Error! Reference source not found.

Action brought on 28 January 2010 - ING Groep v Commission

(Case T-33/10)

Language of the case: English

Parties

Applicant: ING Groep NV (Amsterdam, Netherlands) (represented by: O. Brouwer, M. Knapen and J. Blockx, lawyers)

Defendant: European Commission

Form of order sought

annul the contested decision, including for lack of or inadequate reasoning, insofar as the decision qualifies the amendment to the CTI transaction as additional aid in the amount of EUR 2 billion;

annul the contested decision, including for lack of or inadequate reasoning, insofar as the Commission has subjected the approval of the aid to the acceptance of price leadership bans as set out in the decision and Annex II thereof;

annul the contested decision, including for lack of or inadequate reasoning, insofar as the Commission has subjected the approval of the aid restructuring requirements that go beyond what is appropriate and required under the Restructuring Communication;

order the Commission to bear the costs of the proceedings.

Pleas in law and main arguments

In the context of the turmoil on the financial markets in September/October 2008, the Dutch State injected, on 11 November 2008, EUR 10 billion of Core Tier 1 capital (hereinafter: "CTI Transaction") in ING (referred to also as "the applicant"). This aid measure was provisionally approved by the European Commission on 12 November 2008 for a period of six months.

In January 2009, the Dutch State agreed to take over the economic risk relating to a part of some of the applicant's impaired assets. This measure was provisionally approved by the European Commission on 31 March 2009, whereby the Dutch State committed itself to submit a restructuring plan concerning the applicant. In October 2009, the applicant and the Dutch State concluded an amendment to the original CTI transaction in order to allow an early repayment of half of the CTI capital injection. A final version of the applicant's restructuring plan was submitted to the Commission on 22 October 2009.

On 18 November 2009, the Commission adopted the contested decision in which it approved the aid measure subject to the restructuring commitments listed in Annex I and II of the decision.

By means of its application, the applicant seeks partial annulment of the decision of 18 November 2009 on the state aid No C 10/2009 (ex N 138/2009) implemented by the Netherlands for the applicant's Illiquid Assets Back-Up facility and Restructuring Plan insofar as it allegedly (i) qualifies the amendment to the CTI transaction as additional aid in the amount of EUR 2 billion, (ii) has subjected the approval of the aid to the acceptance of price leadership bans and (iii) subjected the approval of the aid to restructuring requirements that go beyond what is proportionate and required under the Restructuring Communication.

The applicant submits that the contested decision should be partially annulled on the following grounds:

On the basis of its first plea, relating to the amendment to the CTI transaction, the applicant claims that the Commission:

(a) infringed Article 107 TFEU, in finding that the amendment to the Core Tier transaction between the applicant and the Dutch State constituted State aid; and that it

(b) infringed the principle of care and Article 296 TFEU resulting from a failure to carefully and impartially examine all the relevant aspects of the individual case, to hear the persons concerned and to provide adequate reasoning for the contested decision.

On the basis of its second plea, relating to the price leadership ban for ING and ING Direct, the applicant submits that the Commission:

(a) infringed the principle of sound administration as a result of not having carefully and impartially examined all relevant aspects of the individual case and that it moreover violated the duty to provide adequate reasoning for the decision;

(b) infringed the principle of proportionality by making the approval of the aid measure conditional upon price leadership bans which are not adequate, necessary or proportionate;

(c) infringed Article 107(3)(b) TFEU and misapplied the principles and guidelines set out in the Restructuring Communication.

On the basis of its third plea, relating to disproportionate restructuring requirements, the applicant contends that the decision is vitiated by:

(a) an error of assessment, since the Commission wrongly calculated the absolute and relative aid amount and violated principle of proportionality and sound administration by requiring excessive restructuring without having carefully and impartially examined all the relevant facts provided to it; and

(b) an error of assessment and inadequate reasoning by deviating from the Restructuring Communication when assessing the required restructuring.

____________