1.3.2 Relevance of the research

It has to be stressed that the main purpose of this PhD-study is not to reach any conclusions on whether or not the Commission has respected the principle of equal treatment in the past. In section 1.1, it was mentioned that there were some suspicions that the Commission had violated the principle of equal treatment. Although it might be tempting to find out whether these suspicions were correct, that is not the ultimate aim of this PhD-study. The aim of this PhD-study is not backward-looking; rather, it is forward-looking. It is about providing a framework which can be used to establish whether a bank State aid decision complies with the principle of equal treatment. This framework can be put to use by the Commission, the Member States as well as by beneficiary banks.

Relevance to Member States and banks

First and foremost, this PhD-study is relevant for the Member States that consider granting State aid and for the beneficiary banks. Every Member State that grants State aid and every bank that receives State aid, is ultimately confronted with a decision of the Commission. If a Member State or a beneficiary bank has the feeling that it was unjustly treated by the Commission in comparison with the way other banks were treated, then it probably wants to be able to substantiate this feeling. This PhD-study enables Member States and beneficiary banks to assess whether this feeling is correct. This PhD-study provides a framework which can be used to establish whether a bank State aid decision complies with the principle of equal treatment. This framework is not only useful for challenging the restructuring measures. Indeed, it can be used to anticipate the “treatment”, to negotiate the “treatment” and to challenge the “treatment”.1

These three possible uses correspond to three different stages. The first stage is when a Member State designs the aid measure. The second stage is when the Member State and the beneficiary bank conduct negotiations with the Commission on the aid measure and the restructuring plan. The third stage is when the Commission has adopted a decision and when the Member State and beneficiary bank have to decide whether or not to challenge that decision before the Court of Justice of the European Union (CJEU).2

With respect to this third stage, Member States and beneficiary banks could use the framework of this PhD-study to estimate whether they can successfully challenge the decision before the CJEU by pleading a violation of the principle of equal treatment. Since the case-law from the CJEU usually receives more attention than decisions from the Commission, one could think that the third phase (the litigation-phase) is the phase in which the framework of this PhD-study can be best put to use. However, in my opinion, this is not the case. There are 90 bank State aid cases, and only in 15 cases, the Commission decision was challenged before the CJEU.3 There are thus relatively few Member States and banks who challenged the Commission decision before the CJEU by bringing an action for annulment.

An important hurdle is the burden of proof: the applicant has to prove that the Commission did not respect the principle of equal treatment. Another– even more serious – obstacle is that the principle of equal treatment is interpreted very narrowly by the CJEU.4 In my opinion, the narrow CJEU-definition5 of the principle of equal treatment can be unsatisfactory, because the feeling that one is treated unfairly in comparison with others might be broader than the principle of equal treatment as defined by the CJEU. In other words: while the CJEU might conclude that the principle of equal treatment was not violated, the bank concerned may still have the feeling that it was treated unfairly in comparison with other banks. Since this PhD-study aims to address that feeling – or more precisely: to address the lack of clarity that has caused that feeling – this PhD-study will not focus solely on the CJEU-definition of the principle of equal treatment. Instead, other interpretations of the principle of equal treatment will also be explored. As will be explained in chapter 6, it is possible that while there is no violation of the principle of equal treatment according to the CJEU-definition, there is a violation according to another definition/interpretation. While that other interpretation cannot be used to raise a plea regarding a violation of the principle of equal treatment, it might be able to be used to substantiate other pleas of law. Furthermore, the other interpretation is very useful in the negotiations with the Commission. As was explained in the previous section, doubts about the application of the principle of equal treatment by the Commission might undermine the public support for its State aid control. Since these doubts are not limited to the CJEU-definition of the principle of equal treatment, the Commission’s concern for the public support is probably also not limited to the CJEU-definition of the principle of equal treatment.

Indeed, it is during the negotiation stage that the framework is most relevant. The framework can be used to assess whether the restructuring measures that the Commission demands from the beneficiary bank, are in line with the principle of equal treatment. If this assessment reveals that the required restructuring measures are too severe in comparison with other bank State aid cases, then this assessment can provide the Member State and bank concerned with arguments to negotiate less severe restructuring measures.

With respect to the first stage (i.e. setting-up the aid measure), the framework developed in this PhD-study will provide an insight into the Commission’s approach to bank State aid. This insight can be useful to Member States when designing aid measures, because the insight resulting from this PhD-study allows them to better anticipate the “treatment” by the Commission.

One question remains: should a distinction be made between the relevance of this PhD-study to banks on the one hand and Member States on the other hand? They are two distinct parties and they have clearly different positions: the one is granting the aid, while the other one is receiving the aid. It should also be noted that the Commission decision is addressed to the Member State, not to the bank. However, the bank is directly and individually concerned by the decision6, so it can challenge the Commission decision.7

The bank’s primary concern is its own interests, whereas the Member State needs to take into account the stability of the entire banking sector. This means that their interests may not always converge. However, this does not mean that this PhD-study is less relevant to them.

Relevance to the Commission

In addition to being relevant to Member States and banks, this PhD-study is relevant for the Commission. Just like Member States and banks can use the framework to assess whether a bank State aid decision complies with the principle of equal treatment, the Commission can use it in the same way to establish whether its decision is in line with the principle of equal treatment. In the first place, the aim of the Commission would be to evaluate its own decisional practice in terms of compliance with the principle of equal treatment. In the second place, it seems likely that the Commission would like to be able to demonstrate that its decisional practice does not violate the principle of equal treatment.