Action brought on 29 April 2016 — Banca Tercas v Commission

(Case T-196/16)

Language of the case: Italian

Parties

Applicant: Tercas-Cassa di Risparmio della Provincia di Teramo S.p.A (Banca Tercas S.p.A) (Teramo, Italy) (represented by: A. Santa Maria, M. Crisostomo, E. Gambaro and F. Mazzocchi, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul European Commission Decision C(2015) 9526 final of 23 December 2015, notified to the applicant on 22 February 2016, on State aid SA.39451 (2015/C) (ex 2015/NN) implemented by Italy for Banca Tercas (Cassa di Risparmio della Provincia di Teramo S.p.A);

in the alternative, for the reasons set out in the seventh plea in law, annul Articles 2, 3 and 4 of the decision referred to above;

order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present action is the same as the decision contested in Case T-98/16, Italy v Commission.

In support of its action, the applicant relies on seven pleas in law.

By the first plea in law, Banca Tercas (‘the applicant’ or ‘Tercas’) complains that the Commission has infringed and misapplied Article 107(1) TFEU and Article 296 TFEU by failing to provide any and/or adequate reasons as regards whether the necessary requirements relating to ‘State resources’ and ‘imputability to the State’ have been met, in so far as the Commission gives priority to the analysis of the State resources criterion over the analysis of the imputability criterion and fails to verify independently whether the requirement relating to State resources, one of the criteria for establishing the existence of State aid for the purpose of Article 107(1) TFEU, has been met.

By the second plea in law, the applicant alleges that the Commission has infringed and misapplied Article 107(1) TFEU, as it has found, incorrectly, that there has been use of State resources by the Italian Interbank Deposit Protection Fund (‘the Fund’ or ‘the IDPF’). According to the applicant, this constitutes a manifest error of assessment by the Commission, as the IDPF’s resources cannot be regarded, in the light of the criteria established by the case-law of the Courts of the European Union, as being under public control or available to the Italian State. The Italian legislature has left it entirely to the guarantee schemes’ discretion to determine both the aim and scope of any measures used as alternatives to reimbursing depositors and the concrete ways in which those measures are to be implemented. The alternative measures referred to in Article 29 of the Fund’s Articles of Association may be activated by the Fund if it is foreseeable that the costs thereof will be lower than those arising from intervention in the event of liquidation; they would chiefly serve the associated banks’ private interests and cannot be attributed to the exercise of a public mandate.

By the third plea in law, the applicant alleges infringement and misapplication of Article 107(1) TFEU in so far as the Commission considers that the measures in favour of Tercas are imputable to the Italian State. It maintains, in that regard, that the IDPF has made a voluntary commitment to such intervention and the argument put forward by the Commission, which describes the Bank of Italy as a body managing (purportedly) public resources, is incorrect and does not convey the true sense of the functions which are ascribed to that central bank under the Italian legal system. The activities of the Bank of Italy are aimed at verifying compliance with the principle of sound and prudent management, on the basis of a simple examination of lawfulness and regularity, without prejudice to the free individual choices of the persons supervised by that Bank. In addition, the specific evidence of intervention by the public authorities referred to by the Commission in connection with the intervention in favour of Tercas is manifestly incapable of supporting the conclusion reached by the Commission.

By the fourth plea in law, the applicant claims infringement of Article 107(1) TFEU in connection with the misapplication of the private operator in a market economy test. It argues in that regard that the Commission did not verify whether the IDPF’s intervention satisfied the economic rationality test, in the light of the factors meticulously considered by the IDPF in its assessment of the future effects of potential intervention scenarios. In particular, it claims that the Commission did not verify whether, in similar circumstances, a private operator of a size comparable to the IDPF would have carried out economic transactions on a scale similar to those which have been contested by that institution. Lastly, the decision to exclude the costs of reimbursing depositors from the application of the private investor test — as an expression of the obligations which the State assumes as a public authority — is not justified in the present case and is in conflict with the most recent case-law of the Courts of the European Union.

By the fifth plea in law, the applicant sets out the reasons why the Commission made a manifest error of assessment in deeming the measures in question incompatible with the internal market. In particular, the Commission erred in finding that the devaluation of the subordinated debt, provided for ratione temporis only in its 2013 banking communication, is an essential requirement for any conclusion that the measures are compatible with the internal market. In particular, it did not take account of the legal impossibility of imposing burden-sharing on the part of the persons liable to pay that subordinated debt. In addition, the Commission failed to take into consideration the fact that the costs of intervention had already been substantially reduced by significant burden-sharing measures. The compatibility of the measures is also apparent from the plan for returning Tercas to a state of viability and from the presence of measures to limit the alleged distortion of competition arising following the IDPF’s intervention. Therefore, the applicant also argues that there has been a manifest failure to make inquiries.

By the sixth plea in law, the applicant alleges that the Commission made a factual error and an incorrect legal classification in deeming the guarantee of EUR 30 000 000 to have been called on and in regarding such a measure as the equivalent of a non-repayable grant to Tercas and, therefore, as equivalent to State aid.

Lastly and in the alternative, by the seventh plea in law Tercas complains of infringement of Article 16(1) of Regulation (EU) No 2015/1589, on the ground that the Commission has ordered the Italian State to recover the aid notwithstanding the fact that this is contrary to the general EU principles of legal certainty, protection of legitimate expectations, and proportionality.

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