5.20.4 Reflection

The discussion of the cases of ABN AMRO, WestLB and BPP has shown that none of the applicants could successfully claim that the Commission had violated the principle of equal treatment. In each of the three cases, the plea in law alleging an infringement of the principle of equal treatment was rejected by the Court. This is illustrative of the fact that the Court almost never finds that the principle of equal treatment is infringed. This is due to three complicating factors.

In the first place, it should be recalled that the principle of equal treatment requires 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. Thus, in order to be able to apply the principle of equal treatment, one must be able to establish whether situations are comparable or not. However, as is illustrated by the cases of ABN AMRO, WestLB and BPP, it is very difficult to establish whether beneficiary banks are in a comparable situation. Indeed, banks are different, State aid measures are different and restructuring plans are different. Hence, there are always circumstances that “call into question the comparability of the situations at issue”.1

In the second place, there is a more fundamental problem. It is established case- law that it is only in the context of Article 107(3)(b) TFEU that it is necessary to assess the legality of a Commission decision, and not in the light of its previous decision-making practice.2 This essentially means that beneficiary banks and Member States cannot refer to other decisions to support their argument that in the contested decision, the Commission departed from its earlier decision- making practice.3

In the third place, it should be recalled that there are commitment decisions and conditional decisions.4 The restructuring measures are sometimes depicted as being imposed by the Commission. This may be true de facto, but from a strictly legal perspective, the restructuring measures are proposed by the Member State concerned. Only if the Commission adopts a conditional decision, the restructuring measures are imposed by the Commission. If, on the contrary, the Commission adopts a commitment decision, the restructuring measures are commitments by the Member State. As the Court held in the case of WestLB, “in principle, the fact that authorisation of restructuring aid is made subject to compliance with the measures provided for by the restructuring plan to which the Member State concerned has committed itself cannot result in an infringement of the principle of equal treatment”.5

For these reasons, I am of the opinion that the principle of equal treatment is interpreted very narrowly by the Court of Justice.