EU Loses Court Ruling Over Order to Review ING Bailout Terms

The European Union’s competition watchdog lost its bid to overturn a ruling that forced it to re-examine conditions it imposed on ING Groep NV’s Dutch government rescue in the wake of the 2008 financial crisis.

The EU Court of Justice backed an earlier ruling that said the antitrust authority failed to examine whether the Dutch government acted as a private investor in ING’s bailout.

The commission was “required to take into account” the private investor test and in such a case was “under a duty” to ask the Netherlands to give it all the data needed to determine whether the conditions of the test are met, the Luxembourg-based tribunal said today.

A lower EU court in 2012 said the European Commission wrongly considered a revision of repayment terms as 2 billion euros ($2.7 billion) of additional aid to ING on top of 10 billion euros it received in 2008. The court struck down part of the EU’s decision.

The EU downplayed the importance of the ruling.

“The judgment has no impact on our existing case practice,” said Antoine Colombani, a spokesman for the EU regulator’s competition unit. The commission “had already taken a new decision on ING which complied with the market investor test required in the court’s judgment.”

ING said in November 2012 the outcome of today’s case won’t affect the revised restructuring agreement and that the commission continued with its appeal for legal reasons.

“What is decisive is whether the amendment to the repayment terms of the capital injection satisfies an economic rationality test, so that a private investor might also be in a position to accept such an amendment,” the top EU court said today.

The case is: C-224/12 P, Commission v. Netherlands and Others.

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