6.3.4 Why is it justified to use other definitions of the principle of equal treatment?

It could be argued that the Commission, as an EU-Institution, is only bound by the CJEU-definition of the principle of equal treatment. However, in my opinion, the Commission should not only be concerned by the CJEU-definition of the principle of equal treatment, but also by other possible interpretations of the principle of equal treatment.

It is not inconceivable that a Commission decision does not infringe the principle of equal treatment as defined by the CJEU, but that it does infringe the principle of equal treatment as defined by the Aristotelian formula. In such a case, the decision cannot be successfully challenged before the CJEU. However, it is worth recalling that section 1.3.2 set out a distinction between three stages: 1) anticipating the “treatment”, 2) negotiating the “treatment” and 3) challenging the “treatment”. In the second stage, more and different arguments may be used than only the arguments that the CJEU would accept. Although the third stage might cast a shadow to the second stage, the parties in the second stage (i.e. the Commission, the Member State and the beneficiary bank) are not bound by the CJEU-interpretation of the principle of equal treatment. Thus, even though the argument that a Commission decision infringes the Aristotelian principle of equal treatment cannot be used to challenge this decision before the CJEU, it can still be used as an argument in the negotiations with the Commission. In that regard, it is worth recalling that the second stage may even be more important than the third stage. Especially from a quantitative perspective, the second stage is more important than the third stage. Indeed, one of the main conclusions of chapter 5 was that for most beneficiary banks, the second stage is the final stage.