Einde inhoudsopgave
State aid to banks (IVOR nr. 109) 2018/9.5
9.5 Transparency and disclosure
mr. drs. R.E. van Lambalgen, datum 01-12-2017
- Datum
01-12-2017
- Auteur
mr. drs. R.E. van Lambalgen
- JCDI
JCDI:ADS587031:1
- Vakgebied(en)
Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht
Voetnoten
Voetnoten
Section 5.1 of the IAC corresponds to points 19 and 20 of the IAC.
As the Commission explains in footnote 1 relating to point 20 of the IAC, the terms ‘transparency’ and ‘full disclosure’ should be understood as meaning transparency vis-à-vis the national authorities, the independent experts involved and the Commission.
Northern Rock, C14/2008, 28 October 2009, para. 107.
For instance, in the decision on Banka Celje/Abanka, the Commission noted positively that independent consultants had been engaged by Slovenia to review the quality of assets in the context of the Slovenian Asset Quality Review 2013 exercise and that the valuation of the assets had been performed by the Bank of Slovenia. Banka Celje/Abanka, SA.38522, 16 December 2014, para. 115.
Even though ING is a multinational which operates worldwide, I refer to it as a Dutch bank (since it is headquartered in Amsterdam, Netherlands). In that regard, it is noteworthy that companies can have several ‘nationalities’; this is the case when the ‘legal home’, ‘financial home’ and ‘home for managerial talent’ differ. This phenomenon – which is known as “multiple corporate citizenship” – is discussed in the pioneering work of A.A. Bootsma et al. Equally noteworthy: the fact that many banks operate cross-border was used by E.V.A. Eijkelenboom in her awesome contribution at the IvO/ICFG-conference of 3 December 2014 (“De toekomst van het toezicht op accountants”), in which she drew some parallels between the banking union on the one hand and the (need for) European supervision on cross-border audit firms on the other hand.
See, for instance: WestLB, C40/2009, 22 December 2009, para. 57-59.
The fact that the ‘transparency and disclosure-criterion’ of the IAC has been met.
As regards the ‘transparency and disclosure-criterion’, many decisions refer to section 5.1 of the IAC1, which requires full ex ante transparency and disclosure of impairments on the assets which will be covered by the relief measures.2 The term ‘ex ante’ means that disclosure and valuation should take place prior to government intervention.
As the Commission explained in one of its decisions, ex-ante transparency implies a clear identification of the assets and exposure. This is necessary to identify the amount of aid in the asset relief measure and to ascertain whether the aid is needed to address a temporary problem or whether the bank in question is technically insolvent.3
Point 20 of the IAC also stresses that transparency should be based on adequate valuation certified by recognised independent experts and validated by the relevant supervisory authority.4
In addition, point 20 of the IAC stipulates that the valuation should be in line with the principles of valuation developed in section 5.5 of the IAC. Valuation is a requirement that appears in section 5.5 of the IAC, but it is also part of the requirement of section 5.1 of the IAC. This is also apparent in the Opening Decisions on ING5 (31 March 2009, para. 58) and on LBBW (30 June 2009, para. 60), in which the Commission concluded that the requirement of section 5.1 of the IAC was met, with the exception of the issue of proper valuation. Further in these two decisions, in the context of section 5.5 of the IAC, the Commission indicated that it had doubts regarding the valuation. In my opinion, the relation between section 5.1 and 5.5 of the IAC can be understood as follows: section 5.5 concerns the methodology of the valuation, whereas section 5.1 concerns the procedural aspects (i.e. there should be an ex ante valuation and the valuation should be certified and validated).
Although in some Opening Decisions6 the Commission may have expressed some doubts, in the end, the Commission always concluded that the ‘transparency and disclosure-criterion’ of section 5.1 of the IAC was met.