This case revolves around the question of public funding of financial institutions amid the general financial crisis. However its most interesting aspect has to do with the applicability of the private investor test to the facts of the case, that is to say whether the Commission has to conduct its overall compatibility assessment of the specific state aid measure in the light of the private investor principle or not. The main facts of the case can be summarized as follows.
The Dutch State decided to support ING and adopted various aid measures to that direction. The principal aid related to a capital injection whereby the Netherlands State subscribed to a EUR 10 billion issue of securities by ING. Other aid measures in favour of the ING were an illiquid assets back-up facility granted to ING and guarantees accorded under the national credit guarantee scheme. The first two of them were the most contentious and the ones which actually underwent a judicial review. On 22 October 2008, the Kingdom of the Netherlands notified the Commission of the capital injection aid measure. The Commission found that the said support measure contained an element of aid within the meaning of Article 87(1) EC. However, the Commission declared it compatible with the common market within the meaning of Article 87(3)(b) EC, because it sought to remedy a serious disturbance in the Dutch economy as a result of the global financial crisis and approved it for a period of six months. The Commission informed the Netherlands State that if their authorities submitted a credible plan (called as ‘the restructuring plan’) before the expiry of that deadline, the decision declaring the capital injection compatible according to article 87(3)(b) EC would automatically be extended until the Commission had adopted a decision on that plan. The same procedure was followed for the illiquid assets relief measure. It was notified, the Commission approved it only for 6 months and Dutch authorities assumed the obligation to include it as well in the restructuring plan. The pivotal point of the dispute at hand lies in the following lines. The Kingdom of the Netherlands initially provided the Commission with a restructuring plan on May 2009. However, this plan was subject to some modifications and was submitted anew the last days of October 2009. The revised plan entailed an amendment to the repayment terms of the capital injection granted by the Dutch State to ING. The material difference between the initial and the revised repayment terms rests in the fact that ING under the first scheme could redeem the securities plus interest only if a dividend was paid by ING on ordinary shares while pursuant to the revised version of the repayment terms the coupon (interest) payment became mandatory. That specific change was the source of contention on whether the private investor criterion was eventually applicable. Though, it would be prudent, for sake of clarity, to present the whole sequence of legal actions preceding the dispute before the CJEU.
Moving back to the contested Commission’s decision, it established in its second article that the restructuring aid provided by the Netherlands to ING constituted State aid but it was compatible with the common market subject to the commitments accepted by the ING. Both the Netherlands and ING challenged the contested decision before the General Court. They both sought annulment of the contested decision in so far as the latter concerned the amendment to the repayment terms for the capital injection which the Commission found to represent additional aid to ING of approximately EUR 2 billion. The important part of the General Court’s decision was its conclusion that the Commission could not evade its obligation to assess the economic rationality of the amendment to the repayment terms in the light of the private investor test solely on the ground that the capital injection subject to repayment itself already constitutes State aid. The Commission appealed against the decision of the General Court raising the following grounds of appeal:
Ø first, there is no requirement to apply the private investor test to an amendment of repayment terms for a measure that itself constituted State aid;
Ø second, the General Court wrongly evaluated the loss of revenue to the State resulting from the amendment to the repayment terms;
Ø third, even if the Commission wrongly treated the amendment to the terms as State aid, the General Court was not entitled to annul the entire first paragraph of Article 2 of the contested decision;
Ø fourth, the General Court erred in law in finding that the second paragraph of Article 2 of the contested decision was necessarily unlawful because the Commission had erred in finding that the amendment to the repayment terms constituted State aid;
Ø fifth, the General Court ruled ultra petita in annulling the second paragraph of Article 2 of the contested decision and Annex II thereto;
Ø sixth, in the alternative, if the General Court was correct to annul the first and second paragraphs of Article 2 of the contested decision and Annex II thereto, it could not refrain from annulling the third paragraph of Article 2.
After presenting the grounds on appeal, we will exclusively focus on the first ground pertaining to the alleged applicability of the private investor principle.
The private investor criterion
In its first ground of appeal, the Commission, in essence, sustains that since the private investor test could not be applied to the capital injection measure -whose inseparable component was the repayment terms either new or amended- provided that no private investor could ever find itself in a situation in which it had provided State aid to ING, it was adequate to examine the amendment to the repayment terms only as to whether the amendment conferred an additional advantage on ING. The Dutch State and ING disagreed with that approach. They claimed that the Commission wrongfully omitted to subject the amendment of the repayment terms to the private investor test. They argued to that end that the decision to amend the repayment terms could be deemed as a separate measure in the context of which the Dutch State could be substituted by a private investor. The Court eventually dismissed the allegations of the Commission. It found that the private investor test was indeed applicable to the amendment of the repayment terms because the Dutch State decided to stipulate new repayment conditions not under its capacity as a public authority but instead as a shareholder of ING. In other words, the Dutch State’s position as to its decision to agree upon an amendment of the repayment terms could be hypothetically but meaningfully compared to the respective situation of a private investor.
What is surprising in this case is how tenuous was the Commission´s assertion that the private investor test was not applicable to the amendment of the repayment terms as an additional aid measure. The Commission actually sought to circumscribe the applicability of the private investor test and thereby streamline the analysis required when applying it to a certain set of facts. The untenability of its position, namely that there was no scope for applying the private investor test to the capital injection including its repayment terms, whether original or amended) is apparent. The Commission attempted to establish that the amendment of the repayment terms should be viewed as an integral part of the capital injection measure. The arbitrariness of that plea is demonstrated by the adoption of an extreme paradigm of repayment amendment.
For example, a possible admission of the argument that the amended repayment terms shall not trigger their individual scrutiny under the private investor test could even exonerate a revision of the repayment conditions which would practically amount to granting redemption forgiveness in favour of ING. Therefore, this absurd result accentuates the inconsistency of accepting that the private investor test should solely apply to the capital injection measure, even after the amendment of its repayment terms. After the terms were amended the private investor criterion had to be applied to the new facts on the grounds that the new repayment terms could be individually distinguished from the capital injection measure itself.
In connection to the issue whether the capital injection measure and the amended terms were indivisible, the AG in her opinion made an important distinction. She alleged there are two possible approaches. On one hand, there is the possibility of reassessment of the capital injection as a whole, substituting the amended repayment terms in the place of the original terms, in order to determine anew the amount of aid and, on the other hand, the assessment of the amendment to the terms as a separate measure, in order to determine whether and, if so, to what extent State resources were used to provide ING with a benefit. The Commission opted for the second possibility. Therefore, it was not entitled to claim that the private investor test was not applicable by reason of a putative non-severable relationship between the capital injection and the amendment of the repayment terms. According to the AG´s understanding, if the Commission had opted for the first approach it would have had the right to claim that the private investor principle indeed had no scope of application upon the additional aid deriving from the amendment of repayment terms. Having said so, the AG virtually sets the procedural pattern of assessing the amended terms as the determinant of the applicability of the private investor test. This holding could be held to be in part problematic. The shortcoming of this solution consists in the fact that first, either way the amendment of the repayment conditions would constitute an additional aid measure conferring an identifiable benefit to ING and, second, the classification of the intervention of the Dutch State as a decision adopted in its shareholder capacity of ING is still valid. By way of explanation, the selection of the first or second approach of assessment of the amended repayment terms could not lead to different conclusions either as to whether the Commission was entitled to consider them as inseparable or as to whether the private investor test was applicable. As a result, the fact of the amendment of the repayment terms itself dictates the private investor criterion applicability.
Finally, having recourse to existing case law, we can find a subsidiary argument with respect to when particular aspects of state aid measures are considered as integral parts of them and therefore they do not have to be subjected to the private investor test.
In the AEM case, the Court opined that because the method by which an aid is financed may render the entire aid scheme incompatible with the common market, the aid cannot be considered separately from the effects of its method of financing. Then the Court moved on to examine to what extent the method of financing of a state aid measure can be regarded as an integral part of the measure at hand. The conclusion was that for a financing method (in that particular case a special tax measure has been employed) to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid measure under the relevant national rules, in the sense that the revenue from the aid measure is necessarily allocated for the financing of the aid. It is only in the event of such hypothecation that the revenue from the aid measure has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of the aid with the common market. The corollary from the above principle of hypothecation is that even the financing method of a state aid could be deemed not to be an integral part of the aid measure. Thus, the Commission’s view that another aspect of an aid measure, besides the financing method, that is to say the repayment terms of an aid measure, can be invariably considered as inseparable from the aid measure itself (in the present case the capital injection) is manifestly unfounded.
The present judgment is very important for the interpretation of the private investor criterion. It bears particular weight because it sets ground rules for the under-analysed and therefore more obscure question of the applicability of the private investor test, as opposed to the rules for the application of the test, which have been systematically dealt with by courts and commented by legal scholars.
 As AG Eleanor Sharpston stated in its opinion on the case, as regards the guarantees, the situation is less clearly stated in the contested decision, but there is no indication that there had been an earlier decision finding the guarantees already paid to constitute State aid.
 Financial technicalities of the initial and the revised repayment terms are regarded as redundant for the purpose of the present article because they add to the complexity and moreover they are mostly decisive for the application (not applicability) of the private investor criterion which is not examined here. However, the bottom line in relation to the old and the new repayment terms is that under the old one the Dutch State had the possibility to get increased return by the repurchase of the securities because ING had two option for redeeming [either to re-buy them the first three years for 15 € each (50% over their issue price) or to convert them into ordinary shares after the third years and redeem them (charged with interest only if ING had chosen to give dividends on ordinary shares).
 Moreover, the contested decision included that a 6-month limitation on balance sheet growth imposed upon ING by virtue of the initial decision of the Commission by which the latter declared the capital injection measure as provisionally compatible within the meaning of article 87(3)(b) EC until the submission of a comprehensive restructuring plan. This was the subject of the sixth ground of appeal which will not be analyzed here, beyond mere reference to what that ground was about.
 Paragraph 19 of the judgment at hand
 This principle was devised by the Commission in order to ascertain whether a public authority granting public funding to privately-owned or state-owned undertakings can be equated with a private investor, thereby relieving the public intervention from any competition-distorting effects because that specific financial backing could expectedly happen by normal market forces. It constitutes sort of a benchmark principle according to which competition authorities and courts examine whether the State acted either as a public authority which solely exercises its public powers or as a private investor who seeks profit-generating investments.
 C-128/03, AEM v Autorità per l'energia elettrica e per il gas and Others,  ECR I-2861
 Ibid, para.45-46