12.3.2 Has the Commission consistently taken into account this relevant characteristic?

The standard consideration that the beneficiary bank is divesting profitable non-core subsidiaries is only found in decisions in the C-context. The term “divestment of subsidiaries” is not used in the other contexts. Nevertheless, banks in the other contexts are using own resources to finance the restructuring. Indeed, in the S/T/W-context, the beneficiary bank is split into a bad bank (to be wound-down) and a good bank (to be sold). The sale of the beneficiary bank’s sound parts (i.e. the good bank) constitutes an own contribution of the beneficiary bank to its restructuring. Several decisions in the S/T/W-context explicitly refer to point 24 of the Restructuring Communication (which requires the bank to use its own resources to finance restructuring).1 By the same token, in the T-context and W-context, all of the beneficiary bank’s assets – thus not only the non-core activities – are sold or wound-down. This also constitutes an own contribution of the bank.2

To sum up, the very specific fact that the bank is divesting subsidiaries is only found in decisions in the C-context, while the more general observation that the bank is using own resources to finance the restructuring can be found in almost any decision. An overview of these decisions is provided in the table in Annex XII.

Remarkably, the decision on the Austrian bank BAWAG does not mention whether the bank is divesting activities in order to comply with point 24 of the Restructuring Communication (which requires the bank to use its own resources to finance restructuring). Even more remarkable is the observation that the decision indicates that “as part of the measures to limit distortions of competition, BAWAG will divest its 10% holding in the Hungarian MKB BANK”.3 The decision further indicates that MKB BANK is a profit-making bank. In my opinion, the divestment of its holding in MKB BANK is not only a compensatory measure; it would also qualify as an own contribution of BAWAG. Hence, the divestment should have been mentioned in the decision as an own contribution by the beneficiary bank. The omission to mention this divestments as an own contribution constitutes an inconsistency (since in almost every other decision, the Commission explicitly welcomes divestments as an own contribution). Nevertheless, since the Commission concluded that the restructuring plan included a sufficient own contribution, this inconsistency did not lead to an unfair treatment of BAWAG.