

6.6. This is without prejudice to the possibility … of a sale by private treaty or a consolidation of Landesbanken with the Commission’s assent. The previous owners may thereby become minority shareholders if the controlling majority [of WestLB] is lost.

6.7. Business areas and activities which are not sold are to be finally discontinued by 31 December 2011, or allowed to expire after that date upon the maturity of the underlying business.

...

With regard to Article 2(2) [of the contested decision]

In applying the review clause in Article 2(2) [of the contested decision], the Commission is to have due regard to supply conditions and the situation on the capital markets.’

8. Developments in WestLB’s situation after the adoption of the contested decision

56. After the adoption of the contested decision, the value of the EUR 23 billion portfolio deteriorated to the point that the existence of the guarantee at issue was not sufficient to enable WestLB to meet the statutory capital requirements. The Commission, by decision of 7 October 2009, provisionally authorised the granting of a new guarantee for WestLB, in the amount of EUR 6.4 billion, under Article 87(3)(b) EC (State aid N 531/2009), (OJ 2009 C 305, p. 4). The Federal Republic of Germany undertook to present further restructuring measures before 30 November 2009.

57. On 10 December 2009, the Federal Republic of Germany notified the Commission of a capital injection of EUR 3 billion into WestLB and a supplementary guarantee of EUR 1 billion, the purpose of which was to transfer assets having a nominal value of EUR 85.1 billion to a new bad bank. The Commission provisionally authorised those further measures by a decision of 22 December 2009.

58. On 15 December 2009, the Federal Republic of Germany communicated to the Commission a modified restructuring plan (‘the liquidation plan’).

59. On 20 December 2011, the Commission adopted a further decision on the support measures implemented in favour of WestLB between 2007 and the end of 2011 (Aid C 40/2009 and C 43/2008); (‘the final decision of 2011’). In that decision, the Commission repealed the contested decision (Article 3 of the final decision of 2011). It examined as a whole, from the perspective of State aid law, the various capital injections and guarantees granted for the benefit of WestLB between 2007 and December 2011, including the guarantee at issue. The Commission considered that they constituted restructuring aid compatible with the common market under Article 87(3)(b) EC, subject to implementation of the measures provided for by the liquidation plan.

Procedure

60. By application lodged at the Court Registry on 13 November 2009, the applicant brought an action for annulment of the contested decision.

61. By separate document, lodged at the Court Registry on the same day, the applicant lodged an application for interim relief seeking suspension of operation of the contested decision. By order of 18 March 2011 in Westfälisch-Lippischer Sparkassen-und Giroverband v Commission (Case T‑457/09 R, not published in the ECR), the Court hearing the application for interim relief dismissed that application and reserved the costs.

62. By letter of 26 April 2012, the Commission informed the Court of the adoption of the final decision of 2011 and claimed that, after the adoption of that decision, ‘the applicant no longer [had] any legal interest in bringing proceedings, assuming there [had] ever been one’. However, it did not explain the reason for that claim.

63. The Court, in the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure (‘the measures of organisation of procedure’), invited the applicant to comment on the conclusions to be drawn in connection with the present action from the adoption of the final decision of 2011.

64. The applicant complied with that request by letter dated 11 June 2012.

65. In the context of the measures of organisation of procedure, the Court asked the Commission, by letter of 28 November 2012, to submit its observa tions on the applicant’s letter of 11 June 2012.

66. The Commission complied with that request by letter dated 11 January 2013. In that letter, the Commission asked the Court, stating reasons, to find that there was no need to adjudicate.

67. By letter of 4 April 2013, the applicant submitted its observations on the request for an order that there is no need to adjudicate made by the Commission.

68. By decision of 16 October 2013, the Court, on a proposal from the First Chamber, referred the case to the First Chamber, Extended Composition, under Article 14(1) and the first paragraph of Article 51(1) of the Rules of Procedure.

69. By order of 24 October 2013, the Court (First Chamber, Extended Composition) reserved until final judgment the request for an order that there is no need to adjudicate made by the Commission.

70. On 31 October 2013, the Court, in the context of the measures of organisation of procedure, put a number of written questions to the parties, which responded to those questions within the prescribed period.

71. Acting on a report of the Judge-Rapporteur, the Court (First Chamber, Extended Composition) decided to open the oral procedure.

72. The parties presented oral argument and replied to the questions put by the Court at the hearing of 6 December 2013.

Forms of order sought by the parties

73. In the application, the applicant claims that the Court should:

– annul the contested decision;

– order the Commission to pay the costs.

74. In the defence, the Commission contends that the Court should:

– dismiss the action as partly inadmissible and partly unfounded;

– order the applicant to pay the costs.

75. In its letter of 26 April 2012, the Commission claims that the Court should:

– give the applicant the opportunity to state whether it is prepared to withdraw from the proceedings;

– if the applicant does withdraw from the proceedings, declare that the action has become devoid of purpose.

76. In its letter of 11 June 2012, the applicant claims that the Court should:

– reject the Commission’s request that the Court should declare that the dispute has become devoid of purpose;

– in the alternative, in the event that the Court holds that the action against the contested decision has become devoid of purpose, authorise the adaptation of the applicant’s pleas in law and form of order sought so that they thenceforth seek partial annulment of the final decision of 2011, in so far as it replaces the contested decision.

77. In its letter of 11 January 2013, the Commission submits that the Court should:

– order that there is no longer a need to adjudicate on the action;

– reject the applicant’s request to adapt its pleas in law and form of order sought;

– order the applicant to pay the costs.

78. In its letter of 4 April 2013, the applicant claims that the Court should:

– reject the Commission’s request for an order that there is no need to adjudicate;

– in the event that the Court holds that there is no longer a need to adjudicate, order the Commission to pay the costs;

– organise the holding of a hearing.

Law

1. Admissibility

The applicant’s standing to bring proceedings

79. As a preliminary point, it should be noted that, since it has legal personality, the applicant, a legal person governed by public law, may bring an action for annulment under the fourth paragraph of Article 230 EC, as it correctly claims. However, since the contested decision was addressed only to the Federal Republic of Germany, it is necessary to determine, in accordance with that provision, whether the applicant is individually concerned by that decision, and it should be noted in this connection that there is no doubt that the decision is of direct concern to the applicant, which is also not disputed by the parties.

80. According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95 and Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I‑10737, paragraph 33).

81. The applicant claims that it is individually concerned by the contested decision in its entirety for the purposes of the case-law referred to in the preceding paragraph. It submits a number of observations in that regard, which can be grouped into two main arguments, concerning, first, the fact that it took part in the adoption of the measure which the Commission classified as State aid in the contested decision and, secondly, the particular harm to it as an owner.

82. The Commission observes that the applicant is only partly concerned by the contested decision. It points out in that regard, first, that the applicant cannot base its standing to bring proceedings on its status as the body which adopted the measure classified as State aid in that decision. The Commission points out, secondly, that the applicant, as an owner, is individually concerned only by the conditions set out in the annex to the contested decision concerning the obligation of the owners to sell WestLB to an unconnected third party (‘the obligation to sell’).

The first argument, concerning the fact that the applicant took part in the adoption of the measure classified as State aid by the contested decision

83. It is clear from the case-law that the legal position of a body other than a Member State, which has legal personality and has adopted a measure classified as State aid in a final decision by the Commission (‘the provider of the aid’), may be individually concerned by that decision if the decision prevents it from exercising its own powers, which consist, in particular, in granting the aid at issue (see, in that regard, Case T‑214/95 Vlaams Gewest v Commission [1998] ECR II‑717, paragraph 29, and Joined Cases T‑127/99, T‑129/99 and T‑148/99 Diputación Foral de Álava and Others v Commission [2002] ECR II‑1275, paragraphs 50 and 51).

84. The applicant claims, first, that it is the joint author of the measure classified as State aid in the contested decision and, secondly, that it adopted that measure in the exercise of its own powers. According to the applicant, the contested decision prevents it from exercising its own powers, which consist, in the present case, in granting the guarantee at issue. The action is therefore admissible in accordance with the case-law referred to in the preceding paragraph.

85. In its pleadings, the Commission has not disputed that the applicant may be regarded as the provider of the aid examined in the contested decision. It noted that the applicant was not representing an interest of its own, which, according to the case-law, would prevent it from validly bringing proceedings as the provider of the aid. However, in its reply to the questions of the Court dated 31 October 2013 and at the hearing, the Commission argued that the applicant could not be regarded as the provider of the aid. The Commission considered that the aid examined in the contested decision was granted to WestLB solely by the Land of North Rhine Westphalia.

86. It follows from the operative part of the contested decision, which refers only to a ‘guarantee of EUR 5 billion’ (see paragraph 54 above), that the guarantee at issue is the only measure formally classified as State aid in that decision.

87. It is therefore necessary to examine whether the applicant can be regarded as having granted a part of that aid.

88. In that regard, first of all, it should be pointed out that, in formal terms, the guarantee at issue was granted to potential purchasers of the junior notes by the Land of North Rhine Westphalia and not by owners other than that Land (‘the other owners’), since the involvement of the other owners, including the applicant, in the event of any call on that guarantee, is a matter which is purely internal to the owners.

89. Thus, on the one hand, while it is clear from recital 24 of the contested decision that the purchasers of the junior notes could request economic compensation from the Land of North Rhine Westphalia if they incurred losses connected with a deterioration in the value of those securities, there is nothing in the contested decision or in the case-file to suggest that they could also seek any compensation from the other owners. The intervention of the other owners in the event of enforcement of the guarantee at issue is, under the agreements reached by the owners, limited to offering compensation to the Land of North Rhine Westphalia in proportion to their share of the capital for the first EUR 2 billion paid out and, for any additional amount, transferring shares in WestLB to it or agreeing on compensation in cash (see paragraph 11 above and recital 24 of the contested decision).

90. In that respect, it should be added that the applicant itself confirmed in its response to the questions from the Court dated 31 October 2013 and at the hearing that only the Land of North Rhine Westphalia had guaranteed the nominal value of the junior notes vis-à-vis the holders of those securities and that those holders could not seek any compensation from the other owners.

91. On the other hand, it follows from recitals 24 and 26 of the contested decision and from the third indent of recital 20 of the provisional decision that the intervention of the other owners in favour of the Land of North Rhine Westphalia in the event of a call on the guarantee at issue is not automatic, but requires that an application for compensation be made in advance by that Land. The Land of North Rhine Westphalia therefore remains not only the sole guarantor of the nominal value of the junior notes vis-à-vis the holders of those securities, but also controls the allocation of the costs associated with any enforcement of the guarantee at issue between the owners, subject to compliance with the maximum limits of liability agreed upon by them.

92. Next, at the substantive level, it should be noted that, as the parties argued at the hearing, WestLB is the beneficiary of the guarantee at issue in that, under it, the operations described in paragraphs 9 to 14 above, whereby the bad bank was created, enabled it in practice to remove from its balance sheet assets whose value had seriously deteriorated and to include on its balance sheet new assets, namely the junior notes, whose nominal value, equivalent to that of the removed assets, was guaranteed. However, while the participation of the Land of North Rhine Westphalia in the guarantee at issue may have conferred an advantage on WestLB in that context, the participation of the other owners cannot be regarded as forming the basis of its creation.

93. Thus, first, contrary to what the applicant argued at the hearing, the commitment of the other owners towards the Land of North Rhine Westphalia resulting in an obligation partially to repay to that Land the costs incurred in the event of enforcement of the guarantee at issue (‘the commitment of the other owners’) cannot be regarded as a ‘counter guarantee’ for the benefit of the holders of the junior notes, in so far as that commitment does not include the obligation to pay a percentage of the nominal value of the junior notes to those holders in a situation where both, first, the guarantee at issue is called and, secondly, the Land of North Rhine Westphalia fails to honour it.

94. Secondly, concerning the question whether, as the applicant argued at the hearing, the commitment of the other owners strengthens the solvency of the Land of North Rhine Westphalia with respect to the holders of the junior notes, it should be noted that even if the risk of insolvency of the Land of North Rhine Westphalia, which is a local authority whose autonomy and powers as a public authority derive from the German constitution, is proven and that, in the event of insolvency, the Federal Republic of Germany is not required, under its national law, to lend it financial assistance to cover its debts, there is nothing in the case-file to support the view that the existence of the commitment of the other owners would be likely to enhance the right of the holders of the junior notes to enforce the guarantee at issue or to grant them priority over other creditors of that Land.

95. It follows from the foregoing that, as the Commission argues, the aid authorised in the contested decision was granted solely by the Land of North Rhine Westphalia, since the other owners cannot be regarded as the providers of any part of that aid.

96. That conclusion cannot be refuted by any of the arguments put forward by the applicant at the hearing.

97. The applicant argued, in the first place, that the Commission itself had described the other owners as providers of the aid in the contested decision.

98. In that regard, first, it should be pointed out that the question whether the applicant is the provider of the aid is an objective question, which depends on the facts set out in the contested decision, which the applicant does not dispute, and not on any assessment of those facts made by the Commission.

99. Secondly, it should be noted that, in the context of the contested decision, the Commission was not required precisely to identify the provider of the aid. As it correctly pointed out at the hearing, the Commission could confine itself to explaining why it considered that the guarantee at issue had been granted by the State from public resources. Since at no stage of the administrative procedure did the Federal Republic of Germany dispute that the guarantee at issue is attributable to the State or that there was a transfer of public resources, the question whether the other owners could be regarded as providers of the aid was therefore irrelevant in the context of that decision.

100. Thirdly, with regard to that assessment, it is certainly true that, in the first indent of recital 23 of the contested decision, the Commission states that the guarantee at issue consists, in part, of a ‘a guarantee issued by the owners of WestLB in line with their respective shareholdings covering claims up to an amount of EUR 2 billion held by WestLB against Phœnix Light’. Similarl y, in the fourth indent of recital 23 of the contested decision, the Commission states that Phœnix Light is to pay ‘the guarantors’ an annual commission on the guarantee at issue. However, the Commission notes at the same time, in the third indent of recital 23 of that decision, that it is the Land of North Rhine-Westphalia which issued a guarantee for the junior notes as a result of which those securities are safer. Finally, it should be recalled that the Commission had stated in the operative part of the provisional decision that, if a restructuring plan was not presented to it by 8 August 2008 at the latest, the Federal Republic of Germany had made a commitment that ‘the agreement between the [Land of North Rhine-Westphalia] and Phœnix Light’, relating to the guarantee at issue, would be rescinded (see paragraphs 15 and 22 above).

101. In the second place, the applicant argued at the hearing that the Land of North Rhine-Westphalia would never have decided to guarantee the nominal value of the junior notes in the absence of a commitment by the other owners. That commitment was therefore a sine qua non of the guarantee at issue.

102. In that regard, it should be noted that the applicant has not substantiated its assertion with any evidence. It is therefore not possible to determine whether or not, in the absence of the commitment by the other owners, the Land of North Rhine Westphalia would have decided to grant the guarantee at issue.

103. In any event, Article 87(1) EC does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 85 and the case-law cited). Therefore, the subjective reasons leading the Land of North Rhine Westphalia to agree to become the sole guarantor of the nominal value of the junior notes vis-à-vis their holders have no bearing on whether the commitment of the other owners entails an appreciable advantage for WestLB and may be regarded as State aid to that bank.

104. In the third place, the applicant argued at the hearing that the Land of North Rhine Westphalia became the sole guarantor of the nominal value of the junior notes because it was the only conceivable option from a practical point of view. According to the applicant, since it was intended that those securities would be placed on the international financial markets, the associated guarantee had to be simple from a legal point of view and enable investors, who could not engage in detailed analyses concerning purchases of that type of security, first, easily to identify the guarantor and, secondly, not to have to contact various guarantors if the guarantee had to be enforced.

105. In that respect, it is necessary to reject from the outset the claim that investors do not engage in detailed analyses concerning the purchase of securities on international capital markets. This is a claim which is in no way substantiated and is also implausible, since a minimum duty of diligence is to be required of any investor and in particular as regards investors who decide to trade on international financial markets during a major crisis affecting those markets.

106. Next, it should be noted that the applicant’s argument does not explain why, from the point of view of simplicity for the holders of the junior notes, other options were not also feasible.

107. Thus, that argument does not explain why either issuing a joint guarantee by all the owners on a portion of the nominal value of each security, accompanied by an exclusive guarantee by the Land of North Rhine Westphalia for the remaining part, or a system of counter guarantees whereby the other owners agree to cover a percentage of the liability of that Land in case of default would not have allowed the buyers of the junior notes easily to identify the guarantors of those securities and to contact a single guarantor in the event of enforcement of the guarantee. Those two alternative schemes, which could have been accompanied by internal agreements to share the costs of any enforcement of the guarantee, could, unlike the commitment by the other owners in the present case, have provided an additional benefit to the holders of the junior notes.

108. Finally, and in any event, the question whether the scheme chosen by the owners to guarantee the nominal value of the junior notes was the only feasible scheme has no bearing on the question whether the commitment by the other owners conferred a benefit on WestLB, the beneficiary of the State aid identified by the Commission in the contested decision. Accordingly, nor does that question have a bearing on whether those owners can be regarded as the providers of the aid at issue.

109. Having regard to all of the foregoing, it must be held that it has not been established that the applicant is individually concerned by the contested decision in its capacity as a provider of the aid at issue.

The second argument, concerning individual harm to the applicant as an owner

110. The applicant claims that it is individually concerned, as an owner, by the contested decision, including as regards all the conditions which are attached to that decision.

111. The Commission accepts that the applicant is individually concerned, as an owner, by the obligation to sell. However, it disputes that the applicant is individually concerned by the other conditions attaching to the contested decision.

112. According to settled case-law, an applicant must show that it has a legal interest in bringing proceedings separate from that possessed by a company which it partly controls and which is concerned by a European Union measure. Otherwise, in order to defend its interests in relation to that measure, its only remedy lies in the exercise of its rights as a member of the company which itself has a right of action (see, to that effect, Case T‑597/97 Euromin v Council [2000] ECR II‑2419, paragraph 50, and Joined Cases T‑443/08 and T‑455/08 Freistaat Sachsen and Land Sachsen-Anhalt v Commission [2011] ECR, paragraph 62, and order of the General Court of 27 March 2012 in Case T‑261/11 European Goldfields v Commission , not published in the ECR, paragraph 21).

113. It is therefore necessary to consider whether the applicant has a legal interest in bringing proceedings separate from that possessed by WestLB so far as concerns the annulment of the contested decision.

114. The applicant argues that its interest in bringing proceedings is separate from that of WestLB, in so far as the contested decision compels it to give up its property rights and to accept a radical restructuring of that bank, including a reduction of the balance sheet of 50%, substantially reducing the value of its shareholding.

115. It should be noted at the outset that, as the Commission itself acknowledges, the applicant has an interest in bringing proceedings separate from that of WestLB as regards the obligation to sell.

116. Indeed, that obligation applies only to the owners, who are forced to waive, within strict deadlines, their property rights in WestLB in order for the aid granted to that bank, and necessary for its restructuring, to be authorised. WestLB, however, is not required to take any action under that obligation, which does not affect its assets and has no bearing on its conduct on the market.

117. However, as regards the other conditions attaching to the contested decision, including those relating to the reduction of WestLB’s balance sheet, it should be noted, first of all, that they relate to the commercial activity of that bank and the sale or liquidation of its assets. WestLB could itself put forward any argument, in the context of an action brought against the contested decision, relating to the unlawfulness or to the absence of necessity for those conditions.

118. Next, it should be noted that the Commission states, without being challenged by the applicant, that the non-policy-related rights of an owner of a German limited company are limited, on the one hand, to distribution of the company’s profits and, on the other hand, to receiving any surplus in the event of the undertaking’s liquidation. It is therefore necessary to consider that, under German law, status as an owner does not confer rights in the assets of the undertaking. The conditions relating to the reduction of an undertaking’s total balance sheet therefore cannot affect any rights of the owners.

119. Finally, it should be noted that the argument advanced by the applicant, in essence, to the effect that any decision taken by the Commission and having any negative impact on the value of a shareholding in a limited company may be challenged before the Court by the owners of that company, is incompatible with the case-law referred to in paragraph 112 above and must therefore be rejected.

120. In the light of all the foregoing considerations, it must be held that, as regards the conditions attaching to the contested decision other than the obligation to sell, including those relating to the reduction of WestLB’s balance sheet, the applicant’s interest in bringing proceedings is indissociable from that of WestLB and, therefore, it is not individually concerned by the contested decision. However, the applicant is individually concerned by that decision in so far as authorisation of the guarantee at issue was made subject to compliance with the obligation to sell.

Conclusion concerning the applicant’s standing to bring proceedings

121. It follows from the foregoing that the applicant has standing to bring proceedings against the contested decision only in so far as the obligation to sell was attached to that decision.

122. Accordingly, the pleas and arguments submitted by the applicant in support of its application for annulment of the contested decision can be considered only to the extent that they seek to show that the inclusion of that obligation in the annex to that decision was unlawful and they must be rejected as inadmissible as to the remainder.

The applicant’s interest in bringing proceedings

123. At the outset, it must be noted that, in the context of the final decision of 2011, the Commission authorised, subject to compliance with the liquidation plan, six aid measures, in addition to the guarantee at issue. Those six measures are listed in Article 1(1)(b) to (g) of that decision.

124. The liquidation plan, which replaces the final restructuring plan, involves bringing the existence of WestLB to an end and, as the Commission argues without this being disputed by the applicant, provides for:

– the hiving off of certain WestLB activities by combining them in a ‘Verbundbank’ (banking group) intended as a service provider for the savings banks of the Land of North Rhine Westphalia and the Land of Brandenburg and for their customers;

– the sale of a large number of WestLB’s activities and holdings;

– the permanent transfer of all WestLB’s remaining portfolios to a new bad bank, called EAA;

– the establishment of a service and portfolio management bank, provisionally called SPM Bank and subsequently called Portigon, responsible for providing services to EEA and the Verbundbank;

– the restriction of WestLB’s universal banking licence through the removal of certain authorisations.

125. It must therefore be considered, as the Commission confirmed at the hearing, that the liquidation plan includes an orderly unbundling of WestLB’s activities and the transfer of part of them to the Verbundbank, in order to ensure the continuity of certain services regarded as strategic to the savings banks for which, at the material time, WestLB, as the central institution, acted as the link to global financial markets.

126. However, the liquidation plan neither provides for an overall change in the ownership structure of WestLB, prior to its liquidation, nor makes it impossible for the owners to possess holdings of any kind, after that liquidation, in the successors to some of WestLB’s activities, namely the Verbundbank, EEA or the service and portfolio management bank provisionally called SPM Bank and subsequently called Portigon.

127. In that regard, the Commission states, without being challenged by the applicant, first, that the Verbundbank was taken over by Helaba on 1 July 2012 and, secondly, that, under the agreement to transfer the Verbundbank to Helaba, the applicant became an owner of Helaba and thus, indirectly, a joint owner of the Verbundbank.

128. It is in the light of that factual context that it is appropriate to consider the request for an order that there is no need to adjudicate made by the Commission, based on the fact that the applicant lost its legal interest in bringing proceedings against the contested decision as a result of the adoption of the final decision of 2011.

129. According to settled case-law, an applicant’s legal interest in bringing proceedings must exist on the day on which they are brought, failing which they will be inadmissible. Furthermore, that applicant’s interest in obtaining satisfaction must continue until the final decision, failing which there will be no need to adjudicate (see, to that effect, Case 14/63 Forges de Clabecq v High Authority [1963] ECR 357 and Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42).

130. It is also settled case-law that there is no longer any need to adjudicate on a claim for annulment in the event that an applicant has, on account of an event occurring since the action was brought, lost all legal interest in having the contested measure annulled, which means that the annulment of that measure is, of itself, no longer capable of having legal consequences (see Case T‑475/07 Dow AgroSciences and Others v Commission [2011] ECR II‑5937, paragraph 67 and the case-law cited).

131. However, as the applicant correctly argues, an applicant may continue to have an interest in securing the annulment of a measure which has been repealed, in so far as a repeal does not give rise to the same legal effects as annulment by the General Court. The repeal of a measure of an institution does not amount to recognition of its illegality and takes effect ex nunc, whereas its annulment would take effect ex tunc (see Dow AgroSciences and Others v Commission , paragraph 130 above, paragraph 68 and the case-law cited).

132. Moreover, an institution whose act has been declared void is required to take the necessary measures to comply with the judgment. Those measures involve, inter alia, the removal of the effects of the illegal conduct found in the judgment annulling the act. The institution concerned may thus be required to take adequate steps to restore the applicant to his original position or to avoid the adoption of an identical measure (see Dow AgroSciences and Others v Commission , paragraph 130 above, paragraph 69 and the case-law cited).

133. As stated in paragraph 59 above, the contested decision and therefore all the conditions attaching to it were repealed by the final decision of 2011. However, the contested decision was not withdrawn by the Commission. Consequently, it continued to produce legal effects in respect of the applicant’s position for the period between the time when it entered into force and the time when it was repealed (12 May 2009 — 20 December 2011). In particular, as the applicant correctly maintains, during that period the contested decision imposed upon it the obligation to give up its holding in WestLB. The annulment of the contested decision may therefore have, in itself, consequences for the legal position of the applicant, with the result that the applicant retains its legal interest in bringing proceedings (see, to that effect, Dow AgroSciences and Others v Commission , paragraph 130 above, paragraph 70).

134. In essence, the Commission puts forward two arguments to refute that conclusion.

135. First, the Commission points out that the obligation to sell was not put into effect, since it was impossible to find a buyer for WestLB, and no longer appears in the liquidation plan, and that the applicant has even become a joint owner of Helaba and, therefore, of the Verbundbank. According to the Commission, it follows that annulment of the contested decision would not change the applicant’s legal situation as regards the obligation to sell. However, since the action is admissible only in so far as that obligation is concerned, the applicant could not procure any advantage if the action were upheld.

136. In that regard, it should be noted that the applicant was subject to the obligation to sell for a period of more than two years. Admittedly, that obligation was not enforced in practice. However, the applicant retains an interest in seeking annulment of the contested decision in that that obligation was attached to it.

137. An applicant may retain an interest in seeking the annulment of an act which is not enforced and which directly affects him in order to obtain a finding, by the EU judicature, that an unlawful act has been committed against him, so that such a finding can then be the basis for any action for damages aimed at properly restoring the damage caused by the contested act (see, to that effect, Case T‑299/05 Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council [2009] ECR II‑565, paragraph 53 and the case-law cited).

138. That applies in the present case, since the applicant incurred costs with a view to the sale of its holding in WestLB, even though that sale ultimately did not take place. Contrary to what the Commission claims, on the one hand, those costs are a sufficiently direct result of the contested decision and, on the other hand, despite the various decisions adopted in connection with WestLB following the financial crisis, there is no reason to consider that it would be impossible properly to identify the share of the costs incurred by the claimant relating to the sales efforts which it had to make.

139. Against that background, the applicant retains an interest in having the contested decision found to be unlawful because that finding will bind the EU judicature in any action for damages and could constitute the basis for any extrajudicial negotiations between the Commission and the applicant aimed at reparation of the damage suffered by the latter (see, to that effect, Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council , paragraph 137 above, paragraph 55 and the case-law cited).

140. Moreover, to accept the Commission’s argument would be tantamount to admitting that acts adopted by the institutions and repealed after an action for annulment has been brought but before the Court is able to give the relevant judgment would be excluded from review by the Court, unless they have been implemented. Such a situation must be regarded as incompatible with the spirit of Article 263 TFEU, under which the EU judicature is to review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the European Central Bank (ECB), other than recommendations and opinions, and of acts of the Parliament intended to produce legal effects vis-à-vis third parties. The European Union is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with its basic constitutional charter, the Treaty, or the law which derives from that treaty (see, to that effect, Shanghai Excell M & E Enterprise and Shanghai Adeptech Precision v Council , paragraph 137 above, paragraphs 56 and 57).

141. It is therefore necessary to reject the first argument put forward by the Commission to refute the conclusion that the applicant retains an interest in bringing proceedings.

142. Secondly, the Commission argues that the applicant no longer has an interest in bringing proceedings against the contested decision, in so far as all the adverse effects which the conditions attaching to that decision could have had on its legal situation are also caused by the final decision of 2011.

143. In that regard, it is sufficient to note that, contrary to what the Commission claims, the final decision of 2011 does not cause all the adverse effects referred to in the preceding paragraph. For example, that decision does not impose upon the applicant an obligation to sell and therefore enables it to possess shareholdings, in principle of any kind, in the spun off activities of WestLB.

144. The second argument submitted by the Commission to refute the conclusion that the applicant retains an interest in bringing proceedings must therefore also be rejected.

145. Having regard to the foregoing considerations, it must be concluded that the applicant retains an interest in bringing proceedings. The request for an order that there is no need to adjudicate made by the Commission must therefore be rejected.

146. Accordingly, it is not necessary to examine the applicant’s request to adapt its pleas in law and form of order sought following the adoption of the final decision of 2011, made in the event that the Court should hold that the action against the contested decision had become devoid of purpose.

2. Substance

Preliminary observations

147. In support of its application, the applicant submits eight pleas in law. Those pleas allege infringement, first, of the principle of collegiality, secondly, of Article 87(1) EC, since the distortion of competition caused by the guarantee at issue was not examined, thirdly, of Article 87(3)(b) EC, fourthly, of the principle of proportionality, fifthly, of the principle of equal treatment, sixthly, of Article 295 EC, seventhly, of Article 7(4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] EC (OJ 1999 L 83, p. 1), and, eighthly, of the obligation to state reasons.

148. The Commission disputes the merits of all those pleas.

149. As noted in paragraph 122 above, the pleas put forward by the applicant are admissible only in so far as they are intended to show that the inclusion of the obligation to sell in the annex to the contested decision is unlawful.

150. The applicant claims that that inclusion is unlawful in the fourth, fifth, sixth, seventh and eighth pleas. However, in those same pleas, it also presents arguments concerning the lawfulness of other conditions contained in the annex to the contested decision. Since those arguments are inadmissible, they must be rejected from the outset.

151. Next, it should be noted that the obligation to sell could not have been lawfully included in the annex to the contested decision if that decision was adopted in breach of the principle of collegiality or of Article 87(3)(b) EC or Article 87(1) EC and of the obligation to state reasons as regards the adverse effects on competition caused by the guarantee at issue, as the applicant claims, respectively, in the first three pleas. It is therefore necessary to consider that those pleas are also admissible and must be examined.

152. Accordingly, it is appropriate to examine:

– first, the first plea, alleging infringement of the principle of collegiality;

– secondly, the third plea, alleging infringement of Article 87(3)(b) EC;

– thirdly, the second plea, alleging infringement of Article 87(1) EC;

– fourthly, the eighth plea, alleging infringement of the obligation to state reasons;

– fifthly, the fourth, fifth, sixth and seventh pleas, alleging infringement, respectively, of the principle of proportionality, the principle of equal treatment, Article 295 EC and Article 7(4) of Regulation No 659/1999.

153. Finally, it is necessary to examine in the context of the second plea a number of arguments put forward in the eighth plea relating to the inadequacy of the statement of reasons for the contested decision as regards the possible effects on competition of the guarantee at issue.

The first plea, alleging infringement of the principle of collegiality

154. In the application, the applicant submits that the contested decision was adopted not by the College of Commissioners but solely by the Commissioner responsible at the material time for competition matters, namely N. Kroes, which constitutes an infringement of the principle of collegiality stemming from Article 219 EC and Article 1 of the Rules of Procedure of the Commission [C(2000) 3614] (OJ 2000 L 308, p. 26).

155. However, as the Commission correctly points out, it is clear from a note from the Director of the Registry of the Secretariat of the Commission of 12 May 2009 giving formal notice of the adoption, on that day, of certain decisions of the Commission (SEC 2009 663/2002) that the contested decision was taken by the College of Commissioners, by written procedure, and not by N. Kroes.

156. In its reply, the applicant acknowledges that the note from the Director of the Registry of the Secretariat of the Commission referred to in the preceding paragraph is evidence of the adoption of the contested decision by written procedure. However, it maintains the present plea and puts forward two new claims (‘the new claims’).

157. In the first place, the applicant submits that the written procedure ‘usually takes five days’. However, the Commission sent the German version of the contested decision to WestLB on 6 May 2009. According to the applicant, it is clear from two e-mails from the Commission of 6 and 7 May 2009 that the wording of that decision was reworked on 7 May 2009. The applicant argues that it therefore cannot understand ‘which text was adopted [by written procedure] and when it occurred’. It requests that the Commission ‘provide the necessary clarifications’ in that regard.

158. In the second place, the applicant argues that ‘proof that the written procedure was used does not explain ... why a decision which was supposed to be submitted ... at the Commission meeting of 13 May 2009 was quickly brought forward by one day’. It states that it is clear from an e-mail from the German Ministry of the Economy of 11 May 2009 that that change was decided upon by the Commission ‘to free up the Wednesday, a day on which many decisions had to be taken’. The applicant infers from this that it was planned to adopt the contested decision at the meeting of 13 May 2009 and not by written procedure. Furthermore, the applicant submits that that procedure is not intended to be used for the adoption of day-to-day management decisions. It therefore cannot be used to adopt a decision involving an obligation to sell.

159. The Commission argues that the new claims are inadmissible, since they constitute new pleas in law raised in the reply. In any event, those claims are manifestly unfounded.

160. It is clear from the provisions of Articles 44(1)(c) and 48(2) of the Rules of Procedure of the General Court, taken together, that the application initiating proceedings must indicate the subject-matter of the dispute and set out in summary form the pleas raised and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (Case T‑340/04 France Télécom v Commission [2007] ECR II‑573, paragraph 164).

161. However, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (Case T‑252/97 Dürbeck v Commission [2000] ECR II‑3031, paragraph 39, and Case T‑195/00 Travelex Global and Financial Services and Interpayment Services v Commission [2003] ECR II‑1677, paragraph 34).

162. The applicant no longer challenges the contested decision on the ground that it was not adopted by the College of Commissioners, as it had argued in the application. However, by the new claims, it continues to maintain that the contested decision was not genuinely, or validly, adopted by the College of Commissioners. Accordingly, it must be held that there is a sufficient connection between the original plea and the new claims, with the result that they are admissible.

163. It is therefore necessary to examine the new claims on their merits.

164. By the first of the new claims, the applicant claims, in essence, first, that the final version of the contested decision was not circulated to the Members of the Commission in good time and, secondly, that the Commission should state whether the final version of the contested decision was actually adopted by written procedure.

165. As regards the first question, it should be noted that the applicant merely states that the written procedure ‘usually takes five days’ and that the Commission reworked the wording of the contested decision until 7 May 2009. However, Article 12 of the Rules of Procedure of the Commission, which allows it to adopt a proposal by one or more of its Members by means of a written procedure, does not stipulate a period for which the Members of the Commission must have the text of the relevant proposal before it can be adopted. The second paragraph of that provision merely provides that ‘the text of the proposal shall be circulated in writing to all Members of the Commission …, with a time limit within which Members must make known any reservations or amendments they wish to make’.

166. Moreover, it must be taken into account that the Commission stated, in the rejoinder, without being contradicted by the applicant, that the amendments made to the text concerned only minor corrections in the German version as against the version drafted in the working language used, namely English.

167. Therefore, the claim that the contested decision was adopted without giving the Members of the Commission sufficient time to examine it must be rejected.

168. As to the second issue, it is sufficient to note that the Commission has already stated that the contested decision was adopted, in its final form, by written procedure, on 12 May 2009. This is supported by the note from the Director of the Registry of the Secretariat of the Commission referred to in paragraph 155 above and is not disputed by the applicant.

169. The first of the new claims must therefore be rejected as unfounded.

170. By the second of the new claims, the applicant submits, in essence, that the written procedure should not have been used to adopt the contested decision, in so far as that procedure is reserved for the adoption of decisions relating to day-to-day management.

171. In that regard, it is sufficient to compare the wording of Articles 13 and 14 of the Rules of Procedure of the Commission, under which, respectively, the empowerment and delegation procedures are reserved for the adoption of management or administration measures, with the wording of Article 12 of that regulation, which does not contain such a limitation concerning the written procedure.

172. Contrary to what is stated by the applicant, that conclusion cannot be refuted by the explanatory note to the Rules of Procedure of the Commission on its website, which the applicant attached to the reply. As the Commission correctly argues, that note has no binding legal force, as stated in its actual wording. Furthermore, it is stated in that explanatory note that ‘[the written procedure, empowerment and delegation] are largely intended to relieve the Commission of decisions concerning day-to-day management which do not require discussion’, which in no way precludes the written procedure for the adoption of decisions which are not concerned with day-to-day management.

173. It follows from the foregoing that the second of the new claims is also unfounded.

174. Accordingly, the present plea must be rejected.

The third plea, alleging infringement of Article 87(3)(b) EC

175. The applicant points out that the Commission approved the granting of the guarantee at issue for the benefit of WestLB under Article 87(3)(b) EC and argues that it committed an error when applying that provision.

176. The applicant puts forward, in that regard, several arguments which may be divided into two parts, the first part being raised as its principal argument and the second part being raised in the alternative. Those parts are based, first, on the fact that the Commission wrongly considered that the purpose of Article 87(3)(b) EC was comparable to that of Article 87(3)(c) EC and that of the rescue and restructuring guidelines and, secondly, on the fact that, in the contested decision, the Commission wrongly imposed conditions stricter than those imposed under the combined application of those guidelines with Article 87(3)(c) EC.

The first part, put forward as the principal argument, alleging that the Commission wrongly considered that the purpose of Article 87(3)(b) EC was comparable to that of Article 87(3)(c) EC and that of the rescue and restructuring guidelines

177. The applicant argues that the Commission, in examining the compatibility of the guarantee at issue with the common market under to Article 87(3)(b) EC, considered that the purpose of that provision was comparable, first, to that of Article 87(3)(c) EC and, secondly, to that of the rescue and restructuring guidelines. That constituted a serious error of assessment.

178. In support of that part of the plea, the applicant puts forward, in essence, two grounds of complaint, which the Commission challenges. The first ground of complaint is that the objective of remedying a disturbance in the economy of a Member State is always in the common interest. The second ground of complaint is that the Commission made two errors in the contested decision, respectively, by disregarding the purpose of Article 87(3)(b) EC, in so far as it examined the compatibility of the guarantee at issue with the common market in the light of the rescue and restructuring guidelines, and by not making authorisation of the guarantee at issue, in any event, subject to conditions less strict than those which may be imposed on the basis of Article 87(3)(c) EC.

– The first ground of complaint, alleging that the objective of remedying a disturbance in the economy of a Member State is always in the common interest

179. The applicant claims that the purpose of Article 87(3)(c) EC, in cases covered by the rescue and restructuring guidelines, is to help a firm which is in difficulty in a healthy economic environment. The existence of that environment is why, on the one hand, aid which may adversely affect trading conditions to an extent contrary to the common interest cannot be allowed under that provision and, on the other hand, the Commission must ensure that the effects on competition of the authorised aid are minimised. In contrast, the purpose of Article 87(3)(b) EC is to remedy a disturbance in the economy as a whole. This still takes place in the common interest and is a prerequisite for the existence of viable competition. The applicant concludes from this that authorisation of aid covered by the latter provision cannot be made subject to conditions seeking to protect competition.

180. In that respect, it should be noted, from the outset, that the Commission considered, in the contested decision, that the purpose of the guarantee at issue was to allow the restructuring of WestLB, which, due to its systemic importance, was necessary to remedy a serious disturbance in the German economy caused by a major financial crisis, which the applicant does not dispute.

181. Then, in so far as the present ground of complaint may be construed as meaning that the Commission, after having found that the guarantee at issue was intended to remedy a serious disturbance in the German economy, was obliged to consider that guarantee to be compatible with the common market and could not make its authorisation subject to the fulfilment of conditions, it must be noted, first of all, that it is clear from the actual wording of Article 87(3)(b) EC that the Commission, when it finds, as in the present case, that State aid is intended to remedy a serious disturbance in the economy of a Member State, is not, by that fact alone, obliged to consider that aid to be compatible with the common market.

182. Indeed, unlike aid covered by the exceptions to the general prohibition of State aid under Article 87(2) EC, which, under that provision, ‘shall be’ considered to be compatible with the common market, certain categories of aid provided for by Article 87(3) EC, including those intended to remedy a disturbance in the economy of a Member State, ‘may’ be considered to be compatible with that market.

183. Moreover, according to settled case-law, Article 87(3) EC confers on the Commission a discretion the exercise of which involves economic and social assessments which must be made in a Community context (Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 24; Case 310/85 Deufil v Commission [1987] ECR 901, paragraph 18; and Case C‑169/95 Spain v Commission [1997] ECR I‑135, paragraph 18).

184. Accordingly, that difference in wording noted by the applicant between Article 87(3)(c) EC, which allows the authorisation of some aid provided that it ‘does not adversely affect trading conditions to an extent contrary to the common interest’, and Article 87(3)(b) EC, which lays down no such condition, cannot lead to the conclusion that the Commission cannot assess the impact of aid authorised under the latter provision on the relevant market or markets in the European Union as a whole (see, to that effect, Joined Cases T‑447/93 to T‑449/93 AITEC and Others v Commission [1995] ECR II‑1971, paragraphs 138 to 143; see also, by analogy, Spain v Commission , paragraph 183 above, paragraph 17).

185. Finally, the power of the Commission, under the first paragraph of Article 88(2) EC, to decide that aid which is incompatible with Article 87 EC must be ‘altered’ necessarily implies that a decision authorising aid under Article 87(3)(c) EC may be made subject to conditions for ensuring that aid does not alter trading conditions in a way contrary to the general interest (Joined Cases T‑244/93 and T‑486/93 TWD v Commission [1995] ECR II‑2265, paragraphs 53 to 55).

186. It must therefore be held that Article 87(3)(b) EC does not prevent the Commission from making authorisation of the guarantee at issue subject to the fulfilment of conditions.

187. As regards the question whether those conditions can be designed to correct the effects of the authorised aid on competition, it is sufficient to point out that it is clear from paragraphs 68 and 69 of the contested decision — which are concerned with the obligation to sell — and from their central place in the section of the contested decision dealing with the examination of the measures provided for by the final restructuring plan for the purpose of ensuring the long-term viability of WestLB that authorisation of the guarantee at issue was made subject to fulfilment of the obligation to sell not in order to minimise its effects on competition, but in order to ensure the viability of WestLB.

188. The first ground of complaint must therefore be rejected.

– The second ground of complaint, alleging that the Commission made two errors in the contested decision, respectively, by disregarding the purpose of Article 87(3)(b) EC, in so far as it examined the compatibility of the guarantee at issue with the common market in the light of the rescue and restructuring guidelines, and by not making authorisation of the guarantee at issue, in any event, subject to conditions less strict than those which may be imposed on the basis of Article 87(3)(c) EC

189. First, the applicant submits that the Commission disregarded the purpose of Article 87(3)(b) EC, by examining the compatibility of the guarantee at issue with the common market in the light of the rescue and restructuring guidelines, although it had considered that that guarantee could remedy a serious disturbance in the German economy. Secondly, the applicant argues that the authorisation of aid on the basis of Article 87(3)(b) EC must, in any event, be subject to less strict conditions than the authorisation of aid on the basis of Article 87(3)(c) EC.

190. In that regard, it must be recalled that, as stated in paragraph 183 above, according to settled case-law, the Commission has wide discretion in its assessments concerning Article 87(3) EC. Judicial review by the EU Courts must, therefore, be limited to checking that the rules on procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment and no misuse of powers. It is not for the EU judicature to substitute its economic assessment for that of the Commission (see Case T‑152/99 HAMSA v Commission [2012] ECR II‑3049, paragraph 48 and the case-law cited).

191. In the context of that wide discretion, the Commission is justified in relying on the criteria it considers to be most appropriate in order to determine whether an aid can be considered compatible with the common market, provided that they are relevant having regard to Articles 3(g) and 87 EC, and in specifying those criteria in guidelines which are consistent with the Treaty. The adoption of such guidelines by the Commission is an instance of the exercise of its discretion and requires only a self-imposed limitation of that power, in accordance with the principle of equal treatment. By assessing specific aid in the light of guidelines, previously adopted by it, the Commission cannot be considered to exceed the limits of its discretion or to waive that discretion. On the one hand, it retains the power to repeal or amend any guidelines if the circumstances so require. On the other, those guidelines concern a defined sector and are based on the desire to follow a policy established by it (see, to that effect, Vlaams Gewest v Commission , paragraph 83 above, paragraph 89).

192. In that regard, in the first place, it should be noted that the Commission had, prior to the adoption of the contested decision, informed the Member States of the guidelines which, under the powers conferred on it by Article 87 EC et seq., it intended to apply to the aid granted to financial institutions on account of the financial crisis. This was, inter alia, the purpose of the Communication on the measures taken on account of the financial crisis, to which the Commission refers in recital 63 of the contested decision.

193. It is clear from paragraph 10 of that communication that the assessment of the compatibility with the common market, under Article 87(3)(b) EC, of the measures taken by the Member States on account of the financial crisis should follow the general principles laid down in the rescue and restructuring guidelines, even though ‘current circumstances’ might justify the approval of certain exceptional measures. In applying the rescue and restructuring guidelines in the contested decision, the Commission therefore complied with the self-imposed limitation of its discretion which it had previously adopted.

194. In the second place, it should be noted that the applicant has not provided any reason capable of establishing that the criteria laid down in the rescue and restructuring guidelines — which, at the time of the adoption of the contested decision, the Commission had considered the most appropriate for assessing whether the aid granted on account of the financial crisis could be considered compatible with the common market — are not relevant, under Article 3(g) EC and Article 87 EC, in relation to aid considered necessary to remedy a serious disturbance in the economy of a Member State.

195. Moreover, those guidelines may be considered as being, in principle, suitable for assessing the compatibility of that aid with the common market, in particular if the beneficiaries are, as in the present case, banks of systemic importance whose economic viability was compromised to the point of jeopardising their existence.

196. Thus, on the one hand, the fact that such aid is necessary to remedy a serious disturbance in an economy does not mean that it cannot be regarded as aid to a firm in difficulty, as provided for in paragraph 9 of the rescue and restructuring guidelines, according to which such a firm is one which is unable, whether through its own resources or with the funds it is able to obtain from its owner-shareholders or creditors, to stem losses which, without outside intervention by the public authorities, will almost certainly condemn it to going out of business in the short or medium term. As a matter of principle, a bank whose economic viability is compromised to the point of jeopardising its existence may be regarded as a firm in difficulty.

197. Moreover, the rescue and restructuring guidelines require, in order for restructuring aid to be considered compatible with the common market, that the beneficiary be subject to a restructuring plan enabling it to be restored to long-term viability within a reasonable timescale, that the aid be accompanied by measures to avoid undue distortions of competition and that it be limited to the strict minimum of the restructuring costs (respectively, paragraphs 35 to 37, 38 to 42 and 43 to 45 of those guidelines). However, the Commission is entitled to require that the authorisation of aid granted to banks of systemic importance, on account of the financial crisis, must be subject to the fulfilment of those conditions, even if the aid is intended to remedy a serious disturbance in the economy of a Member State.

198. As regards, first of all, the requirement of a restructuring plan enabling those banks to be restored to long-term viability within a reasonable timescale, the Commission is, in principle, justified in finding that the restructuring of a bank of systemic importance whose viability is not assured cannot help to remedy on an enduring basis the disturbances caused in the economy of a Member State by the financial difficulties faced by that bank or by the financial sector as a whole. It would be difficult for that bank to conduct business activities in a normal way, since its relationships with its customers, creditors and partners would be adversely affected by the uncertainty of the continuity of its business activities and by the fragility of its financial position. Given the systemic importance of that bank, the inability to conduct those business activities in a normal way could have a negative effect on the entire national financial system which could spread to the entire economy.

199. As regards, next, the requirement that the aid be accompanied by measures to avoid undue distortions of competition, it should be noted that, in the assessment of the effect of aid on the relevant market or markets and, in particular, of its impact on trading conditions, which the Commission must make when applying Article 87(3)(b) EC, the latter may take into account the foreseeable effects of the aid on competition and intra-Community trade (see, to that effect, AITEC and Others v Commission, paragraph 184 above, paragraphs 138 to 143). Accordingly, it must be held that the Commission may make restructuring aid subject to the fulfilment of conditions seeking to minimise the effect of that aid on competition.

200. As regards, finally, the requirement that the aid must be limited to the strict minimum of the restructuring costs, it should be noted that, as a derogation, Article 87(3)(b) EC must be interpreted narrowly (Joined Cases C‑57/00 P and C‑61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I‑9975, paragraph 98). Accordingly, it is not possible to hold that the Commission infringes that provision where it decides to authorise only aid, which is limited to the strict minimum, necessary to ensure the restructuring of the beneficiary so that it can sufficiently develop its business with a view to remedying a serious disturbance in the economy.

201. In the third place, it should be noted that the rescue and restructuring guidelines lay down a number of specific criteria applicable to the banking sector [see paragraph 6 of the Communication on the measures taken on account of the financial crisis and the footnote referred to in paragraph 25(a) of the rescue and restructuring guidelines].

202. In the light of all the foregoing observations, it is necessary to hold that the Commission was entitled, at the time of adopting the contested decision, to apply Article 87(3)(b) EC while examining the compatibility of the restructuring aid granted to systemically important banks in difficulty in the light of the rescue and restructuring guidelines.

203. Therefore, in order to determine whether the Commission could, in the present case, apply the rescue and restructuring guidelines, it is necessary to examine whether it could consider, first, that WestLB was a systemically important bank in difficulty and, secondly, that it had received restructuring aid.

204. In that regard, it should be noted, first of all, that it is common ground between the parties that the immediate purpose of the guarantee at issue was to avoid the negative impact of the deterioration in the market value of the EUR 23 billion portfolio on WestLB’s balance sheet. The parties state in essence that, if that measure, or any other support measure having equivalent effect, had not been adopted, WestLB would have experienced serious financial difficulties capable of jeopardising the continuity of its banking activities in the short-term and even of leading to its disappearance. Accordingly, the Commission could consider without committing an error that WestLB was a firm in difficulty as provided for in paragraph 9 of the rescue and restructuring guidelines, which it had already stated in paragraphs 44 and 45 of the provisional decision and which, furthermore, was challenged neither by the Federal Republic of Germany nor by the applicant.

205. Contrary to what the applicant argued at the hearing, the fact that the guarantee at issue was granted by an owner of WestLB does not mean that that bank cannot be regarded as a firm in difficulty, as provided for in paragraph 9 of the rescue and restructuring guidelines.

206. If the applicant’s argument were accepted it would automatically prevent a large number of public undertakings from being classified as firms in difficulty. However, it is apparent that the purpose of paragraph 9 of the rescue and restructuring guidelines is not to exclude public undertakings from its scope, but to distinguish between undertakings incapable of ensuring their continuity in the absence of the grant of State aid, which are classified as firms in difficulty, and undertakings for which such aid is not necessary.

207. Therefore, the fact that the guarantee at issue was granted by an owner of WestLB has no bearing on the question whether the latter could be regarded as a firm in difficulty. The only relevant question in that regard is whether that bank could overcome its economic difficulties in the absence of public support which can be classified as State aid, a question that is not raised by the applicant.

208. Next, it should be recalled that the applicant itself argued that WestLB was of systemic importance to the German economy.

209. Finally, it should be noted that the applicant did not dispute that the creation of the bad bank may be regarded as a restructuring of WestLB or that the guarantee at issue may be regarded as restructuring aid.

210. In those circumstances, it must be held that the examination of the compatibility of the guarantee at issue with the common market could be carried out in the light of the rescue and restructuring guidelines.

211. Therefore, in so far as the applicant’s arguments may be interpreted as arguing that the Commission erred in law in that it examined the compatibility of the guarantee at issue with the common market in the light of those guidelines, those arguments must be rejected.

212. In any event, as the Commission correctly argues, it should be noted that the Commission, in the contested decision, does not confine itself to examining the compatibility of the guarantee at issue with the common market in the light of the conditions contained in the rescue and restructuring guidelines. It is clear from paragraphs 63 and 76 to 79 of that decision that the Commission waived the requirement that WestLB provide an own contribution of at least 50% of the restructuring costs, even though that minimum contribution was, in principle, provided for in paragraph 44 of those guidelines for the restructuring of large firms. The Commission considered that, in view of WestLB’s external debts, it would be practically impossible to achieve that target for the own contribution. In addition, the Commission noted that it may not be appropriate in the context of a systemic crisis in the financial markets to require a precise quantification of WestLB’s contribution.

213. Therefore, the Commission’s decision to authorise the granting of the guarantee at issue for WestLB under the derogation from the prohibition of State aid provided for by Article 87(3)(b) EC had the effect that the authorisation is subject in some respects to conditions less strict than those normally provided for by the rescue and restructuring guidelines, contrary to what the applicant claims, in essence.

214. Accordingly, the second ground of complaint must also be rejected.

215. In the light of all the foregoing considerations, this part of the plea must be rejected.

The second part, put forward in the alternative, alleging that the Commission wrongly imposed in the contested decision conditions stricter than those which may be imposed as a result of the application of the rescue and restructuring guidelines in combination with Article 87(3)(c) EC

216. The applicant submits that the contested decision should be annulled even if it is held that the derogations provided for in Article 87(3)(b) and (c) EC have the same purpose, since in that decision the Commission imposed conditions stricter than those which may be imposed under the rescue and restructuring guidelines. In that regard, it produces a comparative table setting out a number of decisions taken by the Commission before and during the financial crisis relatin