5.16 The case of Banco Espirito Santo (II)

This case concerned the Monitoring Trustee appointed in the case of Banco Espírito Santo (BES). Pursuant to point 9 and 18 of Annex II of the BES- decision, the Monitoring Trustee was to be remunerated by the Bad Bank. In the present case, Banco Espírito Santo (i.e. the Bad Bank resulting from the split-up of BES) sought the partial annulment of point 9 and 18 of Annex II of the BES- decision. The applicant argued that there was no basis (in the EU legislation concerning State aid) for imposing the responsibility for remunerating the Monitoring Trustee on the Bad Bank, which was not an addressee of the BES- decision nor a beneficiary of the aid.

On 1 December 2015, the General Court rendered its judgment. As regards the admissibility of the action for annulment, the General Court recalled that partial annulment of a Commission decision is possible only if the elements whose annulment is sought may be severed from the remainder of the decision. The General Court concluded that this was not the case. The appointment of a Monitoring Trustee was one of the commitments made by Portugal. In that regard, the General Court recalled that when the Commission adopts a decision not to raise objections, it does so by taking into account the commitments made by the Member State. The commitments thus form an integral part of the notified measure. Since the commitments are inextricably linked to the notified aid measure, the applicant cannot seek the annulment of only the commitments.1 The action for partial annulment was therefore inadmissible.