The Netherlands and ING v European Commission

Case C-224/12P European Commission v The Netherlands and ING Groep EU:C:2014:213 On appeal from Cases T-29 and 33/10 The Netherlands and ING Groep v European Commission EU:T:2012:98

Barrister: Matthew O’Regan
Area of law: State aid
Summary: During the financial crisis, the Dutch financial group ING received a € 10 billion capital injection from the Dutch government. Together with a separate measure transferring a portfolio of illiquid US mortgage bonds, this constituted State aid and the Commission required ING to implement a substantial restructuring package. The repayment terms for the capital injection were subsequently revised; the Commission considered that this constituted further aid of around € 2 million and required additional restructuring measures. Matthew assisted ING in successfully challenging this finding in an appeal to the General Court that raised complex issues on the application of the ‘market economy investor’ principle to amendments to capital injections that themselves constitute aid and on the Commission’s ability to impose restructuring obligations when approving State aid measures. The General Court found that in agreeing to amend the repayment terms the Dutch government could have acted as a private investor holding the same securities would have done. As the Commission had not considered the possible application of the principle, the General Court annulled the finding that the revision was aid. The General Court also held that the Commission had unlawfully imposed the restructuring obligations and that they had not been offered voluntarily by ING and the Dutch government to obtain State aid approval. Matthew represented ING in successfully defending the Commission’s subsequent appeal to the EU Court of Justice.