As the title reveals, the present decision deals with a bundle of recapitalisation measures in favour of a Dutch financial institution, ABN AMRO. Those measures were codified in the form of a Restructuring Plan which was subsequently amended. The Commission issued a decision which declared, subject to conditions, the compatibility of the restructuring plans in the light of the communication on bank restructuring. The only condition whose validity was challenged by the applicant financial institution was an acquisition ban laid down in article 5 of the contested decision and reads as follows:
1. [ABN Amro] shall not acquire control of more than 5% of any undertaking.
2. By derogation from paragraph 1, [ABN Amro] may make acquisitions if the total gross cumulative purchase price (excluding the assumption or transfer of debt in relation to such acquisitions) paid by [ABN Amro] for all such acquisitions during a period of 3 years following the date of [the contested decision] is less than EUR [confidential] million(1).
The prohibition laid down in paragraph 1 shall not apply to private equity acquisitions by [ABN Amro] if they fit within its business plan and the planned budget of its “Private Equity” division as submitted to the Commission on 5 October 2010.
The prohibition laid down in paragraph 1 shall also not apply to [confidential] equity stakes taken by [ABN Amro]’s division “Energy, Commodities and Transportation” in support of its normal financing business if they fit within [ABN Amro]’s business plan and the planned budget of that division as submitted to the Commission on 10 January 2010.
3. The prohibition laid down in paragraph 1 shall apply for at least 3 years as from the date of [the contested decision] or until the date on which the [Dutch State’s] shareholding stake in [ABN Amro] falls below 50%, whichever is later. That prohibition shall cease to apply at the latest 5 years as from the date of [the contested decision].
In the event that the prohibition laid down in paragraph 1 applies for more than 3 years as from the date of [the contested decision], the total gross cumulative purchase price applicable under subparagraph 1 of paragraph 2 shall be increased by EUR [confidential] per year.’
ABN AMRO brought an action against that decision, in order to challenge the scope and duration of the prohibition as formulated in the contested decision. The applicant’s grounds of complaint involved an infringement of Article 107(3)(b) TFEU and a misapplication of the communications, an infringement of the principle of proportionality, an infringement of the principle of equal treatment, an infringement of the principle of good administration, together with a failure to state reasons under Article 296 TFEU and an infringement of article 345 TFEU, in that the duration of the acquisition ban is dependent on the shareholding held by the State. All the above claims were eventually rejected by the Court. Because the decision of the Court is lengthy we are going to focus only on the most important and decisive parts of it.
v In the context of the claim on misapplication of the communications by the Commission, the applicant in essence argued that the acquisition ban was not justified according to the principles laid down in the communications and that a provision in the contested decision allowing the possibility of submitting a request for approval of specific transactions should have been accepted. In more detail, ABN AMRO claimed that the prohibition was worded in too strict terms and that it should only concern acquisitions which have an effect on competition, namely when the future acquisition would relate to another undertaking/competitor active in the same market as itself. The Commission dismissed that argument by indicating that ABN AMRO had constructed its argument in a false base. ABN AMRO had misread the communication in that it relied on points 39 & 40 of the Restructuring communication while the relevant principle for the determination of the alleged scope of any acquisition ban lies in point 23 of the communication. What the ABN AMRO actually misperceived is that all the State aid financial crisis communications were enacted in order to serve an overarching objective, that of ensuring the viability of the body receiving aid which consequently dictates the obligation to respect the principle that the aid must be limited to the strict minimum. The distortion of competition does not constitute part of that primary objective. It is only a secondary objective to the implementation of acquisition bans which must be read in conjunction with the principle to keep aid to the minimum necessary. This is easily demonstrated by the fact that the points invoked by the parties to the dispute come under different chapter of the communication. Therefore, the Court held that the concern to restrict the amount of aid to the strict minimum was the fundamental reason for the acquisition ban imposed in this case.
v The case can be also seen as a useful handbook on what kind of arguments could be successful in challenging the wide scope of any acquisition ban. A reverse approach would suggest that the far-reaching nature of an acquisition ban cannot be rebutted on the basis of considerations that a) the aided undertaking and subject of the prohibition received lower amount of aid compared to undertakings in other cases, b)the State aid measure was not urged by excessive risk taking activities or poor risk management and unsustainable business conduct, c) the restructuring was completed and the recipient undertaking should be free to make acquisitions given that profits generated, as a result of the provision of State resources, should be used for the repayment of the State by priority, d) the efficiency of the beneficiary bank’s business is worth protecting provided that the Restructuring communication rather adopts as a criterion for the adoption of remedial measures its viability, e) the imposition of an acquisition ban instead of intervening to the organic growth of the beneficiary bank (for example restriction on balance sheet growth) is selective or discriminatory in so far as it is apparent that the expected growth is not manifestly out of proportion to what is necessary to ensure the bank’s long term viability, and f) a beneficiary making an acquisition does not demonstrate, by definition, that the aid is not limited to the minimum necessary in view of the fungible nature of money and the absence of a direct and safe link with a specific asset of a bank.
In connection to the above different types of arguments, the lawfulness of a wide-ranging behavioural remedy such as a acquisition ban must be confirmed, as a matter of principle, only in the event of limited or no application of structural remedies (for examples divestments). Thus, the Commission always checks whether a sound balance between behavioural and structural remedies exists and accordingly adjusts the degree of severity of the behavioural measures. Hence, the requirement, by the Commission, for substantial divestments of a beneficiary financial institution in order to accord approval for recapitalization aid measures comprises the makeweight of limited in scope behavioural measures.
v The allegation of breaching the principle of the equal treatment through the enforcement of a broad acquisition ban which is significantly more strict than in other decisions should be excluded altogether as an ill-founded ground of complaint in any similar case. This assertion follows from the general reasoning of the Court. It specifically stated that that «…a comparison of the individual measures imposed in different decisions is particularly dangerous…» and that «…even if the possibility of comparing specific restructuring measures and conditions laid down by different decisions in abstracto is not inconceivable, it remains the case that the restructuring of an undertaking and the conditions subject to which aid is granted must be targeted on the specific problems which are characteristic of that undertaking and that the experience of other undertakings, in different contexts, may be irrelevant…». Therefore, the comparability of different cases is a totally relative and casuistic question which, most of the times, will be ruled out due to significant factual disparities between them.
v ABN AMRO claimed that Article 345 TFEU was infringed in that Article 5 of the contested decision established a link between the State ownership of at least 50% of ABN AMRO’s shares and the applicability of the acquisition ban for a maximum of two years following the initial period of three years. ABN AMRO argued, in particular, that Article 345 TFEU prohibits the Commission from taking a decision which involves making a distinction based on whether an undertaking is in private or public ownership and that to hold that State ownership constitutes State aid and results in itself in an advantage equivalent to State aid is unlawful. In the same vein, the Court dismissed that argument as well. It supported that the Commission did not treat State ownership as the equivalent of State aid but instead used the end of State ownership as a proxy for estimating when the advantage deriving from the aid ends. It identified an objective reason why the State’s majority shareholding in the bank can be used as a point of reference in that context, and consequently there can be no question of discrimination against State ownership.
 T-319/11 - ABN Amro Group v Commission, not yet published. In the following link you can find the Court’s press release: http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140052en.pdf
 Commission communication on the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (OJ 2009 C 195, p. 9)
 State aid must not be used to the detriment of competitors which do not enjoy similar public support.
 ...Subject to point 41, banks should not use State aid for the acquisition of competing businesses…
 Restructuring aid should be limited to covering costs which are necessary for the restoration of viability. This means that an undertaking should not be endowed with public resources which could be used to finance market-distorting activities not linked to the restructuring process. For example, acquisitions of shares in other undertakings or new investments cannot be financed through State aid, unless this is essential for restoring an undertaking’s viability. Emphasis added to the last sentence which does not distinguish between competing and non competing undertakings.
 Paragraph 50 of the judgment at hand
 That is to say Chapter 3. Own contribution by the beneficiary (burden sharing) & Chapter 4. Limiting distortions of competition and ensuring a competitive banking sector respectively.
 Paragraph 56-62 of the judgment at hand
 See paragraph 63&93 of the judgment at hand to that effect. In our case the Court held that no structural remedies were imposed upon ABN AMRO.
 Paragraph 113 of the judgment at hand
 Paragraph 145 of the judgment at hand
 Paragraph 151 of the judgment at hand
 Paragraph 154 of the judgment at hand