6.9.3 “Taken into account”

The aim of this PhD-study is to identify the relevant characteristics and to analyse whether the Commission has consistently taken into account these relevant characteristic. It might be worthwhile to clarify what is understood by “taken into account”.

In essence, ‘taking into account’ requires that the relevant characteristic is mentioned in the decision. Indeed, if a relevant characteristic is not mentioned at all in a decision, then the Commission did not show that it took into account the relevant characteristic. Accordingly, such a decision is categorised as a decision in which the relevant characteristic is not taken into account.

The situation is less clear when a relevant characteristic is mentioned in a decision. The fact that the relevant characteristic is mentioned does not automatically mean that the relevant characteristic is taken into account by the Commission. It depends on the way how it is mentioned. Indeed, when the Commission only mentions a relevant characteristic in a bank State aid decision, without using it as an assessment criterion, then this relevant characteristic is not really “taken into account” by the Commission. There are four possibilities in which a relevant characteristic can be mentioned, as will be discussed below.

Option 1: Mentioned in the assessment-part of the decision

Section 3.6.2 explained the structure of the Commission decisions. Although there are some differences in the way how the decisions may be structured, every decision consists of a description-part and an assessment-part. A relevant characteristic that is mentioned in the assessment-part of the decision is clearly taken into account by the Commission in its assessment.

If a relevant characteristic is purely mentioned as a description, then this PhD- study does not categorise the decision as a decision in which the relevant characteristic is taken into account. This was the case with the market characteristics discussed in section 13.3. In several decisions, the market presence was mentioned as a description of the beneficiary bank, rather than as an indication of the competitive impact of the aid.

Nevertheless, if a restructuring measure is only mentioned in the description-part of the decision, the fact that it is mentioned in the decision means that it is taken into account. Indeed, in its compatibility-assessment, the Commission takes into account the restructuring measures.

In a few instances, the relevant characteristic is not mentioned in the Restructuring Decision but in the Rescue Decision. For instance, the Restructuring Decision on Anglo/INBS does not mention management changes nor remuneration restrictions. However, management changes and remuneration restrictions were mentioned in the Rescue Decision on Anglo Irish Bank.1 How should this case be categorised? As a case in which the Commission took into account the relevant characteristic or as a case in which the relevant characteristic was not taken into account? In that regard, it should be noted that in the Rescue Decisions, the Commission usually holds that “this assessment is without prejudice to that which the Commission will reach following the analysis of the restructuring plan if these measures are maintained in it”.2

As will be explained in section 11.2, the Commission did not explicitly mention the replacement of senior management in the assessment-part of the decisions on the Danish banks Amagerbanken, Roskilde Bank and Fionia Bank. However, in the decision on the Danish winding-up scheme, the Commission noted positively that removing control from OldBank’s management was a measure to minimise moral hazard.3 Since the cases of Amagerbanken, Roskilde Bank and Fionia Bank are in line with the principles of the winding-up scheme, it can be argued that the relevant characteristic is indirectly mentioned in these cases. Whether a relevant characteristic is taken into account by the Commission is thus a matter of interpretation.