The General Court of the European Union annulled the European Commission's decision of December 2015 according to which support measures for one of its members by the Fondo Interbancario di Tutela dei Depositi (FITD) - a consortium of banks governed by private law acting as a mutual benefit body - constituted State aid under the Treaty on the Functioning of the EU, in a judgment delivered on Tuesday, 19 March (joined cases T-98/16, T-196/16, T-198/16).
In 2013, the Italian bank Banca Popolare di Bari (BPB) expressed an interest in the subscription of additional capital in another Italian bank Banca Tercas, which had been placed under special administration in 2012 as a result of irregularities identified by Banca d'Italia. Among the conditions it imposed for this transaction was an intervention by FITD.
In 2014, the FITD decided to cover Tercas' negative equity and to grant it certain guarantees as part of a voluntary and preventive action. These measures were approved by Banca d'Italia, but were challenged by the European Commission after an in-depth investigation (see EUROPE 11264/6). According to the Commission, the measures in question constituted State aid from Italy to Tercas.
Referral by the Italian State (T-98/16), BPB (T-196/16) and FITD (T-198/16), the General Court annuls the Commission's decision.
To qualify as State aid, the aid must meet two separate cumulative conditions: it must be imputable to the State and it must be granted through State resources (Article 107).
However, according to the Court, the Commission did not have sufficient evidence to conclude that the decision of the FITD, a private entity acting as a mutual benefit body, was adopted under the actual influence or control of the public authorities.
The Court points out that the FITD, which has the authority to reimburse depositors up to a maximum of €100,000 per depositor when a consortium member bank is placed under compulsory liquidation, is not doing this, it does not act in accordance with a public mandate. It notes that the governing bodies of the Italian interbank fund are composed of representatives of the consortium's member banks.
Moreover, the fact that the Banca d'Italia authorised FITD's intervention in favour of Tercas does not constitute an indication that the measure in question is imputable to the Italian State, in the Court’s view. According to it, the intervention of the Italian banking supervisor in the negotiations between FITD, BPB and the extraordinary administrator of Tercas took the form of a legitimate and ordinary dialogue.
Moreover, the Court concludes that the Commission had not established that the funds granted to Tercas under the FITD by way of support measures were controlled by the Italian public authorities. It also notes that the disputed support measures were in the interest of the members of the FITD since it was less costly than the implementation of the statutory guarantee in favour of Tercas’ depositors in the event that it was placed under compulsory liquidation.
On Thursday 21 March, the Chairman of the European Parliament's Committee on Economic and Monetary Affairs, Roberto Gualtieri (S&D, Italy), welcomed the Court's judgment annulling a decision that had caused "controversy” in Italy. The Commission stated that it was bound by the Court's interpretation, but it must be noted that the Court is not of the same opinion, he observed.
For the new Chair of the ECB’s Supervisory Board, Andrea Enria, this ruling "opens up new ways of managing a bank crisis” that is not the subject of a resolution.
The judgment of the General Court can be viewed here: http://bit.ly/2Tnce5F (Original version in French by Mathieu Bion)