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NEELIE

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LID VAN DE EUROPESE COMMISSIE

Brussels, 2 October 2009
D(2009)380

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I ^ / A O S A ^ ^ S m C e t h e C o m m i s s i o n took a positive conditional decision in the
Fortis/ABN AMRO merger. The condition for the completion of the merger is the sale of a
series of assets, which I refer to for convenience as HBU. Before the divestment is completed
Fortis and ABN are not allowed to start integration. I believe that it is important for the
employees of ABN, HBU and Fortis, for the stability of the Dutch banking market and for the
wider public that a solution is found rapidly. Discussions started a long time ago with
Deutsche Bank and they are continuing.
Yesterday, I learnt that important progress has been made in your negotiations with Deutsche
Bank about the acquisition of HBU and that very constructive proposals have been put
forward in relation to the few outstanding issues, so that the perspective of an agreement
which is satisfactory to both sides is within sight.
The Commission has always been supportive of the Dutch government in that context and
has prolonged the divestment periods several times in accordance with its requests We have
nonetheless heard from your services that the Dutch State may consider asking for a further
prolongation of many weeks, in order to examine the possibility of alternatives to a sale of
HBU to Deutsche Bank - alternative purchasers and alternative solutions for the purpose of
complying with the commitments entered into for the Fortis/ABN AMRO merger decisionand that it may consider it necessary to present various options to the Dutch Parliament For
that reason, I feel it is important to bring to your attention a number of elements that may
assist you in making your decision whether to rapidly reach agreement with Deutsche Bank.
First, your services informed the Commission that
' has expressed an interest in
acquiring HBU. However, as you will recall, the purchaser requirements in the commitments
are quite clear in that, inter alia, the purchaser has to have the financial resources, proven
expertise and incentive to maintain and develop the business to be divested as a viable and
competitive force. The purchaser has also to be able to serve internationally active corporate
customers through in-house product capabilities, and has to provide for brand recognition in
or outside the Netherlands. Given the characteristics of
, it is very unlikely that
the Commission would consider that it could meet these requirements and be approved as a
suitable buyer of HBU. Besides, from the experience of the negotiations with Deutsche Bank,
trying to start alternative discussions at this stage in the process could prove very complex and
uncertain and could substantially delay any solution.
Second, we have understood that the Dutch State is willing to explore the possibility of selling
the respective Fortis entities, i.e. Fortis Commercial Banking and Fortis Commercial Finance,
to
. This wouM correspond to an alternative remedy offer, different from the one

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contained in the Commission's decision. Accepting a divestment of Fortis Commercial
Banking and Fortis Commercial Finance as an alternative remedy would require a new
decision of the Conimission. There is no guarantee that a market test would consider the
alternative remedy as suitable.
Moreover, on the basis of the documents sent to my services this week, we understand that a
large amount of sensitive commercial information, which would not be available to
competitors, seems to have been exchanged between Fortis Netherlands and ABN AMRO in
the framework of the integration planning exercise. Without prejudice to our final position on
the legality of such sharing of information, this in any event makes it doubtful whether an
alternative remedy consisting of Fortis Commercial and Fortis Finance could be considered
suitable either by the Commission or by the market for the purposes of establishing a strong
competitor in the relevant market segments.
Besides, a sale of Fortis entities to^
i_ would currently seem to run into a number of
difficulties, in particular when compared with the prospect of a sale to an interested and
suitable purchaser for HBU as foreseen under the current remedy, which could in addition be
implemented within a short time-frame. A divestment of part of Fortis Bank Netherlands to
would raise very significant uncertainties, in particular given the conditions set
outln theT Commission decisions approving the state aid to
As you will be
aware, the Commission considered that the sale of
f was a very
important measure in order to limit the distortion of competition created by the state aid
granted to •
. For the Commission to be in a position to authorise
> to
acquire parts of Fortis Bank Netherlands, it is likely that alternative commitments wouldTKave
to be obtained from the bank, which have not been explored to date and make the prospect of
a rapid solution on the basis of this alternative remedy rather hypothetical.
Third, and by contrast to the foregoing examples, let me remind you that the Commission had
in September 2008 approved Deutsche Bank as a suitable buyer in a decision submitted to you
and that it received merger control clearance in case M.5296 Deutsche Bank/ABN AMRO
Assets. There is no reason why the Commission would not approve Deutsche Bank again if
you would be able to rapidly find an agreement with this bank on the sale of HBU. The offer
of Deutsche Bank appears within reach and could be negatively affected if it were subject to
long delays.
The Management of NewBank and the Monitoring Trustee have both made clear that any
further extension of the deadline for implementation of the remedy must be limited to the very
minimum necessary to bring clarity to customers and staff, in order not to fatally undermine
the viability of this entity which was originally set up only to function for a limited
transitional period. I fully share this concern.
Under these circumstances, it seems vital to rapidly reach a solution in the current
negotiations on the essential terms of the sale of HBU, which could be followed by a further
extension of the remedy deadline for the minimum period necessary to conclude a formal sale
agreement.

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