ANNOUNCEMENT 12 Nov 2008In November 2008, the government of the Netherlands announced a change in private-sector financial support.
NUMBER OF INTERVENTIONS
European Commission website, the letter to the Member State is avaliable here < http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=3_N528_2008 >. Official Journal JOCE C/328/2008.
The Dutch government notified the European Commission on 22/10/2008 about its intention to implement acapital injection EUR 10 000 000 000 to ING Groep N.V.by means of special securities issued and fully subscribed by the Dutch State. The nominal value is EUR 0.24 per security and the issue price is EUR 10 per security.
ING Groep N.V. is a Netherlands-based global financial services company which provides banking, investments, life insurances and retirement services. This company operates in more than 50 countries in Europe, Latin America, North America, Asia and Australia. ING is one of the 20 most important global financial players which balance sheet totaled EUR 1 313 bln at the end of the financial year 2007.
The Government of Netherlands contends that the measure does not constitute aid. The government considers that the design of the measure (using ad hoc securities rather than ordinary shares) avoids dilution of existing shareholders and at the same time provides expectations of an adequate return to the Dutch State.
In contrast, the European Commission letter to the Netherlands (Brussels, 12.XI.2008, C(2008) 6936 final cor.) indicates that the Commission considers that the Measure at issue constitutes state aid to ING Groep N.V. pursuant to Article 87 (1) EC Treaty (par. 37 of the mentioned letter). "Given that ING is active in the financial sector, which is open to intense international competition any advantage from the state resources to INGwould have the potential to affect intra-Community trade and to distort competition" (par. 38) Without state intervention, ING could not have raised such an amount in such time (par. 50). Therefore, the Commission concludes that the measure constitutes State aid in the sense of Article 87(1) EC Treaty.
The Dutch authorities also invoke Article 87 (3)(b) should the Commission conclude that the measure constitutes state aid. 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 state 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. 70, 71, 73 of the letter).
A state measure in the GTA database is, however, 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.