6.7.5 Concluding remarks

On one level, the cases are obviously not equal (because there are differences among banks, differences among State aid measures and differences among the restructuring plans). However, on a higher level, the cases are equal: in each case, the Commission should take into account the relevant characteristics. In that respect, cases are equal. Consequently, the banks should be treated equally. The “treatment” is constituted by the assessment of whether the aid is compatible. An equal treatment thus entails that every assessment should be based on the relevant characteristics. If there are cases in which the Commission does not assess the presence of the relevant characteristics, then these cases are not treated equally (as compared to other cases in which the Commission did take into account the relevant characteristics).

To conclude, this PhD-study takes the view that a correct application of the principle of equal treatment requires the following. Firstly, the Commission should asses in every bank State aid case whether the relevant characteristics are present in that case. In other words: the relevant characteristics should be consistently used as assessment criteria. Secondly, the Commission should elaborate the relevant characteristics in a consistent manner.

The principle of equal treatment as defined in this PhD-study does not completely correspond with the CJEU-definition of the principle of equal treatment. In my opinion, the principle of equal treatment is interpreted very narrowly by the CJEU – this was one of the main conclusions of chapter 5.1 It should be stressed that this PhD-study does not suggest that the CJEU should change or broaden its interpretation of the principle of equal treatment. However, this PhD-study takes the view that – irrespective of the question whether the CJEU- definition is infringed – the decisional practice is not ‘fair’ when the relevant characteristics are not consistently taken into account by the Commission. And as discussed in section 6.3.4, the Commission should not only be concerned by the CJEU-definition of the principle of equal treatment, but also by other possible interpretations of the principle of equal treatment.