Einde inhoudsopgave
State aid to banks (IVOR nr. 109) 2018/1.4
1.4 Scope of the study
mr. drs. R.E. van Lambalgen, datum 01-12-2017
- Datum
01-12-2017
- Auteur
mr. drs. R.E. van Lambalgen
- JCDI
JCDI:ADS584726:1
- Vakgebied(en)
Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht
Voetnoten
Voetnoten
See, for instance: Ethias, 20 May 2010.
See, for instance: Dunfermline Building Society, 25 January 2010.
See, for instance: SA.41371 (1st prolongation of the Credit Union restructuring and stabilisation Scheme), 5 May 2015, footnote 5.
This was specified in footnote 1 of these Communications. In the same vein, footnote 3 of the Restructuring Communication indicates that although the Restructuring Communication refers to banks for ease of reference, “it applies, mutatis mutandis, to other financial institutions where appropriate”.
Within the meaning of Article 6 of Directive 73/239/EEC, Article 4 of Directive 2002/83/ EC or Article 1(b) of Directive 98/78/EC.
The question whether the Crisis Framework is applicable to a case, is rarely raised. Only in the case of ARCO, a financial cooperative company, the Commission assessed whether the beneficiary of State aid fell under the scope of application of the Crisis Framework. In its decision on ARCO (SA.33927, 3 July 2014, para. 120), the Commission concluded that financial cooperatives are not financial institutions for the purposes of the 2008 Banking Communication. The case of ARCO will be discussed in more detail in section 5.10.
In this PhD-study, the decisional practice of the Commission will be analysed. It should be noted that the Commission is not the only institution that applies State aid rules: the EFTA Surveillance Authority also assesses State aid cases. The EFTA Surveillance Authority assesses State aid measures granted by Iceland, Liechtenstein and Norway (i.e. the EFTA States that are part of the EEA Agreement). NB: the EFTA (European Free Trade Association) consists of Iceland, Liechtenstein, Norway and Switzerland, while the EEA (European Economic Area) is an agreement between the EU and three of the EFTA States; Switzerland is not part of the EEA. The EEA Agreement extends the single market (i.e. the four freedoms) to the EEA and it mirrors the competition and State aid rules of the EU Treaties. Accordingly, the EFTA Surveillance Authority applies State aid rules that are broadly equivalent to the EU State aid rules. Nevertheless, this PhD-study focusses only on the Commission decisions. Decisions from the EFTA Surveillance Authority fall outside the scope of this PhD-study.
In this PhD-study, I will also use the term ‘Commission decisions’ to refer to the bank State aid decisions.
In this PhD-study, when referring to a Commission decision, I will usually provide the following information in a footnote: the name of the bank concerned, the case number, the date of the decision and the relevant paragraph. The case number can be used to find the bank State aid decision on the website of the Commission: http://ec.europa.eu/competition/ state_aid/register/.
In these cases, the only information can be found in the press release. The table in Annex III (which gives an overview of all bank State aid decisions) also indicates the decisions of which the public version is not available.
This PhD-study focusses on State aid to banks. This focus on banks is due to the fact that State aid to banks is somewhat special. As will be explained in chapter 3, banks are different from non-financial firms. The Commission has recognised that State aid to banks is special: during the financial crisis, the Commission adopted the Crisis Framework (mainly consisting of the 2008 Banking Communication, the Recapitalisation Communication, the Impaired Assets Communication and the Restructuring Communication). In these Communications, the Commission gave guidance specifically aimed at State aid to banks. It should be noted that the Crisis Communications do not only apply to banks, but also to other firms in the financial sector (such as insurance companies1, building societies2 and credit unions3).
In that regard, it is worth stressing that the scope of application of the Crisis Communications is not sharply defined. The 2008 Banking Communication merely speaks of ‘financial institutions’, without providing a definition of ‘financial institutions’. The Recapitalisation Communication and the Prolongation Communications specify that in these documents, for the convenience of the reader, financial institutions are referred to simply as ‘banks’.4
The 2013 Banking Communication (which replaced the 2008 Banking Communication) is more precise about the scope of application of the Crisis Communications. In particular, point 25 of the 2013 Banking Communication provides that the Crisis Communications apply to ‘credit institutions’ (also referred to as ‘banks’), as defined in Article 4(1) of Directive 2006/48/EC. The scope of application is not limited to banks, since point 26 of the 2013 Banking Communication provides that the Crisis Communications, where appropriate, also apply, mutatis mutandis, to insurance companies.5
The approach of the Commission in its Crisis Communications can be contrasted with the CRD IV-approach. Indeed, the CRR and CRD IV contain specific and detailed definitions of ‘credit institutions’ and ‘financial institutions’. By contrast, the Crisis Communications are quite vague about the scope of their application. The Crisis Communications even seem to contradict the CRR- definitions. The terms ‘banks’, ‘credit institutions’ and ‘financial institutions’ are more or less used as synonyms in the various Crisis Communications, whereas CRR/CRD IV makes a sharp distinction between credit institutions and financial institutions.6 However, it should be noted that CRR/CRD IV has a different purpose than the Crisis Communications. From a financial regulation perspective, it is important to clearly distinguish between the different types of financial firms. By contrast, from a State aid control perspective, this distinction is not that important. From a State aid perspective, the essential difference is between financial firms and non-financial firms. In that regard, the scope of application of the Crisis Framework is specific enough.7
In this PhD-study, I will analyse the bank State aid decisions of the Commission.8 In this PhD-study, ‘bank State aid decisions’ are understood as every decision in which the Commission assessed the aid on the basis of the Crisis Framework.9 An overview of the bank State aid decisions can be found in the table in Annex III.10
As regards the temporal scope of the study, all bank State aid decisions that are taken since the adoption of the Crisis Framework will be analysed. However, there are a few cases in which the public version of the decision is not (yet) available.11 These decisions are not included in the analysis of the decisional practice, because the contents of the decisions is vital to that analysis. A final remark: this research was concluded on 1 August 2017. Developments after that date are not taken into account in this PhD-study.