5.7 The case of BayernLB

This case involved two banks: the German BayernLB (Bayerische Landesbank) and the Austrian HGAA (Hypo Group Alpe Adria). HGAA was a subsidiary of BayernLB, until 23 December 2009, when HGAA was nationalised by the Austrian State. In the context of this nationalisation, it was agreed that BayernLB would continue to provide intra-group funding of EUR 2,638 billion to HGAA until the end of 2013. BayernLB received a guarantee from Austria that this amount would be reimbursed (hereafter: “funding guarantee”).

In the decision on BayernLB (“the BayernLB-decision”), the Commission held that the funding guarantee granted to BayernLB by Austria constituted State aid.1 The Commission considered that without the granting of the funding guarantee, BayernLB would probably have lost a large part of the funding it had provided to HGAA. Indeed, HGAA was in a distressed situation and the funding guarantee relieved BayernLB from the credit risk on its funding to HGAA.

Austria brought an action for the annulment of the BayernLB-decision in so far as it concerned the funding guarantee. Austria claimed that it never had the intention of granting State aid to BayernLB. It claimed, in particular, that the Commission wrongly concluded that there had been State aid.

On 28 January 2016, the General Court rendered its judgment. According to the General Court, the Commission did not err in law in finding that the benefit conferred on BayernLB constituted State aid and that it was compatible with the Restructuring Communication. The General Court therefore dismissed the action for annulment.