5.5 The case of WestLB

This case concerned the State aid to WestLB. An important aspect of this case is that the action for annulment was not brought by the bank or the Member State, but by one of the shareholders of the bank.

The background of the case was as follows. The decision on WestLB of 12 May 2009 (“the WestLB-decision”) included an obligation for the owners of WestLB to sell WestLB to an unconnected third party (hereafter: “the obligation to sell”). In the opening decision, the Commission had already noted that the difficulties of WestLB were probably due to its ownership structure and to the different interests among the owners and expressed its doubts as to the possibility of an appropriate strategic reorientation in the absence of a solution to those structural issues. Westfälisch-Lippischer Sparkassen- und Giroverband was one of the owners of WestLB and brought the present action for annulment.1

On 17 July 2014, the General Court rendered its judgment.2 One of the major questions in this case was whether the action was admissible. Since the WestLB- decision was addressed only to the Member State, the applicant would only have standing to bring proceedings if it was directly and individually concerned by that decision.

In that regard, the General Court noted that the applicant had an interest in bringing proceedings separate from that of WestLB as regards the obligation to sell. Indeed, that obligation applied only to the owners, who were forced to waive their property rights in WestLB in order for the aid granted to that bank to be authorised. WestLB, however, was not required to take any action under that obligation, which did not affect its assets and had no bearing on its conduct on the market. However, as regards the other conditions attaching to the WestLB-decision, including those relating to the reduction of WestLB’s balance sheet, the General Court noted that they related to the commercial activity of that bank and the sale or liquidation of its assets. WestLB could itself put forward any argument, in the context of an action brought against the WestLB- decision, relating to the unlawfulness or to the absence of necessity for those conditions.3

The Court held that, as regards the conditions attaching to the WestLB- decision other than the obligation to sell, the applicant’s interest in bringing proceedings was indissociable from that of WestLB and, therefore, it was not individually concerned by the WestLB-decision. However, the applicant was individually concerned by that decision in so far as authorisation of the guarantee at issue was made subject to compliance with the obligation to sell.4

Consequently, the pleas put forward by the applicant were admissible only in so far as they were intended to show that the inclusion of the obligation to sell in the WestLB-decision was unlawful.

In support of its application, the applicant submitted eight pleas in law. Those pleas alleged infringement, first, of the principle of collegiality, secondly, of Article 87(1) EC, since the distortion of competition caused by the guarantee at issue was not examined, thirdly, of Article 87(3)(b) EC, fourthly, of the principle of proportionality, fifthly, of the principle of equal treatment, sixthly, of Article 295 EC, seventhly, of Article 7(4) of the Procedural Regulation, and, eighthly, of the obligation to state reasons. All these pleas were rejected as unfounded by the General Court. In the context of this PhD-study, the plea alleging an infringement of the principle of equal treatment is most interesting. This plea in law will be discussed in section 5.20.2.