13.5.3.3 An inconsistency?

As explained above, there is a link between divestment-related commitments and divestments aimed at creating a new competitor. However, this link is not consistently made in the decisions.

The decisions on RBS, LBG, KBC, Ethias, ING, Bank of Ireland, Parex, LBBW, Sparkasse KölnBonn, ATE contain value-preservation commitments.1 With the exception of LBBW, all these cases are also characterised by purchaser requirements.2 Most of these cases are characterised by divestments aimed at creating a new competitor. So the fact that these cases contain value-preservation commitments and purchaser requirements makes sense.

However, there are also divestment-related commitments in the cases of LBBW, Sparkasse KölnBonn and ATE. This is somewhat peculiar, because the divestments in these cases were not specifically aimed at creating a new competitor. For instance, the restructuring plan for LBBW envisaged that LBBW would divest a large number of subsidiaries. In the Restructuring Decision, it is not clearly mentioned whether those divestments were aimed at creating challenger banks. However, one of the commitments was “to ensure that the value of the units to be sold would not be affected by the fact that customers or staff would be lured away from these units”.3 This seems to be a value preservation commitment. This is somewhat surprising, because the divestment was not specifically aimed at creating a new competitor.

Another case featuring divestment-related commitments is the case of Sparkasse KölnBonn. Section C of the Annex of the Restructuring Decision contains divestment-related commitments. However, the rationale of these divestment- related commitments cannot be found in the assessment-part of the decision. The same observation can be made with respect to ATE (2011). While the annex of a Commission decision constitutes an integral part of the decision4, one would expect that the rationale of commitments enshrined in the annex can be found in the recitals of the decision. However, in the case of Sparkasse KölnBonn and ATE (2011), the divestment-related commitments enshrined in the annex of the decisions cannot be linked to the recitals of the decision. In my opinion, this is incoherent.

In addition to being incoherent, the fact that this link is missing in these decisions amounts to an inconsistency, since the decisions on RBS, LBG, KBC, Ethias, ING, Bank of Ireland and Parex do contain a link between divestment- related commitments and divestments aimed at creating a new competitor.

And even with respect to the cases in which the divestment was aimed at creating a new competitor, the link between this type of divestment and the divestment-related commitments is not consistently made. For instance, the purchaser requirements in the case of RBS only concerned the Rainbow Business. This makes sense, since only the divestment of the Rainbow Business was aimed at creating a new competitor, whereas the other divestments had other purposes (i.e. own contribution of the bank). By contrast, the purchaser requirements in the case of Ethias concern the divestment of Ethias banque, Nateus Group and Belré, while only the divestment of Nateus Group was aimed at creating a new competitor.

Thus, the main finding is that in some cases, the divestment-related commitments apply to all divestments, whereas in some other cases, the divestment- related commitments only apply to the divestments that are specifically aimed at creating a new competitor. This finding points at an inconsistency.