Case T‑319/11

ABN Amro Group NV

v

European Commission

‛State aid — Financial sector — Aid intended to remedy a serious disturbance in the economy of a Member State — Article 107(3)(b) TFEU — Decision declaring the aid compatible with the internal market — Conditions for approval of the aid — Acquisition ban — Whether consistent with the Commission communications concerning aid to the financial sector in the financial crisis — Proportionality — Equal treatment — Principle of sound administration — Obligation to state reasons — Right to property’

Summary — Judgment of the General Court (Third Chamber), 8 April 2014

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken in his regard — Whether a summary statement of reasons is sufficient

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Examination of restructuring measures planned by the undertaking benefiting from the aid — Comparison with measures adopted by other undertakings in the same sector — Burden of proof

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid to the financial sector in the financial crisis — Power to revoke or modify a Commission decision

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid to the financial sector in the financial crisis — Limitation to the strict minimum needed — Acquisition ban — Scope and duration

In the application of Article 107(3) TFEU, the Commission has a wide discretion the exercise of which involves economic and social assessments which must be made in a European Union context. The Commission may, in order to exercise that discretion, adopt rules of guidance, such as the communications, so long as those rules do not depart from the provisions of the Treaty. In that regard, in adopting rules of conduct and announcing by publishing them that it will henceforth apply those rules to the cases to which they relate, the Commission itself imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as the principles of equal treatment or the protection of legitimate expectations. Thus, in the specific area of State aid, the Commission is bound by the guidelines and communications that it adopts, in so far as they do not depart from the rules in the Treaty and are accepted by the Member States. It is therefore for the EU judicature to determine whether the Commission has observed the rules which it adopted. (see paras 27-29)

The Commission does not infringe the Restructuring Communication by holding that the principle of limiting State aid, granted to an undertaking in the banking sector to remedy a serious disturbance in the economy of a Member State, to the minimum necessary enables it to impose a ban on acquiring shareholdings of more than 5%, imposed for a maximum duration of five years, under the conditions set out below. First, the acquisition ban does not relate solely to shareholdings in businesses active in the financial sector or in the Member State of the aid beneficiary, but could potentially relate to any acquisition, the objective being to ensure that the money of the bank receiving the aid should be used for the repayment of that aid prior to the bank making any acquisitions. The acquisitions must have the aim of guaranteeing the viability of the aided entity. Therefore, any acquisition not linked to the restructuring process can as such be identified as market-distorting. That would be the case with acquisitions, financed by means of State aid, which are not strictly necessary to restore the viability of the beneficiary, and therefore infringe the principle that aid must be limited to the strict minimum. Second, the prohibition on acquiring shares in other undertakings or effecting new investments is not restricted to controlling shareholdings. Finally, concerning the duration of the prohibition, whilst the Restructuring Communication does not define a specific duration for the acquisition bans which are to be imposed with the aim of ensuring that the aid is limited to the minimum necessary, since point 23 of the Restructuring Communication refers to the restructuring of the beneficiary, it can be inferred that such a measure may be regarded as well founded for as long as that remains the context. (see paras 40, 42-46, 54, 63, 169, 177)

The Commission’s power to authorise acquisitions, subsequent to a decision to approve State aid, granted to an undertaking in the banking sector to remedy a serious disturbance in the economy of a Member State, and which includes an acquisition ban, stems from its general powers as an administrative authority which, as the author of a decision on that matter, has the power to revoke it or modify it. The lack of a specific mention of that power in such a decision cannot therefore be categorised as an infringement of the Restructuring Communication. (see para. 66)

As a general principle of EU law, the principle of proportionality is a criterion for the lawfulness of any act of the institutions of the European Union, including decisions taken by the Commission in its capacity of competition authority. The legality of an acquisition ban, imposed on an undertaking in the banking sector as a condition for the grant of State aid in order to remedy a serious disturbance in the economy of a Member State, cannot be assessed by isolating that measure from its context, but must necessarily be assessed in the context of the restructuring plans submitted by the Member State concerned. Further, having regard to the nature of the investigation as to compatibility of State aid with the internal market, the Commission enjoys a wide discretion in respect of its assessment of, inter alia, the question whether a combination of measures enables it to hold that aid is compatible with the internal market, and consequently review by the Court in that regard is necessarily limited. (see paras 75, 80, 81)

In order to assess compliance with the principle of equal treatment in the case of decisions authorising State aid in the banking sector on the basis of a restructuring plan and subject to various conditions, even if the possibility of comparing specific restructuring measures and conditions laid down by different decisions in abstracto is not inconceivable, it remains the case that the restructuring of an undertaking and the conditions subject to which aid is granted must be targeted on the specific problems which are characteristic of that undertaking and that the experience of other undertakings, in different contexts, may be irrelevant. In any event, if the Court were to be called upon to examine the comparability, with an applicant’s situation, of situations at issue in other Commission decisions, the burden of proof as to whether or not they are comparable falls on the applicant. (see paras 113, 114, 184, 185)

See the text of the decision. (see paras 128, 213, 214)

In State aid matters, a statement of reasons which is relatively succinct and consists largely of a reiteration of the principles of the Restructuring Communication is acceptable, where it discloses in a clear and unequivocal fashion the Commission’s reasoning, in particular because the Commission applied a principle set out in that communication. Moreover, non-examination of alternative measures proposed by the applicant is justified where it follows from the reasons advanced that a strict application of the principles referred to, such as limitation of aid to the strict minimum, was necessary, which therefore ruled out the possibility of more flexible alternative approaches. Moreover, even if the Commission communications concerning aid to the financial sector in the context of the financial crisis have led to the formulation of a new policy, the Commission is not thereby placed under an enhanced obligation to state reasons. Finally, in any event, the extent to which reasons are stated in another decision is of little relevance to the Court’s being in a position to assess whether the statement of reasons in the contested decision meets the requisite legal standard. (see paras 135, 136, 139, 141)

See the text of the decision. (see para. 138)