6.7.3 Consistency

In my view, the principle of equal treatment requires that the Commission consistently assesses whether the relevant characteristics are present in the case at hand. Otherwise, the decisional practice would be arbitrary. Admittedly, restructuring measures are tailor-made, but a tailor-made approach should not result in an arbitrary approach.1 This PhD-study takes the view that the Commission’s decisional practice cannot be in line with the principle of equal treatment if the decisional practice is not based on a well-defined State aid control framework.2 The principle of equal treatment thus requires some kind of assessment framework. In the context of State aid to banks, the relevant assessment framework is the Crisis Framework. The Crisis Framework (which is based on the general framework of article 107 TFEU) contains general compatibility-criteria. These general compatibility-criteria are broken down into more specific assessment criteria.3 These specific assessment criteria effectively correspond to the relevant characteristics. To give an example, if the characteristic “change of senior management” is welcomed by the Commission in a certain decision, then this characteristic should be an assessment criterion that has to be taken into account in all State aid cases. The aim of this PhD-study is to find out if the relevant characteristics are consistently taken into account by the Commission.

In addition, this PhD-study investigates how these relevant characteristics are elaborated by the Commission. For instance, the fact that the beneficiary bank is subject to an acquisition ban is a relevant characteristic.4 Importantly, acquisition bans are characterised by various modalities, such as the scope of the ban, the duration of the ban and exceptions to the ban. These modalities can be considered as the ‘characteristics’ of the relevant characteristic. In my opinion, the Commission should not only take into account the acquisition ban (i.e. the relevant characteristic), it should also take into account the modalities of the acquisition ban (i.e. the ‘characteristics’ of the relevant characteristic). Since the term “characteristics of the relevant characteristic” might be confusing, I will refer to it as “the elaboration of the relevant characteristic”. The elaboration of the relevant characteristics essentially means that the Commission should go ‘one level deeper’.

Another example is the fact that the senior management of the bank has been replaced. This is a relevant characteristic.5 But what exactly constitutes “senior management”? “Senior management” is a vague term that may be interpreted in various ways. Divergent interpretations of “senior management” would be contrary to the principle of equal treatment. The principle of equal treatment thus not only requires that the relevant characteristics are consistently used as assessment criteria, it also requires that the relevant characteristics are elaborated in a consistent manner.

Thus, in this PhD-study, the principle of equal treatment is effectively interpreted by means of the principle of consistency. This PhD-study takes the view that the principle of equal treatment is infringed when there are inconsistencies. As I have set out above, an inconsistency can occur at two levels. The first level concerns the question whether the Commission has consistently assessed whether the relevant characteristics are present in the case at hand. The second level concerns the way how the relevant characteristics are elaborated in the decisions.

A consistent approach means that the approach should not be arbitrary. It does not mean that the approach can never change. Changes are allowed if they are legitimate. An evolving State aid control policy is thus possible. This was also recognised by Advocate-General Wahl in his Opinion in Case C-526/14:

I agree with this statement. Although this statement was made in the context of the principle of protection of legitimate expectations, it is also relevant to the principle of equal treatment (as interpreted in this PhD-study). Therefore, in my opinion, the principle of equal treatment does not necessarily have to be infringed when the Commission does not take into account a certain characteristic (which it had taken into account in earlier bank State aid cases), when this not-taking into account is due to a policy change. Nevertheless, this policy change should be justified and explained.

To some extent, the principle of equal treatment might overlap with other general principles of law, such as the principle of protection of legitimate expectations. It might even overlap with the obligation to state reasons. The aim of this PhD-study is not to provide a theoretic discussion of how the principle of equal treatment interacts and overlaps with other general principles of law. This PhD-study takes a pragmatic approach towards the principle of equal treatment, rather than a dogmatic approach. This PhD-study takes as a starting point that the decisional practice of the Commission should be ‘fair’. The aim of this PhD-study is not to philosophise on when the decisional practice is ‘fair’. As explained in the present chapter, I am of the opinion that the decisional practice cannot be considered ‘fair’ when it infringes the principle of equal treatment because of inconsistencies.

A striking observation is that the Commission attaches importance to consistency. In many decisions, the Commission referred to other decisions in order to underline that its decisional practice is consistent. This can be illustrated by the decision on the Greek bank ATE. In this decision, the Commission concluded that the sale of the viable activities of ATE Bank to Piraeus Bank did not constitute aid to the buyer (i.e. Pireaus Bank). In footnote 37 of the decision, the Commission referred to similar cases in which the sale did not constitute aid to the buyer.7

In some decisions, the Commission makes an effort to explain the difference between the case at hand and similar cases. To give an example, in the decision on Dunfermline, the Commission explained the key difference between the case of Dunfermline and the similar – but different – case of Bradford&Bingley.8 This illustrates that the Commission is concerned with treating cases consistently.

Another example is the decision on Amagerbanken, in which the Commission noted the following: “In line with the Restructuring Communication and the Commission’s decisional practice in the Kaupthing Luxemburg and Northern Rock decisions, burden-sharing is considered to be sufficient when the shareholders lost control of the bank and all financial stakes therein without any compensation”.9

These examples illustrate that the Commission attaches importance to consistency. This is a striking observation. What makes this observation even more striking is that according to established case-law, the Commission is not bound by its previous decision-making practice. Indeed, as was discussed in section 5.20, the CJEU has held that “it is only in the context of Article 87(3)(b) EC that it is necessary to assess the legality of a Commission decision declaring that new aid does not fulfil the requirements for application of that derogation, and not in the light of its previous decision-making practice, assuming that the latter is established”.

The fact that the Commission attaches importance to consistency provides a justification for the relevant-characteristics approach (which requires the Commission to consistently take into account the relevant characteristics).