5.19 Concluding observations on the case-law on bank State aid

The following table gives an overview of the cases discussed in the present chapter.1

In total, there are 17 cases (or 15, since the cases of ARCO and BPP were counted twice).2 However, this total number of cases needs to be nuanced in three ways.

In the first place, only in 9 of these 17 cases, the legality (or validity) of the Commission decision was actually assessed by the CJEU. How to explain this difference? Firstly, of the 17 cases discussed, only 13 cases concerned direct actions; the other 4 cases concerned references for a preliminary ruling. A reference for a preliminary ruling can concern the interpretation or the validity. In two of the cases (i.e. BPP and Vervloet), the referring court asked questions about the validity of the Commission decision. The other two cases (i.e. Kotnik and Dowling) did concern State aid to banks, but they did not question the validity of a bank State aid decision. Secondly, some cases were dismissed as inadmissible (though for various reasons). As a consequence, the Court did not go into the substance of the case. This means that in those cases, the legality (or validity) of the Commission decision was not assessed.

In the second place, the contested decisions in the cases of BPP, ARCO and Banco Tercas were all recovery decisions. In that sense, these cases are ‘atypical’. In the ‘typical’ bank State aid cases, Member States and banks are more reluctant to initiate legal proceedings.

In the third place, there are several cases – such as WestLB and HSH Nordbank – in which the action for annulment was not brought by the bank or Member State, but by the shareholders of the bank. Indeed, of the 13 direct actions, 8 were brought by the beneficiary bank or Member State.3 The other 5 actions for annulment were brought by the shareholders or other investors of the bank.4 It can also be observed that competing banks and other Member States are somewhat reluctant to challenge bank State aid decisions before the CJEU.

Thus, a prime observation is that most bank State aid decisions are not challenged before the Court of Justice.5 In that regard, it is worth recalling that section 1.3.2 set out a distinction between three stages: anticipating the “treatment”, negotiating the “treatment” and challenging the “treatment”. From a quantitative point of view, the third stage is not that important. In total, there are almost 100 bank State aid cases. Only in 9 cases, the CJEU actually reviewed the legality of the Commission decision. So in most bank State aid cases, the second stage is the final stage.