5.20.3 The case of Banco Privado Portugues (BPP)

By the seventh plea in law, the applicant (in case T-487/11) alleged infringement of the right to ‘fair treatment’. In support of this plea in law, the applicant referred to several other bank State aid decisions. In particular, the applicant argued that in the decision on Banco Português de Negócios (BPN), the Commission was more ‘tolerant’ than in the case of BPP, even though BPN and BPP were in a comparable situation. The applicant raised three arguments to support its view that BPN and BPP were in a comparable situation: first, the two State aid measures in question had been notified at almost the same time; second, in BPN’s case, the Portuguese authorities had also been slow to submit a restructuring plan; third, the State aid measures in the case of BPN were much more significant from a financial point of view.

In its judgment of 12 December 2014, the General Court held that this plea in law (alleging infringement of the right to ‘fair treatment’) should be interpreted as referring to the principle of equal treatment.1 The General Court recalled the CJEU-definition of the principle of equal treatment and considered that the applicant had not demonstrated, to the requisite legal standard, that BPN and BPP were in a comparable situation. In particular, the General Court held that BPN eventually did present a restructuring plan, whereas BPP failed to do so. This was an essential difference between the two cases.

In addition, the General Court considered that the mere notification at more or less the same time of the aid measures planned by the Portuguese authorities to assist these two banks was not decisive. Furthermore, in BPN’s case, the Commission initiated the formal examination procedure not because there was no restructuring plan at all, but because the initial restructuring plan submitted had become obsolete owing to the sale of BPN and the Commission had to assess a revised plan at a later stage.

The General Court concluded that the key differences in the respective situations of BPN and BPP warranted the finding that the situations were not comparable and that, therefore, the principle of equal treatment as relied on by the applicant could not apply in the present case. The plea in law was therefore rejected.2