6.3.3 Why is the CJEU-definition unsatisfactory?

In my opinion, the CJEU-definition is unsatisfactory, because it does not provide a way of establishing whether the differences between the bank State aid cases justify the differences in treatment. The CJEU has held that “comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified”. However, since there are always circumstances that “call into question the comparability of the situations at issue”1, the CJEU-definition is in my view very narrow. This is underlined by the three cases discussed in section 5.20. For instance, in its judgment on ABN AMRO, the CJEU held that it is difficult to establish that situations are actually comparable when dealing with bank State aid decisions.2 This illustrates my point: since bank State aid cases are evidently different, the different treatment of those cases is completely in line with the principle of equal treatment, as defined by the CJEU.

For this reason, I am of the opinion that the principle of equal treatment is interpreted very narrowly by the CJEU. And because the CJEU-definition is so narrow, it cannot remedy the lack of clarity. Indeed, it cannot provide a way of establishing whether the differences between the bank State aid cases justify the differences in treatment. For this reason, I am of the opinion that the CJEU- definition is unsatisfactory for the purposes of this PhD-study.