5.8 The case of Banco Privado Português (I)

This case concerned the State aid to Banco Privado Português (BPP). The defining feature of this case is that Portugal failed to submit a restructuring plan.

On 5 December 2008, the Portuguese State decided to grant BPP a State guarantee. This State aid measure was authorised by the Commission for a period of six months on the basis of Article 87(3)(b) EC, on the assumption that the Portuguese authorities would implement their commitment to submit a restructuring plan within six months (i.e. by 5 June 2009). Portugal failed however to present a restructuring plan within this timeframe. As a result, the aid became unlawful since 6 June 2009. Moreover, since the restructuring plan was essential to the compatibility of the State aid measure1, the failure to submit such a restructuring plan resulted in the aid measure being incompatible. In the decision on BPP of 20 July 2010 (“the BPP-decision”), the Commission ordered the Portuguese State to proceed with an immediate and effective recovery of the aid.

BPP and Massa Insolvente do Banco Privado Português2 requested the Court to annul the BPP-decision. The applicants had raised several pleas in law. Two of them – the fourth and sixth plea in law – concerned the order for recovery. By the fourth plea in law, the applicants alleged infringement of Article 108(2) TFEU. By the sixth plea in law, the applicants essentially claimed that the principles of legal certainty and of the protection of legitimate expectations precluded the order for recovery of the aid in question, at the very least as regards the recovery ordered for the period between 5 December 2008 and 5 June 2009, which was covered by the authorisation given in the decision of 13 March 2009.3

The seventh plea in law is worth mentioning. By this plea in law, the applicants alleged infringement of the right to ‘fair treatment’. The Court held that this plea in law must be construed as referring to the principle of equal treatment.4 This will be discussed in more detail in section 5.20.3.

On 12 December 2014, the General Court rendered its judgment. The General Court concluded that the Commission had not committed any manifest errors of assessment or errors of law in the application of Article 107(3)(b) TFEU, in founding that, since no restructuring or liquidation plan had been submitted as of 5 June 2009, the State guarantee as well its extension beyond 5 June 2009 had to be declared incompatible with the internal market.5 All the pleas in law were dismissed. Consequently, the General Court dismissed the action in its entirety.

The applicants brought an appeal against the judgment of the General Court. On 15 October 2015, the Court rendered its judgment,6 by which it dismissed the appeal. It is noteworthy that in this judgment the Court referred many times to its judgment of 5 March 2015 in case C-667/13. This judgment will be discussed in the following section.