14.2.3 Inconsistency on the second level

One of the aims of the analysis of the decisional practice was to find out in how many cases a relevant characteristic is taken into account. In some instances, counting the number of cases (in which a relevant characteristic is taken into account) is less valuable. It should be recalled that there can be an inconsistency at two levels. Accordingly, even if a certain relevant characteristic is taken into account in every bank State aid case, there can still be an inconsistency on a deeper level. This is the case when the ‘characteristics’ of the relevant characteristic are not consistently taken into account – in the terminology of this PhD-study: when the relevant characteristic is not elaborated in a consistent manner.1 For some relevant characteristics, the emphasis is therefore on the question how a certain relevant characteristic is elaborated rather than on the question in how many cases it was taken into account.

To give an example: the fact that the beneficiary bank is subject to an acquisition ban is a relevant characteristic.2 The acquisition ban has several modalities, such as the duration of the ban, its scope and its exceptions. Until the adoption of the 2013 Banking Communication, the modalities of the acquisition ban differed among the cases. Nevertheless, in every case that was characterised by an acquisition ban, the Commission welcomed the fact that there was an acquisition ban, even though the scope of the acquisition ban and the exemptions to the acquisition ban were different.

In my view, the principle of equal treatment does not require that all the modalities of the acquisition ban should be the same in each case. However, it does require that the Commission should take into account the relevant differences between the cases. Thus, if cases differ on the modalities, then one would expect that these differences are taken into account by the Commission. In particular, one would expect some kind of justification or explanation why the scope of the acquisition ban is different or why some exemptions are not included. Such explanation is not given by the Commission in its decisional practice. Most decisions only mention that the Commission welcomes the acquisition ban, without taking into account the different modalities of the acquisition ban. This amounts to an inconsistency. It should, however, be recalled that this inconsistency was put to an end by the adoption of the 2013 Banking Communication. Indeed, this Communication provides for an acquisition ban with uniform modalities.

Although the inconsistency with respect to the acquisition ban was put to an end, it is illustrative of the finding that the Commission did not always draw conclusions from differences in modalities.