Einde inhoudsopgave
State aid to banks (IVOR nr. 109) 2018/8.1.1
8.1.1 Assessment in two stages
mr. drs. R.E. van Lambalgen, datum 01-12-2017
- Datum
01-12-2017
- Auteur
mr. drs. R.E. van Lambalgen
- JCDI
JCDI:ADS592962:1
- Vakgebied(en)
Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht
Voetnoten
Voetnoten
The tables in Annex IV provide an overview of the compatibility-assessment and indicate in which instances the compatibility-assessment comprises two stages.
The first mention of “appropriateness, necessity and proportionality” can be found in the decision on the Danish guarantee scheme of 10 October 2008 (i.e. a few days before the adoption of the 2008 Banking Communication). In that decision, the Commission held the following: “Although there is no established practice as to the conditions for compatibility of aid granted under Article 87 (3) b) EC, it must be stressed that in order for such aid to be compatible, any aid or aid scheme must comply with general criteria for compatibility under Article 87 (3) EC, viewed in the light of the general objectives of the Treaty and in particular Article 4 (2) EC, which imply compliance with the following conditions: appropriateness, necessity and proportionality.” (para. 41). These three criteria also appear – though not in the exact same words – in point 15 of the 2008 Banking Communication.
The majority of the bank State aid cases are characterised by a two-stage compatibility-assessment. As will be explained in the following subsection, this changed with the adoption of the 2013 Banking Communication. However, since most cases were assessed under the Crisis Communications before the adoption of the 2013 Banking Communication, this chapter takes the two-stage compatibility-assessment as a starting point.1
The two-stage compatibility-assessment entailed the following. First, the Commission would assess whether the aid was appropriate, necessary and proportionate. State aid could only be declared compatible with the common market if the aid was appropriate, necessary and proportionate.2 The conclusion that the State aid was appropriate, necessary and proportionate would result in the temporary approval of the aid. The final approval was dependent on whether the restructuring plan met the three restructuring objectives (viability, burden- sharing and competition distortions). So the assessment takes two stages, which can be described in the following manner: the first stage of the assessment mainly concerns the aid, while the second stage of the assessment mainly concerns the restructuring plan. This chapter focusses on the first stage; i.e. the assessment of whether the aid is appropriate, necessary and proportionate.