ANNOUNCED AS TEMPORARYNo
On 25 May 2009, Germany notified to the Commission its intention to amend the Finanzmarktstabilisierungsfondsgesetz (Financial Market Stabilization Fund Act - hereinafter "FMStFG") of 17 October 2008, in order to introduce asset relief for structured securities into its rescue package for financial institutions.
The purpose of the FMStFG is to support financial institutions in order to strengthen the stability of the German financial market. The FMStFG allows for three types of approved aid measures: recapitalisation of financial institutions, risk assumption and guaranteeing of liabilities.
The notified amendments to the FMStFG introduce a mechanism for asset relief to the German rescue package for banks and financial holding companies. Asset relief is achieved through the possibility for institutions to transfer structured securities to a special purpose vehicle (hereinafter "SPV") established for each beneficiary while receiving bonds guaranteed by the Fund in exchange.
Germany acknowledged that the notified introduction of asset relief to the rescue package for financial institutions constitutes State aid. However, Germany considered the aid scheme to be compatible with the common market inasmuch as it helps to 'remedy a serious disturbance in the economy of a Member State' within the meaning of Article 87(3)(b) of the EC Treaty.
The Commission agreed with Germany that asset relief for financial institutions affected by the crisis constitutes aid to those institutions within the meaning of Article 87(1) of the EC Treaty and gave the following assessment:
" Asset relief will enable the beneficiary to avoid potential write-downs and provisioning and will free capital held due to regulatory requirements. As this results in an economic advantage for the beneficiaries and strengthens their position vis-ŕ-vis their competitors in Germany and in other Member States, these measures have the potential to distort competition and to affect trade between Member States. The advantage is selective since it benefits only certain beneficiaries and it is provided through State resources." (par. 36 of the letter from the EC to Germany - Brussels, 31.07.2009 C (2009) 6134 final).
Article 87(3)(b) of the EC Treaty enables the Commission to declare aid compatible with the Common Market if it is "to remedy a serious disturbance in the economy of a Member State." This aid has to be applied restrictively and must tackle a disturbance in the entire economy of the Member State according to the interpretation of the Article 87(3)(b) by the Court of First Instance.
The Commission referred to its Communication on the financial crisis and concludes that the Measure complies with the conditions laid therein. Therefore, despite the measure constituting State aid pursuant to the Article 87(1) EC, it is compatible with the Common Market according to the Article 87(3)(b) EC Treaty. The Commission raises no objections against the measure at issue and authorizes it as emergency intervention in the face of the current financial crisis. (par. 38-69 of the letter).
A state measure in the GTA database is assessed solely in terms of the extent to which its implementation affects the extent of discrimination against foreign commercial interests. On this metric, the state aid proposed here is discriminatory.
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