Einde inhoudsopgave
State aid to banks (IVOR nr. 109) 2018/13.6.3.1
13.6.3.1 The relevance of the aid intensity
mr. drs. R.E. van Lambalgen, datum 01-12-2017
- Datum
01-12-2017
- Auteur
mr. drs. R.E. van Lambalgen
- JCDI
JCDI:ADS590604:1
- Vakgebied(en)
Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht
Voetnoten
Voetnoten
To some extent, the compensatory measures are related to the competitive impact of the aid. Nevertheless, some compensatory measures are always required by the Commission, irrespective of the precise competitive impact. The prime example is the acquisition ban. This compensatory measure is always required (in cases in the C-context).
The Restructuring Decision on MPS (SA.36175, 27 November 2013, para. 152-155) is a good example.
Pursuant to the restructuring plan, HSH Nordbank would reduce its balance sheet by 61% by the end of 2014 compared to 2008.
HSH Nordbank, SA.29338, 20 September 2011, para. 266.
Hypo Real Estate (HRE), C15/2009, 24 July 2009, para. 66. Sometimes, there is a difference between the Opening Decision and the Restructuring Decision. For instance, in the Opening Decision on EBS, “the Commission criticised that the proposed balance sheet reduction was far less substantial than the Commission would normally have expected from a bank having received such a high amount of aid, both in absolute terms and in terms of risk weighted assets” (AIB/EBS, 7 May 2014, para. 91). The Opening Decision thus stressed the relation between the aid amount and the balance sheet reduction. However, in the Restructuring Decision on AIB/EBS, the Commission did not mention the balance sheet reduction in its assessment of the compensatory measures. The case was characterised by a balance sheet reduction, but this was only mentioned in the context of the viability.
To some extent, the balance sheet reduction is related to the relative amount of State aid: one would expect that the larger the relative amount of aid, the larger the balance sheet reduction.1 It should, however, be kept in mind that the competition distortions are not only influenced by the amount of aid, but also by other factors such as the market presence. Furthermore, the balance sheet reduction is not the only compensatory measure. All this raises the following question: is the percentage of the balance sheet reduction always mentioned in combination with the relative aid amount?
On the basis of the analysis of the decisional practice, the following observations can be made.
In the first place, there are decisions that show the following pattern.2 Firstly, the aid amount (as a percentage of the bank’s RWA) is mentioned. Secondly, it is concluded that the aid amount must be reflected in the compensatory measures. Thirdly, the compensatory measures are discussed, one of which is the balance sheet reduction. So there is some relation between the percentage of the balance sheet reduction and the aid amount, but it is not a direct relation (since the balance sheet reduction is only one of the compensatory measures).
In the second place, there are decisions in which the percentage of balance sheet reduction was explicitly mentioned in combination with the aid amount. For instance, in the Restructuring Decision on HSH Nordbank, the Commission noted that “the reduction of HSH by more than half3 is appropriate, given the distortions of competition stemming from the large amount of aid received”.4 Another example is the Opening Decision on HRE, in which the Commission expressed its view that it expected additional measures: the Commission considered that the balance sheet reduction of 25% in the case of HRE seemed insufficient in view of the aid amount.5
In the third place, there are decisions in which the percentage of the balance sheet reduction was not mentioned at all. For instance, the decision on IL&P indicates that the bank will reduce the size of its balance sheet to a level of EUR [20-30] billion, but a specific percentage is not mentioned.
To conclude, the decisional practice does not show a consistent picture of the relation between the aid amount and the balance sheet reduction.