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

The analysis of the Commission decisions reveals the following pattern. In all the cases in which the beneficiary bank continued to exist as a standalone entity (i.e. the C-context), an acquisition ban was imposed. Acquisition bans also appear in the W-context: a bank in a winding-down process is in principle not allowed to engage in new activities; in the same vein, the bank will not be authorised to acquire (or take participations in) other firms.1 By contrast, acquisition bans are usually not imposed in the T-context and S/T/W- context.

The fact that the Commission does not require an acquisition ban in every case, raises the following question: does the Commission explain in its decisions why an acquisition ban is needed in a particular case?

In many decisions, the Commission did not dwell on the need for an acquisition ban. For instance, in the decision on Caixa Geral de Depósitos (CGD), the Commission only considered that “it welcomes an acquisition ban, which ensures that the State aid will not be used to take over competitors, but that it will instead serve its intended purpose, namely to restore CGD’s viability”.2 Although this explain the ratio of the acquisition ban, it does not explain why an acquisition ban was needed in that particular case.

Only a very few decisions contain a consideration regarding the importance of an acquisition ban in that particular case. For instance, in the decision on Abanka, the Commission noted that the acquisition ban was “of particular importance in view of the high capital ratio maintained by Abanka during the restructuring period to sustain a stress situation”.3 However, it could be argued that a detailed explanation (as to why an acquisition ban is needed in a particular case) would not be necessary, because requiring an acquisition ban is standard practice in the C-context.

This is confirmed by a decision (in the C-context) in which the Commission explained why the absence of an acquisition ban was justified. The ‘Restructuring and stabilisation scheme for the Credit Union Sector in Ireland’ did not include an acquisition ban. The Commission considered that in the exceptional case of the Irish credit unions, an acquisition ban was not required.4

If acquisitions are necessary for the restoration of long-term viability of the bank, then this might constitute a justification for not requiring an acquisition ban. This can be illustrated – a contrario – by the decision on ABN AMRO. In this decision, the Commission considered that acquisitions were not needed for the return to viability.5 As a result, an acquisition ban did not go against the return to viability.6

In the T-context and in the S/T/W-context, the absence of an acquisition ban seems to be standard practice. This would seem to indicate that the relevant context could explain the absence of the acquisition ban. To some extent, this makes sense. In the T-context and S/T/W-context, the activities of the ailing bank are transferred to a larger, viable bank. An acquisition ban would make it very unattractive for a potential acquiring bank to acquire the activities of the ailing bank.7 This could explain the absence of an acquisition ban in the T-context and S/T/W-context. This is confirmed by the fact that the acquisition ban in the case of Catalunya Banc applied until the date of the integration of the bank with BBVA.8

Although an acquisition ban is absent in cases in the T-context and S/T/W- context, the Commission does not explain in its decisions why an acquisition ban is not needed in these cases. This is in sharp contrast with the decision on the ‘Restructuring and stabilisation scheme for the Credit Union Sector in Ireland’ in which the Commission considered that due to exceptional circumstances, an acquisition ban was not required.

Interestingly, there are two cases in the T-context that feature an acquisition ban.9 This was the case in Banco CAM and BPN.10 It is unclear why an acquisition ban was needed in those cases, whereas it is absent in other cases in the T-context.

To conclude, most decisions fit within the general pattern (that acquisition bans are present in the C-context, W-context and S/W/C-context; and absent in the T-context and S/T/W-context). In that regard, the Commission approach can be considered consistent. However, the principle of equal treatment requires not only that the Commission consistently assesses whether an acquisition ban is present, it also requires that the acquisition ban is elaborated in a consistent manner. This concerns the modalities of the acquisition ban, which will be discussed in the following subsection.