1.2 Description of the problem

The previous section illustrated that there is some doubt whether the principle of equal treatment is respected by the Commission in its bank State aid decisions. This doubt is caused by a lack of clarity as to whether bank State aid decisions comply with the principle of equal treatment.

This lack of clarity is due to the fact that it cannot easily be established whether a bank State aid decision complies with the principle of equal treatment. This principle essentially requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified.1 It goes without saying that bank State aid cases are not identical; the outcomes of the State aid procedure are therefore also not identical. In fact, State aid cases are often not comparable. This is because the Commission follows a “tailor-made approach”: the Commission takes into account the specific circumstances of each case.2 Taking into account all the specific circumstances of the cases inevitably means that there will be many aspects on which State aid cases can differ from each other. This, in turn, means that it cannot easily be established whether a bank State aid decision is in line with the principle of equal treatment. This is what results in a lack of clarity.

Because of the lack of clarity, banks that are confronted with severe restructuring measures may easily have the feeling that the imposition of those restructuring measures is unfair, (especially) when compared with other banks that were confronted with less severe restructuring measures. Those less severe restructuring measures are due to differences between the bank State aid cases, but if it is not clear which differences are relevant, then this lack of clarity may easily lead to a feeling of unfair or unequal treatment.

The lack of clarity may thus lead to doubts whether the principle of equal treatment is respected by the Commission in its bank State aid decisions. Since the principle of equal treatment is a general principle of European Union law, the Commission is bound to respect the principle of equal treatment. Doubts about the application of the principle of equal treatment may undermine the public support for the Commission’s State aid control policy. The lack of clarity is therefore problematic for the Commission.

The lack of clarity is also problematic for the banks and Member States. In the first place, this lack of clarity may lead to uncertainty for Member States that are about to grant State aid to banks. Because of the “tailor-made approach” of the Commission and the resulting lack of clarity, Member States and beneficiary banks do not always know what to expect from the Commission in terms of the required restructuring measures. Furthermore, the restructuring measures that the Commission demands may be hard to challenge because of this lack of clarity. Beneficiary banks and Member States may have the feeling that they are unfairly treated in comparison with other bank State aid cases, but because of the lack of clarity, they are not able to assess if this feeling is correct. This is problematic, because if they are not able to assess if the restructuring measures (that the Commission demands from them) are in line with the principle of equal treatment, then they cannot successfully argue (during the negotiations with the Commission) that these measures should be less severe. In addition, they cannot make a well-considered decision whether to challenge the Commission decision before the Court of Justice.

The main problem that this PhD-study aims to tackle, can thus be formulated as follows: