19 March 2019 (*1)

(State aid — Measures adopted by a consortium of banks governed by private law for the benefit of one of its members — Measures authorised by the Central Bank of the Member State — Decision declaring the aid incompatible with the internal market — Action for annulment — Definition of State aid — Whether imputable to the State — State resources)

In Joined Cases T‑98/16, T‑196/16 and T‑198/16,

Italian Republic, represented by G. Palmieri, acting as Agent, and by S. Fiorentino and P. Gentili, avvocati dello Stato,

applicant in Case T‑98/16,

Banca Popolare di Bari SCpA, formerly Tercas-Cassa di risparmio della provincia di Teramo SpA (Banca Tercas SpA), established in Teramo (Italy), represented by A. Santa Maria, M. Crisostomo, E. Gambaro and F. Mazzocchi, lawyers,

applicant in Case T‑196/16,

Fondo interbancario di tutela dei depositi, established in Rome (Italy), represented by M. Siragusa, G. Scassellati Sforzolini and G. Faella, lawyers,

applicant in Case T‑198/16,

supported by

Banca d’Italia, represented by M. Perassi, O. Capolino, M. Marcucci and M. Todino, lawyers,

intervener in Case T‑198/16,

European Commission, represented by P. Stancanelli, L. Flynn, A. Bouchagiar and D. Recchia, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)) (OJ 2016 L 203, p. 1),

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of S. Frimodt Nielsen, President, V. Kreuschitz, I.S. Forrester, N. Półtorak (Rapporteur) and E. Perillo, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 22 March 2018,

gives the following

Background to the dispute

The present actions were brought by the Italian Republic (Case T‑98/16), Banca Popolare di Bari SCpA (‘BPB’) (Case T‑196/16) and the consortium governed by Italian private law, Fondo interbancario di tutela dei depositi (‘the FITD’) (Case T‑198/16) against Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)) (OJ 2016 L 203, p. 1, ‘the contested decision’).

In the contested decision, the European Commission considered that the measures adopted by the FITD for the benefit of Banca Tercas (Cassa di risparmio della Provincia di Teramo SpA) (‘Tercas’), authorised by the central bank of the Italian Republic, Banca d’Italia (‘the Bank of Italy’), on 7 July 2014 (‘the measures’ or ‘the measures adopted by the FITD for the benefit of Tercas’), constituted unlawful and incompatible State aid which had to be recovered from its beneficiary by the Italian Republic.

3.3

Tercas is a private equity bank which is active principally in the Abruzzo region of Italy. At the end of 2010, Tercas acquired Banca Caripe SpA, a regional bank which also had a presence in that region.

4.4

BPB is the holding company of a private equity banking group which is active principally in the south of Italy.

5.5

The FITD is a consortium of banks governed by private law which was established on a voluntary basis in 1987. It is a mutual consortium which was established for the purpose of pursuing the common interests of its members.

The aim of the FITD is to guarantee its members’ deposits (see Article 1 of the statutes of the FITD in the version applicable to the facts of the case, ‘the statutes of the FITD’). In 1996, as a result of the transposition into Italian national law of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5), the FITD was recognised by the Bank of Italy as one of the deposit guarantee schemes that was authorised to operate in Italy pursuant to the rules laid down by that directive. Under Article 27 of its statutes, in the event of the compulsory liquidation of one of its members, the FITD is to intervene by repaying the deposits lodged by depositors with the FITD up to a maximum of EUR 100000 per depositor. Under Article 27(1) of the statutes, claims relating to funds acquired by the members of the consortium with an obligation to repay are eligible for repayment, in euros and foreign currencies, in the form of deposits or any other form, as well as bank cheques and any other equivalent debt instrument.

7.7

Since its creation, the FITD has had the power to intervene in favour of its members, not only by way of the deposit guarantee for depositors, which has become statutory (mandatory intervention), but also on a voluntary basis, in accordance with its statutes, if that intervention makes it possible to reduce the burden its members may have to bear as a result of the deposit guarantee (voluntary intervention).

Thus, under Article 28 of its statutes, where provision is made to lessen the burden, the FITD may, instead of making the repayment provided for under the deposit guarantee for depositors in the event of the compulsory liquidation of a member of the consortium, intervene in transactions involving the transfer of assets and liabilities relating to that member (alternative voluntary intervention). Similarly, under Article 29(1) of its statutes, irrespective of whether a compulsory liquidation procedure has been formally initiated, the FITD may decide to intervene by means of finance, guarantees, the acquisition of shares or in the form of other technical support for one of its members placed under special administration, where there are prospects of recovery and a lesser burden is to be expected compared with the burden that would be incurred by the intervention of the FITD in the event of the compulsory liquidation of that member (voluntary intervention by way of support or preventive intervention, as in the case of Tercas).

The FITD’s role, the measures that it may adopt, in particular the support measures for the benefit of its members, and, more specifically, the question as to whether the measures which are the subject matter of the contested decision may be classified as ‘aid granted by a Member State or through State resources’, within the meaning of Article 107(1) TFEU, are at the heart of the present cases.

10.10

The Bank of Italy is a public authority which performs the function of the central bank of the Italian Republic. It has its own legal personality which is separate from that of the Italian State. As a member of the European System of Central Banks (ESCB), the Bank of Italy must, under Article 127(5) TFEU, contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system.

11.11

Among other functions, decreto legislativo, n° 385, e successive modifiche e integrazioni, Testo unico delle leggi in materia bancaria e creditizia (Italian Banking Act) of 1 September 1993 (GURI No 230, 30 September 1993, Ordinary Supplement No 92), in the version in force at the material time (‘the Italian Banking Act’), assigns to the Bank of Italy the role of the supervisory authority of the banking sector and gives it the objectives of ensuring the sound and prudent management of supervised institutions, overall stability, the efficiency and competitiveness of the financial system and compliance with the provisions on credit.

12.12

In order to achieve those objectives, in particular that of ensuring the sound and prudent management of supervised institutions, the Bank of Italy has extensive supervisory powers, which include administrative monitoring, regulatory powers, inspection powers and numerous authorisation powers. Those powers allow the Bank of Italy to intervene in every key event in which a bank is involved, in a manner consistent with its commercial autonomy, and for the sole purpose of verifying whether its management is sound and prudent.

13.13

In the exercise of its rights and powers, the Bank of Italy has, inter alia, approved the statutes of the FITD, assists in FITD meetings as an observer with no voting rights and, in accordance with Article 96b(1)(d) of the Italian Banking Act, has approved the measures adopted by the FITD for the benefit of Tercas.

Context and the measures adopted by the FITD for the benefit of Tercas

14.14

On 30 April 2012, on a proposal by the Bank of Italy, which had identified irregularities within Tercas, the Italian Ministry of Economy and Finance decided to place Tercas under special administration.

15.15

The Bank of Italy subsequently appointed a special administrator to manage Tercas during the special administration (‘the special administrator’).

First attempt to intervene

In October 2013, after assessing various options, the special administrator started negotiations with BPB, which had expressed an interest in subscribing to a capital increase in Tercas, on condition that a due diligence inquiry into Tercas was first carried out and that the FITD covered in full that bank’s negative equity.

17.17

On 28 October 2013, following a request by the special administrator of Tercas on the basis of Article 29 of the statutes of the FITD, the Executive Committee of the FITD decided to support Tercas in an amount up to EUR 280 million. That decision was ratified by the FITD’s Board on 29 October 2013. On 4 November 2013, in accordance with Article 96b(1)(d) of the Italian Banking Act, the Bank of Italy approved that support measure.

18.18

Although it had been granted authorisation by the Bank of Italy, the FITD decided to suspend the planned measures in view of uncertainties regarding Tercas’ economic situation and its assets and liabilities and the tax treatment of those measures. On 18 March 2014, following the audit of Tercas’ assets, requested by BPB (see paragraph 16 above), a disagreement arose between the FITD’s and BPB’s experts. That disagreement was subsequently resolved following an arbitration procedure. In addition, the FITD and BPB agreed to share any costs resulting from the taxation of the measures in the event that the tax exemption envisaged was not applied.

Decision to intervene and authorisation by the Bank of Italy

Following the suspension of the measures on 18 March 2014 and in order to satisfy itself that the measures adopted for the benefit of Tercas were economically more advantageous than reimbursement of that bank’s depositors, the FITD instructed an auditing and advisory company. In the light of the conclusions presented by that company in a report dated 26 May 2014 and in view of the cost of the measures compared with the cost of compensation under the deposit guarantee scheme in the event of liquidation, on 30 May 2014, the Executive Committee and the Board of the FITD decided to take steps for the benefit of Tercas.

On 1 July 2014, the FITD sent the Bank of Italy a new authorisation request.

21.21

On 7 July 2014, the Bank of Italy authorised the measures to be adopted by the FITD for the benefit of Tercas. This provided for three measures (‘the individual measures at issue’), namely, first, a EUR 265 million contribution intended to cover Tercas’ negative equity; secondly, a guarantee of EUR 35 million intended to cover the credit risk associated with certain exposures of Tercas and, thirdly, a guarantee of EUR 30 million intended to cover the costs arising from the tax treatment of the first measure (see recital 38 and Article 1 of the contested decision).

Tercas’ position after the measures adopted by the FITD

22.22

The special administrator of Tercas, in agreement with the Bank of Italy, convened a general meeting in order for shareholders to be able to take a decision on covering the losses discovered during the special administration and a capital increase reserved for BPB.

23.23

The Tercas shareholders’ general meeting took place on 27 July 2014 and decided, first, to partially cover the losses, inter alia by reducing the capital to zero and cancelling all of the ordinary shares in circulation and, secondly, to increase the capital to EUR 230 million by issuing new ordinary shares to be offered to BPB. That capital increase took place on 27 July 2014.

24.24

On 1 October 2014, Tercas left special administration, and BPB appointed the new bodies of that bank.

25.25

In December 2014, BPB increased capital by EUR 500 million, comprising the issue of new shares and the issue of a tier 2 subordinated loan. The capital increase served to reinforce BPB’s capital ratios, which had been affected by the acquisition of Tercas.

26.26

In March 2015, BPB subscribed a new increase in Tercas’ capital in the amount of EUR 135.4 million in order to cope with additional losses recorded in the fourth quarter of 2014, to cover restructuring costs in 2015 and 2016, and to improve Tercas’ capital ratios. Those events are not connected to the support measures adopted by the FITD for the benefit of Tercas.

The administrative procedure and the contested decision

27.27

On 8 August and 10 October 2014, the Commission requested from the Italian authorities information regarding the measures adopted by the FITD for the benefit of Tercas. Those authorities replied to those requests for information on 16 September and 14 November 2014.