6.3.2 When is a definition satisfactory?

In my opinion, a definition of the principle of equal treatment is satisfactory when it can remedy the lack of clarity that was established in section 1.2. This lack of clarity concerns the fact that there are many differences among the cases and many differences among the treatments.1

As regards the differences among the treatments, it should be recalled that the restructuring measures are different for each beneficiary bank. Some banks have to divest a substantial part of their activities, while other banks do not have to divest so much. Also the behavioural commitments may differ. All these differences mean that there is a different treatment. However, a different treatment does not necessarily mean that the principle of equal treatment is violated. A different treatment is justified if the cases are different.

As regards the differences among the cases, it was described in chapter 3 that there is a wide variety of State aid measures. These measures can differ in several ways. First of all, some measures are part of a general rescue scheme, while other aid measures are adopted on an ad-hoc basis. Secondly, some measures (such as impaired asset measures) are targeted at the asset-side of the balance sheet, whereas other measures (such as recapitalisations and guarantees) are targeted at the liability-side of the balance sheet. Thirdly, the size and modalities of the aid measures are different. Fourthly, sometimes banks benefit from solely one aid measure, but sometimes a combination of different measures is taken for a particular bank. Moreover, not only aid measures are different; banks themselves are also different. Banks can differ in size, scope, business model, activities, funding, etc. All those characteristics make banks different from each other.

It is thus abundantly clear that bank State aid cases are different. Because of all those differences, the situations of beneficiary banks are not the same. In Aristotelian terms, the cases are not alike. Consequently, the cases should not be treated alike. This makes it quite evident that the treatment should not be the same. But do the differences between the State aid cases justify the differences in treatment?

This question is not easy to answer. In that regard, there is a lack of clarity. The purpose of this PhD-study is to provide clarity. As a corollary, the definition (of the principle of equal treatment) employed in this PhD-study should be capable of providing clarity. Otherwise, the definition would not be satisfactory for the purposes of this PhD-study.