8.1.3 Where can the two stages of the compatibility-assessment be found?

In principle, the pattern is as follows: the first stage of the assessment can be found in the Rescue Decision, whereas the second stage of the assessment can be found in the Restructuring Decision.1

However, deviations from this pattern are possible. In that regard, it should be recalled that aid can be granted as ad hoc aid or under a bank support scheme. The compatibility of bank support schemes is assessed by the Commission in a decision. In these decisions, the Commission assesses whether the scheme is appropriate, necessary and proportionate. This corresponds to the first stage of the compatibility-assessment. State aid granted under an approved bank support scheme does not have to be assessed again: since the scheme is approved, the State aid is already considered to be appropriate, necessary and proportionate.2

Banks that benefited from aid under a bank support scheme did not always have to submit a restructuring plan. In these cases, the compatibility-assessment only comprised one stage: i.e. the assessment of the appropriateness, necessity and proportionality of the aid. This assessment took place in the decision in which the support scheme was approved; there is no separate Rescue Decision for the beneficiary bank.3

In some instances, banks that benefited from State aid under a scheme had to submit a restructuring plan.4 In these cases, the Commission adopted a Restructuring Decision (in which it assessed the compatibility of the aid, taking into account the restructuring plan; i.e. the second stage of the compatibility- assessment). Thus, in some cases, there is only a Restructuring Decision and not a Rescue Decision.5

Sometimes, the picture is more complicated. This is the case when the beneficiary bank has benefited from several aid measures. For instance, Banco Mare Nostrum (BMN) had received guarantees on bonds issued under the guarantee scheme (“measure A”) and it was recapitalised under the FROB recapitalisation scheme (“measure B”). These FROB I preference shares were converted into normal equity (“measure C”). In 2012, BMN was again recapitalised (“measure D”). In addition, BMN benefited from an asset relief measure (“measure E”). For all these aid measure, it had to be assessed whether they were compatible with the internal market on the basis of Article 107(3)(b) TFEU. This assessment did not take place in the same decision. This is illustrated by the following recital from the Restructuring Decision on BMN:

It should be noted that additional State aid that is granted before the Commission has adopted a Restructuring Decision, has to be notified individually. However, this additional State aid is not subject of a separate decision. Rather, it is taken into account in the Commission’s final decision on the bank.7

In the Restructuring Decision on BMN, all the measures (A-E) were examined as restructuring aid under the Restructuring Communication, in light of the restructuring plan. This concerns the second stage of the compatibility- assessment. Also in this decision, the Commission conducted an assessment of the appropriateness, necessity and proportionality of measures C, D and E; i.e. the first stage of the compatibility-assessment. So with respect to measures A and B, the two stages of the compatibility-assessment are in separate decisions, while with respect to measures C, D and E, the two stages of the compatibility- assessment are both in the same decision. This illustrates that a Restructuring Decision can also include the first stage of the compatibility-assessment.