14.3.3 Implications for the Member States and beneficiary banks

How are the key findings of this PhD-study relevant to the Member States and beneficiary banks? Can they use the findings to challenge the decisions? As touched upon in chapter 5, an action for annulment can only be brought within a strict time-limit. So this PhD-study has no implications for previous bank State aid cases. However, it is relevant for future cases: the list of relevant characteristics can be used in future cases to assess if the decision complies with the principle of equal treatment.

In that regard, it should be recalled that this PhD-study distinguished between three stages: anticipating the “treatment”, negotiating the “treatment” and challenging the “treatment”. Chapter 5 made some important observations on the third stage. Chapter 5 showed that there are relatively few Member States and banks who challenge the Commission decision before the Court by bringing an action for annulment. Another finding is that only a fraction of these actions for annulment was successful. I would therefore recommend that Member States and beneficiary banks focus their attention and efforts on the first and second stage. In other words: they should bear in mind the relevant characteristics when drafting the restructuring plan (‘anticipating the treatment’). In the second stage, during the negotiations with the Commission, they could stress the presence of certain relevant characteristics in the case at hand.

This PhD-study began with the observation that there is a lack of clarity as to whether bank State aid decisions comply with the principle of equal treatment. As set out in chapter 1, this lack of clarity is due to the fact that it cannot easily be established whether a decision complies with the principle of equal treatment. With this PhD-study – which provides a framework that can be used to assess whether a decision is in line with the principle of equal treatment – I hope to have contributed to providing some clarity.