Case T-36/06

Bundesverband deutscher Banken eV

v

European Commission

(State aid – Transfer of public assets to Landesbank Hessen-Thüringen Girozentrale – Decision finding that the notified measure does not constitute aid – Private investor test – Duty to state reasons – Serious difficulties)

Summary of the Judgment

State aid – Examination by the Commission – Preliminary stage and inter partes stage – Compatibility of aid with the common market

(Arts 87(1) EC and 88(2) and (3) EC)

The procedure under Article 88(2) EC, which guarantees the Member States and the sectors concerned an opportunity to make their views known and allows the Commission to be fully informed of all the facts of the case before taking its decision, is essential whenever the Commission has serious difficulties in determining whether a State measure is compatible with the common market. The Commission cannot therefore limit itself to the preliminary procedure under Article 88(3) EC and take a favourable decision on a State measure unless it is in a position to reach the firm view, following an initial examination, that the measure cannot be classified as aid within the meaning of Article 87(1) EC or that the measure, while constituting aid, is compatible with the common market.

While the Commission’s powers are circumscribed as far as initiating that procedure is concerned, it may, in accordance with the objective of Article 88(3) EC and with its duty of good administration, engage in a dialogue with the notifying State or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. However, the notion of serious difficulties is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content. That investigation must be conducted objectively, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market. The applicant bears the burden of proving the existence of serious difficulties and may discharge that burden of proof by reference to a body of consistent evidence, concerning, first, the circumstances and the length of the preliminary examination procedure and, second, the content of the contested decision.

The question whether the Commission misapplied the private investor test is not to be confused with the question whether there are serious difficulties which require the formal investigation procedure to be initiated. Consideration of whether serious difficulties exist is not aimed at establishing whether the Commission applied Article 87 EC correctly, but whether, at the time of its adoption of the contested decision, there was sufficiently comprehensive information available to it to enable it to assess the compatibility of the disputed measure with the common market.

Furthermore, the fact that the Commission did not respond to certain complaints raised by the applicant in connection with a parallel case does not imply that the Commission was not in a position to take a decision on the measure in question on the basis of the information available to it or that it was, therefore, required to initiate the formal investigation procedure in order to complete its enquiry. Any argument raised by an interested party in the context of a separate procedure relating to similar circumstances is not necessarily likely to give rise to serious difficulties requiring the initiation of the formal procedure. Where, as in the present case, the Commission has initiated the formal investigation procedure in respect of similar transactions and, on that occasion, there has been some discussion about the importance of certain characteristics common to all the transactions, it may be concluded that, not only does the Commission have the information at the date of adoption of the contested decision allowing it to assess the relevance of those characteristics, but also any interested person has had the opportunity to provide the Commission with all the information he or she deems necessary in that respect.

(see paras 125-127, 129-131)