9.3.1.0 Introductie

Asset relief measures have to be assessed under the Impaired Assets Communication (IAC). However, State aid measures are sometimes designed in such a way that it is not crystal clear whether they qualify as asset relief measures. The IAC defines asset relief as any measure whereby a bank is dispensed from the need for severe downward value adjustments of certain asset classes. In deciding whether a State aid measure has to be assessed under the IAC, the Commission looks at the effect of the State aid measure. If the aid measure has the effects of an asset relief measure, then it falls within the scope of the IAC.

That the IAC has to be applied to all measures that qualify as asset relief measure was stressed by the Commission in its decision on the risk shield of HSH Nordbank. In this case, Germany argued that the IAC was not applicable to the risk shield. According to Germany, the IAC had to be regarded “as an administrative instruction only, designed solely to ensure consistent administrative practice and binding on the Commission alone”. Germany therefore argued that the compatibility of the risk shield with the internal market should be assessed directly under the TFEU.1 The Commission held as follows:

The question as to the applicability of the IAC was addressed in several cases. For instance, in the case of the Austrian bank BAWAG, Austria argued that the IAC was not applicable. The asset relief measure in the case of BAWAG had a complicated structure. BAWAG had sold its impaired assets to four indirectly wholly-owned special purpose subsidiaries and agreed that these special purpose subsidiaries could defer payment.3 Austria had granted a guarantee for the payment of the receivables from the special purpose subsidiaries. Austria argued that the IAC was not applicable to the guarantee.4 However, the Commission considered that – since the equity of the subsidiaries was relatively low – an impairment of the assets by the subsidiaries would almost certainly lead to an impairment of the receivables.5 The Commission therefore concluded that the measure acted as if it guaranteed the underlying impaired assets and provided BAWAG with an asset relief. The measure thus fell within the scope of the IAC.

The remainder of this subsection will focus on two particular situations that raise the question whether the IAC is applicable: i) asset relief measures which are similar to recapitalisation measures (see subsection 9.3.1.1), and ii) the split- up of the bank (see subsection 9.3.1.2).