5.2 The case of ING

The main issue in the case of ING concerned the private investor principle. The essence of the private investor test is that the behaviour of the State is compared to that of a hypothetical private investor. If the State acts like a private investor would do (under similar circumstances), then the measure contains no aid-element. Consequently, the measure does not constitute State aid and falls outside the scope of the prohibition of Art. 107(1) TFEU.1

In November 2008, ING received a capital injection from the Netherlands. This capital injection was not made in the form of ordinary shares, but in the form of Core Tier 1 securities (which have to be repaid eventually). At the time of the capital injection, the Netherlands and ING agreed on the terms for repaying the capital injection. However, a few months later, the Netherlands and ING amended these repayment terms. The Commission considered that the amended repayment terms were more favourable to ING than the original repayment terms. Therefore, in the decision on ING of 18 November 2009 (“the ING-decision”), the amendment of the repayment terms was classified as additional State aid. Both the Netherlands and ING challenged the ING-decision by bringing an action for annulment: joined cases T-29/10 and T-33/10. The Netherlands and ING criticised the classification of the amendment of the repayment terms as additional State aid. According to ING and the Netherlands, the modification of the repayment terms did not constitute State aid. They argued that the Commission should have applied the private investor test.

On 2 March 2012, the General Court rendered its judgment. The General Court considered that State aid may have been granted both on the making of the capital contribution, and on the amendment to the repayment terms, if it becomes apparent that the State did not act in each of those situations as a private investor in a similar situation would have done.2 Thus, the Commission cannot evade its obligation to assess the economic rationality of the amendment to the repayment terms in the light of the private investor principle solely on the ground that the capital injection subject to repayment already itself constitutes State aid.3

The Commission lodged an appeal against the judgment of the General Court. In its judgment of 3 April 2014, the Court rejected all the grounds of appeal and dismissed the appeal dismissed in its entirety. In particular, the Court considered that the application of this case-law cannot be compromised merely because the ING-case concerns an amendment to the conditions for the redemption of securities acquired in return for state aid.4 Any holder of securities may wish or agree to renegotiate the conditions of their redemption. It is therefore meaningful to compare the behaviour of the State in that regard with that of a hypothetical private investor in a comparable position.5 The Court concluded that the General Court had not erred in law.6