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

The analysis of the decisional practice reveals the following. In 45 decisions, it was mentioned that the beneficiary bank would improve its funding strategy. Interestingly, there are also some banks that did not have funding problems. As is shown in the table in Annex VII, there are 9 decisions that indicated that the bank did not have funding problems. Thus, in 54 decisions (i.e. 45+9), the Commission explicitly took into account the relevant characteristic. By contrast, there are 36 decisions (of in total 90 cases), in which the Commission did not explicitly take into account the current relevant characteristic.1 This is surprising, given the fact that there are 9 decisions in which the Commission explicitly mentioned the absence of the current relevant characteristic. If the relevant characteristic would also be absent in the 36 cases listed above, then the omission to mention this absence would amount to an inconsistency between these 36 decisions and the 9 decisions (which do mention the absence of funding problems).

Under this assumption, the 36 cases correspond to “situation A/O” of the matrix (introduced in section 11.2.2.2), while the 9 cases correspond to “situation A/M” of the matrix. Situation A/O (i.e. the omission to mention the absence) can be justified, but only when it is obvious that the omission implies absence of the relevant characteristic. However, the fact that there are decisions in which the absence is explicitly mentioned (i.e. “situation A/M”) means that it can never be obvious that the omission of the characteristic means absence of the characteristic. Thus, the co-existence of “situation A/M” and “situation A/O” implies an inconsistency.