Judgments nº T-161/18 of Tribunal General de la Unión Europea, February 24, 2021

• Resolution Date: February 24, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-161/18

(Action for annulment - State aid - Aid for the precautionary restructuring of Banca Monte dei Paschi di Siena - Preliminary examination stage - Decision declaring the aid compatible with the internal market - Plea of inadmissibility - Status as an interested party - Interest in bringing proceedings - Locus standi - Admissibility)

In Case T-161/18,

Anthony Braesch, residing in Luxembourg (Luxembourg),

Trinity Investments DAC, established in Dublin (Ireland),

Bybrook Capital Master Fund LP, established in Grand Cayman (Cayman Islands),

Bybrook Capital Hazelton Master Fund LP, established in Grand Cayman,

Bybrook Capital Badminton Fund LP, established in Grand Cayman,

represented by M. Siragusa, A. Champsaur, G. Faella and L. Prosperetti, lawyers,

applicants,

v

European Commission, represented by K. Blanck and A. Bouchagiar, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision C(2017) 4690 final of 4 July 2017 on State Aid SA.47677 (2017/N) - Italy - New aid and amended restructuring plan of Banca Monte dei Paschi di Siena,

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of A.M. Collins, President, V. Kreuschitz, Z. Csehi, G. De Baere (Rapporteur) and G. Steinfatt, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 9 July 2020,

gives the following

Judgment

Background to the dispute

1 The first-named applicant, Mr Anthony Braesch, is a representative of the holders of ‘Floating Rate Equity-Linked Subordinated Hybrid-FRESH’ 2008 bonds (‘FRESH bonds’). The remaining applicants, Trinity Investments DAC, Bybrook Capital Master Fund LP, Bybrook Capital Hazelton Master Fund LP and Bybrook Capital Badminton Fund LP, are holders of such bonds.

2 In April 2008, Banca Monte dei Paschi di Siena (‘BMPS’) carried out a capital increase of EUR 950 million reserved to J.P. Morgan Securities Ltd (‘JPM’), which subscribed to BMPS shares (‘the FRESH shares’). At the same time, on 16 April 2008, JPM concluded with BMPS a usufruct agreement, under which JPM retains bare ownership of the shares while BMPS is entitled to usufruct, and a company swap agreement (‘the FRESH contracts’). JPM obtained the necessary funds to subscribe to the FRESH shares from Bank of New-York Mellon (Luxembourg), replaced by Mitsubishi UFJ Investor Services & Banking (Luxembourg) SA (‘MUFJ’), which issued the FRESH bonds on 16 April 2008, under Luxembourg law, for an amount of EUR 1 billion. JPM entered into a swap agreement, governed by Luxembourg law, with MUFJ, and MUFJ entered into a fiduciary contract, also governed by Luxembourg law, with the FRESH bondholders. Under those various contracts, described by the applicants as ‘the FRESH instruments’, the fees received by JPM from BMPS under the FRESH contracts are passed on to MUFJ and then to the FRESH bondholders in the form of coupons.

3 By decision of 27 November 2013, the European Commission approved restructuring aid granted by the Italian Republic to the Italian bank BMPS on the basis of a restructuring plan and certain commitments. In June 2015, BMPS repaid the aid in its entirety.

4 On 29 July 2016, the European Banking Authority (EBA) published the results of the 2016 Europe-wide stress test, which revealed that BMPS had a capital shortfall in the adverse scenario.

5 On 23 December 2016, the Italian authorities approved decreto-legge n. 237 - Disposizioni urgenti per la tutela del risparmio nel settore creditizio (Decree-Law No 237 - Urgent provisions for the protection of savings in the credit sector) (GURI No 299, of 23 December 2016), which was amended and converted into a law by the legge di conversione (Conversion Law) of 17 February 2017 (GURI No 43, of 21 February 2017) (‘Decree-Law 237/2016’), setting out the legal framework for liquidity aid and precautionary recapitalisations.

6 By decision of 29 December 2016, following a statement on 23 December 2016 by the European Central Bank (ECB) that BMPS was solvent, the Commission temporarily approved EUR 15 billion of individual liquidity aid to BMPS, on the basis of the commitments offered by the Italian authorities. The Italian authorities committed to presenting a restructuring plan within two months of the granting of the guarantees, unless the liquidity aid was repaid within that period.

7 On 30 December 2016, following an unsuccessful attempt by BMPS to raise new private capital, it requested extraordinary public financial support in the form of a precautionary recapitalisation under Decree-Law 237/2016.

8 On 28 June 2017, the Italian authorities notified the Commission of aid for the recapitalisation of BMPS in the sum of EUR 5.4 billion, accompanied by a new restructuring plan and new commitments.

9 On the same day, the ECB sent the Commission a letter indicating that BMPS was solvent as at that date.

10 In Decision C(2017) 4690 final of 4 July 2017 on State Aid SA.47677 (2017/N) - Italy - New aid and amended restructuring plan of Banca Monte dei Paschi di Siena (‘the contested decision’), which was adopted at the conclusion of the preliminary examination stage, the Commission assessed two aid measures. The first of these (‘measure 1’) consisted of liquidity aid in the sum of EUR 15 billion, in the form of State guarantees on senior liabilities as referred to in paragraph 6 above. The second measure (‘measure 2’) consisted of precautionary recapitalisation of BMPS in the sum of EUR 5.4 billion, as referred to in paragraph 8 above.

11 After finding that measures 1 and 2 constituted State aid, the Commission stated that the legal basis on which their compatibility was to be assessed was Article 107(3)(b) TFEU, concerning aid intended to remedy a serious disturbance in the economy of a Member State. It determined that measures 1 and 2 were restructuring aid to BMPS and examined their compatibility on the basis of the restructuring plan, with regard to the six global financial crisis communications - in particular the Commission Communication on the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (OJ 2009 C 195, p. 9), the Communication from the Commission on the application, from 1 January 2012, of State aid rules to support measures in favour of banks in the context of the financial crisis (OJ 2011 C 356, p. 7) and the Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘Banking Communication’) (OJ 2013 C 216, p. 1).

12 As regards the compatibility of the aid measures in the light of the crisis communications, first, the Commission found that the restructuring plan was apt to restore the long-term viability of BMPS. Secondly, it found that burden sharing by holders of existing shares and subordinated debt was adequate, limiting the restructuring costs and amount of aid to a minimum in line with the requirements of the banking communication, and concluded that the restructuring plan contained sufficient burden-sharing measures. Thirdly, it found that the restructuring plan contained sufficient safeguards to limit undue distortions of competition. It also observed that proper monitoring of the implementation of the restructuring plan had been ensured. Accordingly, it concluded that the aid measures were proportionate to remedy the consequences of the serious disturbance in the Italian economy.

13 The Commission went on to consider whether the aid measures complied with the provisions of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190). It concluded that the conditions under which the aid measures (measure 1 and measure 2) had been granted were in line with the exemption provided for in Article 32(4)(d) of Directive 2014/59.

14 In the operative part of the contested decision, the Commission concluded, first, that measures 1 and 2 constituted State aid within the meaning of Article 107(1) TFEU, and, secondly, that those measures fulfilled the requirements of Article 107(3)(b) TFEU and were compatible with the internal market for reasons of financial stability.

Procedure and...