3.7.2 Terminology

There exist several terms for these structural measures and behavioural constraints: ‘restructuring measures’, ‘compensatory measures’, ‘remedies’ or ‘commitments’. It may therefore be useful to elaborate on the terminology.

In the Commission decisions, the term ‘commitments’ is used most frequently. However, as will be explained in the following subsection, this term does not cover all structural measures and behavioural constraints, since they sometimes take the form of conditions.

To the extent that the structural measures and behavioural constraints are included in the restructuring plan, they can be described as ‘restructuring measures’. Sometimes, the term ‘compensatory measures’ is used. Although this term is sometimes used as a synonym for restructuring measures1, it is more often used to describe a specific type of restructuring measure: i.e. the measures that are aimed at limiting competition distortions. For instance, the 2008 Banking Communication requires “compensatory measures to limit distortions of competition”.2

In the literature, the term ‘remedies’ is often used. By contrast, the Commission decisions rarely use this term.3 It should be noted that the term ‘remedies’ is more common in the other fields of EU competition law: antitrust and merger control. The term ‘remedies’ can be found in the Restructuring Communication; mostly in the context of competition distortions.4 Therefore, the terms ‘remedies’ and ‘compensatory measures’ are often used interchangeably.5 However, remedies are sometimes considered to also include burden-sharing measures.6 Whether remedies also include viability-measures is less clear. For that reason, the term ‘remedies’ might not be completely suitable to describe all the three types of measures in the restructuring plan.

Therefore, in this PhD-study, the term ‘restructuring measures’ is used as a catchall term for the structural and behavioural measures that are included in the restructuring plan. When referring to one of the three types of restructuring measure, the term ‘viability measure’, ‘burden-sharing measure’ respectively ‘compensatory measure’ is used.

It should, however, be noted that not all behavioural constraints originate from the restructuring plan. Indeed, some behavioural constraints originate from a bank support scheme. As will be explained in section 8.8, all bank support schemes provide for some behavioural constraints. Are the behavioural constraints that originate from the scheme ‘restructuring measures’? To the extent that the restructuring plan includes information about the behavioural constraints originating from the scheme, these behavioural constraints can still be considered as ‘restructuring measures’. However, there are a few instances in which a restructuring plan is not required. For instance, banks that only participate in a guarantee scheme do not have to draw up a restructuring plan. In such a cases, the behavioural constraints cannot be considered as ‘restructuring measures’. Thus, the term ‘restructuring measures’ is not a perfect catchall term for all structural measures and behavioural constraints. Nevertheless, as will be explained in section 6.9, this PhD-study focusses on the assessment of whether the aid is compatible in light of the restructuring plan. Because of this special focus, this PhD-study will mainly speak of ‘restructuring measures’.