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2012-3 E.C.R. 1 (2012)

handle is hein.intyb/rrjucfis0146 and id is 1 raw text is: VRw Reports of Cases Cases T-29/10 and T-33/10 Kingdom of the Netherlands and ING Groep NV V European Commission (State aid - Financial sector - Aid designed to remedy a serious disturbance in the economy of a Member State - Capital injection with repayment or share conversion options conferred on the aid recipient - Amendment to the repayment terms during the administrative procedure - Decision declaring the aid compatible with the common market - Concept of State aid - Advantage - Private investor test - Necessary and proportionate relationship between the amount of aid and the extent of measures intended to ensure compatibility of the aid) Summary of the Judgment 1. State aid - Concept - Assessment according to the private investor test (Art. 87(1) EC) 2. State aid - Concept - Legal nature - Interpretation on the basis of objective factors - Judicial review - Scope (Art. 87(1) EC) 3. Union law - Interpretation - Acts of the institutions - Statement of reasons - To be taken into consideration 1. In order to determine an 'advantage' within the meaning of Article 87(1) EC in the case of a capital injection, it must be assessed whether, in similar circumstances, a private investor of a dimension comparable to that of a public authority could have been prevailed upon to make capital contributions of the same size, having regard in particular to the information available and foreseeable developments at the date of those contributions. In order to examine whether or not the State has adopted the conduct of a prudent investor operating in a market economy, it is necessary to place oneself in the context of the period during which the financial support measures were taken and to refrain from any assessment based on a later situation. Such principles apply on the assumption that, having decided to subscribe to capital issued by an undertaking subject to certain repayment terms, the State agrees to amend those terms. In such circumstances, State aid may have been granted both on the making of the capital contribution and on the amendment to the repayment terms. As regards the Commission's analysis of the economic rationality of the behaviour of the State, the Commission cannot evade its obligation to assess the economic rationality of the amendment to the repayment terms in the light of the private investor principle solely on the ground that the capital injection subject to repayment already itself constitutes State aid. It is only after such an assessment, ECLJ:EU:T:2012:981 1

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