13.11.1 Inconsistent use of these terms?

In many cases, beneficiary banks have committed not to engage in ‘aggressive commercial practices’ or ‘aggressive commercial strategies’. There is a lot of vagueness regarding the use of those terms. Sometimes, they are used as synonyms; sometimes they are used as two distinct notions.

Point 47 of the 2013 Banking Communication requires that certain banks “(e) must not engage in aggressive commercial practices”, and “(g) must refrain from advertising referring to State support and from employing any aggressive commercial strategies which would not take place without the support of the Member State”. The ‘practices’ and ‘strategies’ are mentioned in separate subparagraphs of point 47, which would imply that there is a difference between ‘practices’ and ‘strategies’.

The ban on aggressive commercial practices is not the same as an advertisement ban. This can be illustrated by recital 188 of the Restructuring Decision on Catalunya Banc, which mentions the advertisement ban and the ban on aggressive commercial practices as two separate behavioural restrictions.

In several other Commission decisions, the terms ‘practices’ and ‘strategies’ are used interchangeably. This can be illustrated by the decision on Nova Ljubljanska banka (NLB). In this decision, the Commission noted that “Slovenia also committed to a coupon ban, an acquisition ban and a ban on advertising and aggressive commercial practices”.1 So in the considerations of the decision, the term ‘practices’ is used. Nevertheless, the annex speaks about ‘strategies’. Under the heading “bans on advertising and aggressive commercial strategies”, Slovenia committed “to impose a ban on advertising related to the state support to NLB and to the state ownership in NLB (or to any competitive advantages arising in any way from the aid to NLB or the state ownership in NLB) and to prevent NLB from employing any aggressive commercial strategies which would not be pursued without state support (advertisement ban)”.2

To conclude, there is a lot of vagueness surrounding the terms ‘aggressive commercial strategies’. To compound on that vagueness, there are a few decisions that use even other terms. For instance, FHB committed that it would not follow any aggressive business strategy.3 In the decision on MPS ‘aggressive pricing strategy’ and ‘aggressive commercial strategy’ are used as synonyms.4