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The Commission needed to adopt this new decision in order to provide legal clarity following the partial annulment by the General Court of its original decision of November 2009. Since that time, the Dutch State and ING also notified to the Commission amendments to the plan. Today the Commission has opened an in-depth investigation concerning these changes. Both decisions provide a framework for taking forward the outstanding issues in this case with a view to adopting a final decision on the restructuring of ING. In parallel, the Commission has appealed the General Court's judgement before the Court of Justice of the European Union.
"The Commission has reacted today to the partial annulment by the court of its ING decision of 2009. After the judgement, a rapid decision declaring the crisis aid compatible was required in order to provide legal clarity. As I still consider the plan proportionate to the restructuring requirements, there was no need to change much of the original decision beyond the relatively minor issue on which the court criticised our reasoning. Since the original decision, the plan has revealed some implementation problems that must be assessed in an additional thorough analysis. I am confident that they can be settled together with the Dutch authorities", said Commission Vice-President in charge of competition policy, Joaquín Almunia.
On 2 March 2012, the General Court annulled the 2009 ING Restructuring Decision based on a lack of reasoning concerning the analysis of a small part of the aid granted. Today the Commission has appealed the judgement of the General Court to the EU Court of Justice. Notwithstanding the outcome of the appeal, the Commission in a decision taken today addressed the concerns expressed by General Court. Today's decision confirms the assessment of the Commission in its 2009 decision on the compatibility of the aid, subject to the restructuring plan submitted at the time, with the internal market.
In addition, the Dutch State and ING have more recently informed the Commission of a number of changes to the restructuring plan. The Commission considers that the complexity of the issues justifies an in-depth analysis. The procedural step taken by the Commission today to investigate the changes to the approved restructuring plan will allow for third parties to provide comments. This in-depth investigation covers three issues.
First, the Dutch State renotified the €10 billion capital injection by the Netherlands because ING did not pay an adequate remuneration to the State in 2010 and 2011. This renotification obligation is the result of the commitment of the Dutch State taken at the time of the ING Rescue Decision of 12 November 2008. If ING would not pay coupons for two consecutive years, the Dutch State was under an obligation to renotify the measure to the Commission. ING did not pay coupons to the State for three years despite declaring profits. The Commission will therefore assess the possibilities of still achieving sufficient remuneration for the State now that ING is in a position to pay such remuneration.
Second, the Dutch State and ING have informed the Commission of the fact that the divestment of Westland Utrecht Bank is not feasible in the current market circumstances. The divestment which has to be reassessed was meant to address competition concerns in the Dutch market. The Commission will therefore have to reassess how distortions of competition in the home market of ING can be addressed.
Finally, the Commission has also received a complaint in the context of the monitoring of the ING decision on the pricing policy of ING Direct in Italy. According to the complainant, ING would have used the State aid to expand its business to the detriment of non-aided competitors. The Commission needs to investigate the pricing behaviour of ING Direct and its sustainability in the absence of aid.
Commission appeals General Court ruling and takes two new decisions on the ING restructuring plan – FAQs