13.8.2 Has the Commission consistently taken into account this relevant characteristic?

Three observations can be made. First of all, there are not many cases that include a growth limitation. This can be explained by the fact that many cases are already characterised by divestments and balance sheet reductions.

The case of HSH Nordbank is one of the few cases that features a growth restriction. The Commission welcomed the commitment that the global market share of HSH Nordbank in new shipping business would not exceed [<8]% during the entire restructuring plan.1 In addition, HSH would undertake not to be among the top 3 ship-financing providers with the highest annual volume of new businesses.2 It should be noted that this commitment concerned markets in which HSH Nordbank had acquired strong market positions and that HSH Nordbank had a leading position on the market for ship financing. Interestingly, HSH Nordbank was also subject to a far-reaching balance sheet reduction. So the growth limitations did not substitute – in the spirit of point 32 of the Restructuring Communication – the divestments.

Other examples of cases including a growth limitation are the cases of Parex banka and Northern Rock. The restructuring plan of Parex banka provided for a split into a newly established bank named Citadele banka (the “good bank”) and Parex banka (the “bad bank”). This case thus concerned a bank in the S/C/W-context. One of the commitments of Citadele banka was a cap on new lending and deposits.3 Similarly, BankCo – the ‘good bank’ resulting from the split-up of Northern Rock – committed to cap new lending and to cap its retail deposit balances.4 The growth restriction in these cases were commitments regarding the remaining good bank (Citadele and BankCo respectively). These cases are thus characterised by downsizing (because the banks were split into a good bank and a bad bank) and growth limitations (to which the good bank had to comply).

A second observation is that the decisions only mention the growth limitation if such a growth limitation is present in the case; it is not mentioned if it is absent. The only exception is the Restructuring Decision on ING. This decision specified that ING would not have a restriction on organic growth of the balance sheet of its businesses.5 By contrast, ING was restricted in its non-organic growth: ING was subject to an acquisition ban.

A third observation is that the distinction between a reduction and a limitation is not always made clear in the decisions. This can be illustrated by the decisions on the Slovenian banks Abanka, Nova Kreditna Banka Maribor (NKBM) and Nova Ljubljanska banka (NLB). Abanka would ensure that the RWA would be capped according to the schedule included in the restructuring plan.6 This schedule is not visible in the decision, because it was treated as confidential information. Since the scheme is not visible, it cannot be established whether the cap constitutes a limitation of the RWA or a reduction of the RWA. A cap above the current level constitutes a growth limitation, while a cap below the current level constitutes a reduction. Interestingly, the restructuring plans of NKBM and NLB (two other Slovenian banks) use the words reduction instead of cap: “The reduction of NLB’s market presence in loans to the corporate sectors of construction, transport and financial holdings is achieved thanks to the yearly limitations on RWA in those sectors”.7 The confusing use of the terms ‘cap’, ‘limitation’ and ‘reduction’ makes it difficult to establish exactly how many cases are characterised by growth limitations.