5.20.2 The case of WestLB

The applicant in this case claimed that the WestLB-decision infringed the principle of equal treatment. According to the applicant, making the authorisation of aid to a bank subject to the obligation to sell the bank was unprecedented in the Commission’s decision-making practice. The applicant argued that a comparison of the WestLB-decision with the decision on Commerzbank would clearly show that there had been unequal treatment, because in the Commerzbank-decision (which was adopted a week before the WestLB-decision), the Commission did not require a change in the ownership structure of the beneficiary bank. In addition, the applicant produced a table which, in its view, showed that the WestLB-decision was the only decision in which authorisation of the aid at issue was made subject to a change in the beneficiary’s ownership structure.1

The General Court recalled the CJEU-definition of the principle of equal treatment and held that the applicant had not demonstrated that WestLB was in a situation comparable to that of the other beneficiary banks.2 In that regard, the General Court held that the effect of restructuring aid granted to a bank in difficulty in a situation of financial crisis fundamentally depended on a set of individual circumstances, which include the bank’s economic situation and its prospects of being restored to economic viability. However, the applicant did not examine whether the Commission, in the decisions relating to the banks which it cited (such as Commerzbank), had considered that the ownership structures were as problematic as that of WestLB.3

In addition, the General Court noted that it is only in the context of Article 87 (3)(b) EC4 that it is necessary to assess the legality of a Commission decision declaring that new aid does not fulfil the requirements for application of that derogation, and not in the light of its previous decision-making practice, assuming that the latter is established. This was clarified as follows: “The concept of State aid and the conditions necessary for ensuring the restoration of the beneficiary’s viability reflect an objective situation which must be appraised on the date on which the Commission takes its decision. Thus, the Commission’s reasons for having made a different appraisal of the situation in an earlier decision must remain immaterial to the appraisal of the lawfulness of the contested decision.”5

Furthermore, the General Court considered that the Commission cannot be deprived of the opportunity to set compatibility conditions stricter than those in previous decisions if so required by the development of the common market and the objective of undistorted competition within that market.6

The General Court also pointed at the fact that it is the Member State who proposes commitments and that the Commission only considers whether these commitments are adequate (in order to ensure viability, burden-sharing and limiting competition distortions). As a consequence, differences between the restructuring plans are due to a choice by the Member State concerned, rather than being due to a choice by the Commission. For that reason, the General Court held that “in principle, the fact that authorisation of restructuring aid is made subject to compliance with the measures provided for by the restructuring plan to which the Member State concerned has committed itself cannot result in an infringement of the principle of equal treatment”.7

On the basis of these considerations, the General Court concluded that the applicant had failed to demonstrate that the Commission discriminated against the applicant. The plea in law (alleging infringement of the principle of equal treatment) was therefore rejected.