14.2.2 Inconsistency on the first level

It should be recalled that an inconsistency can occur at two levels. The first level concerns the question whether the Commission has consistently assessed whether the relevant characteristics are present in the case at hand. The second level concerns the way how the relevant characteristics are elaborated in the decisions.

The analysis of the decisional practice has revealed several inconsistencies on the first level. Indeed, there are several relevant characteristics that are not taken into account in every case. One would expect the relevant characteristics to be present in every case, or one would expect a justification (or at least an explanation) why a relevant characteristic is not present in the case at hand. This can be illustrated by the relevant characteristic that was discussed in sec-tion 11.2: the fact that the senior management of the beneficiary bank has been replaced. Since the replacement of the senior management can be considered as the norm1, one would expect that every decision mentions whether the senior management has been replaced: the Commission either welcomes the replacement of the bank’s senior management or it explains why such a replacement would not be appropriate in the case at hand. In other words: one would expect the Commission to mention the relevant characteristic in the decision. As explained in section 11.2, there are 23 decisions (of in total 90 cases) that indicate whether the senior management has been replaced, so there are 67 decisions that do not mention this relevant characteristic. In my opinion, this omission to mention whether the senior management has been replaced, amounts to an inconsistency.

Two compensatory measures are worth mentioning: i) the divestment aimed at creating a new competitor, and ii) the price leadership ban. These two compensatory measures were required by the Commission in the early bank State aid cases. However, as explained in chapter 13, these two compensatory measures do not appear in later bank State aid cases. Does this constitute a hange of approach? This could have been better explained or clarified by the Commission.