5.20.1 The case of ABN AMRO

ABN AMRO claimed that the Commission infringed the principle of equal treatment by imposing an acquisition ban which was significantly more strict than in other decisions.1 The acquisition ban entailed that ABN AMRO would not acquire control of more than 5% of any undertaking. This acquisition ban includes two relevant aspects. Firstly, it concerns ‘any undertaking’. Secondly, it concerns acquisition ‘of more than 5%’. As regards the first aspect, ABN AMRO argued that the vast majority of Commission decisions adopted at the same time only prohibited the acquisition of financial institutions or competing businesses. As regards the second aspect, ABN AMRO argued that most of the relevant decisions, including the Lloyds, ING, RBS and LBBW decisions, prohibited only the full acquisition of companies or the acquisition of control of them.

The General Court first recalled that the principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. The General Court then considered that it is very difficult to establish whether bank State aid decisions are comparable or not.2 In that regard, the General Court recalled that bank State aid can be approved only if the essential conditions laid down in the Restructuring Communication are satisfied, which requires an overall analysis of the Commission’s decisions, based on a restructuring plan and on appropriate commitments and conditions. As a result, a comparison of the individual measures imposed in different decisions is particularly dangerous.3

In any event, in so far as the Court was able to undertake a comparative examination of conditions imposed in different decisions, the burden of proof that the situations at issue are comparable, would fall on the applicant (in this case: ABN AMRO).4

In support of its plea, ABN AMRO referred to the decisions on Commerzbank, LBG, KBC, ING, RBS, LBBW, Dexia and Sparkasse KolnBonn. The General Court noted that, even though those banks were in the same business sector as ABN AMRO, they all displayed particular characteristics and operated in a specific environment. The General Court held that “with regard to those banks, a restructuring plan was submitted to the Commission, the characteristics of which have not been established to be the same as that of ABN AMRO, together with specific commitments, circumstances which call into question the comparability of the situations at issue”.5

In addition, the General Court observed that the scope of the prohibitions as it was accepted in respect of those other banks was not always as limited as is claimed by ABN AMRO. Admittedly, in several decisions, the prohibition was limited to the acquisition of shareholdings in companies active in the same sector. However, there are also decisions in which the acquisition ban extended to undertakings outside the financial sector. The General Court concluded that these decisions called into question ABN AMRO’s argument that an equally strict prohibition was not imposed on any other bank.6

In essence, the General Court concluded that ABN AMRO had failed to establish that the other cases were comparable. ABN AMRO also failed to establish that the acquisition ban in the case of ABN AMRO was more strict than the acquisition ban in other cases. The plea in law was therefore rejected.7