Action brought on 28 January 2010 - Netherlands v Commission

(Case T-29/10)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: C. Wissels and Y. de Vries, Agents)

Defendant: European Commission

Form of order sought

annul in part the Commission Decision of 18 November 2009 in Case No C 10/2009 (ex. N 138/2009) - Netherlands/aid for ING Groep N.V.;

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In the contested Decision, the Commission found that certain measures taken by the Netherlands State in regard to ING Groep N.V. constitute State aid within the meaning of Article 107(1) TFEU, and it declared that aid to be compatible with the common market, subject to certain commitments. According to the Decision, the modification of the repayment terms in respect of EUR 5 billion of the capital injection represents additional aid.

The application is directed against the first paragraph of Article 2 of the Decision, which is based on, inter alia, the Commission's finding that the modification of the repayment terms in respect of EUR 5 billion of the capital injection involves State aid.

First, the applicant submits that the Decision is contrary to Article 107 TFEU in so far as the Commission found in the Decision that the modification of the repayment terms concerning the holding in the core capital of ING constituted EUR 2 billion of additional State aid in favour of ING. In the applicant's view, the Commission erred, for the following reasons, in classifying the modification of the repayment terms as State aid:

In so far as there is any question of State aid, this consists, according to the Decision, in the full shareholding in the core capital of ING; a modification of the terms under which that aid can be repaid cannot, in addition to that shareholding, constitute State aid.

The modification of the repayment terms ought to have been included by the Commission in its appraisal of the shareholding in the core capital, and should not have been appraised separately.

In the event that the Commission was in fact entitled to appraise the modification of the repayment terms itself in the light of the rules on State aid, it committed a number of errors in that regard.

In its appraisal, the Commission wrongly failed to take account of the fact that one of the purposes of the modification of the repayment terms was to bring those terms further into line with market-compliant repayment terms.

Second, the applicant submits that the Decision is at variance with the principle of the duty of care in that the Commission failed to collect the necessary information concerning the relevant facts.

Third, the applicant takes the view that the Decision infringes the principle that reasons must be given, inasmuch as the Commission failed to adduce conclusive reasons for its view that the modification of the repayment terms constituted additional aid.

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