State aid to banks (IVOR nr. 109) 2018/5.9:5.9 The case of Banco Privado Português (II)

State aid to banks (IVOR nr. 109) 2018/5.9

5.9 The case of Banco Privado Português (II)

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Case C-667/13, Estado português v. Banco Privado Português SA and Massa Insolvente do Banco Privado Português SA

This case also concerned the State aid to Banco Privado Português (BPP). But unlike the judgment discussed in the previous section (which concerned a direct action), the judgment discussed in the present section was a preliminary ruling.1

By the BPP-decision, the Portuguese State was ordered to recover the aid granted to BPP. The attempt by the Portuguese State to recover the aid from BPP led to proceedings before the Tribunal do Com é rcio de Lisboa (Lisbon Commercial Court) between the Portuguese State and BPP/Massa Insolvente do Banco Privado Português. Massa Insolvente do Banco Privado Português argued that the BPP-decision was unlawful and that Portugal’s claim (resulting from the BPP-decision) had thus no legal basis. The Tribunal do Com é rcio de Lisboa had doubts as to the validity of the BPP-decision and therefore referred several questions to the Court of Justice for a preliminary ruling. On 5 March 2015, the Court rendered its judgment.

One of the questions raised by the Tribunal do Com é rcio de Lisboa was whether the BPP-decision was based on a contradictory statement of reasons since it stated on the one hand that the aid became unlawful as from 6 June 2009, while it stated on the other hand that the same aid had to be held to be incompatible with the internal market as from 5 December 2008. In that regard, the Court held that the fact that the BPP-decision mentions different dates from which the State aid must be regarded as unlawful, on the one hand, and incompatible with the internal market, on the other, does not disclose any contradiction in the statement of reasons underlying that decision.

Another noteworthy question related to the argument raised by BPP that the Commission had concluded that the guarantee was incompatible on the basis of non-compliance on purely procedural grounds, namely the fact that the Portuguese Republic did not submit a restructuring plan for BPP within the six- month period. This question concerns the relevance of submitting a restructuring plan and will be discussed in section 10.2.

The Court concluded that examination of the questions referred by the Tribunal do Com é rcio de Lisboa had disclosed nothing capable of affecting the validity of the BPP-decision.

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