(1)

On 30 June 2009, Denmark injected DKK 1,9 billion as Tier 1 hybrid capital into FIH Erhvervsbank A/S including its subsidiaries (‘FIH’) under the Danish Act on State-Funded Capital Injections (2).

(2)

On 6 March 2012 Denmark notified a package of measures in favour of FIH. By decision of 29 June 2012 (‘the Rescue and Opening Decision’) (3) the Commission approved those measures (4) on a temporary basis finding them compatible with the internal market.

(3)

In the same decision the Commission initiated the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘the Treaty’) because of concerns with regard to the appropriateness of those measures, the limitation of the aid to the minimum that is necessary and the bank’s own contribution, in particular in view of the potentially low remuneration of the impaired asset measures granted in favour of FIH.

(4)

On 2 July 2012 FIH paid back the capital of DKK 1,9 billion it had received in 2009 under the Danish Act on State-Funded Capital Injections (5).

(5)

In line with the Rescue and Opening Decision Denmark submitted a restructuring plan on 4 January 2013 (6), which it subsequently modified. On 24 June 2013 Denmark submitted the final update of that plan (‘the restructuring plan’).

(6)

On 3 February 2014 Denmark submitted a term sheet setting out the terms for the restructuring of FIH, which Denmark has committed to implement (the ‘commitments’).

(7)

The Danish authorities provided additional information during the period between 30 June 2012 and 3 February 2014.

(8)

On 11 March 2014, the Commission adopted a decision (7), by which it found the measures in favour of FIH to constitute State aid which was compatible with the internal market under Article 107(3)(b) of the Treaty in light of the restructuring plan and the commitments made (‘the 2014 decision’).

(9)

On 24 May 2014, FIH and its parent FIH Holding A/S (‘FIH Holding’) lodged an application to annul the 2014 decision. As a result of their action, by judgment of 15 September 2016 (8), the General Court of the European Union annulled the 2014 decision. On appeal, the General Court’s judgment was set aside by the judgment of the Court of Justice of 6 March 2018 (9) and the case was referred back to the General Court. On 19 September 2019, the General Court of the European Union gave its judgment (10) in which it found that, when the Commission calculated the amount of capital relief resulting from the transfer of assets to the FSC, it had used an incorrect figure. Even if this incorrect figure had been previously used by FIH and the Danish financial supervisory authority, it was subsequently rectified from DKK 375 million to DKK 275 million (11). As a result, the General Court annulled the 2014 decision. Consequently, the investigation opened with the Rescue and Opening Decision needed to be resumed to take into account the outcome of the court procedure in line with Article 266 of the Treaty, and the Commission needs to adopt a new decision closing the investigation and removing the abovementioned irregularity.

(10)

As part of the resumed formal investigation, additional information was provided by the Danish authorities on 13 January 2020. In that letter, the Danish authorities also confirmed that while all commitments submitted by them on 3 February 2014 (see recital 6) had either been implemented or were no longer relevant, the Danish authorities would not reverse the implemented commitments. Based on that new submission from the Danish authorities, the Commission is able to close the formal investigation by means of this Decision.

(11)

For reasons of urgency, Denmark accepts that this Decision be adopted exceptionally in the English language (12).

(12)

FIH is a limited liability company which was, at the time of the 2014 decision, regulated by the Danish banking legislation and supervised by the Danish Financial Supervisory Authority (‘FSA’). It was founded in 1958 and has its headquarters in Copenhagen, Denmark. It is wholly owned by FIH Holding.

(13)

The FIH Group consists of FIH Holding and FIH Erhvervsbank, together with the latter’s wholly-owned subsidiaries. Those subsidiaries, as of 31 December 2012, were FIH Partners A/S (covering the business segment corporate finance), FIH Kapital Bank A/S (13), FIH Realkredit A/S, which was a mortgage credit institution (14), and FIH Leasing og Finans A/S. FIH’s activities consisted of three segments: banking (15), markets (16) and corporate finance (17).

(14)

As of 31 December 2012, FIH Holding was owned by the Danish Labour Market Supplementary Pension Fund which held 48,8 % of the shares of FIH Holding, by PF I A/S (18) which held 48,8 % of the shares, and by the Executive Board and executive employees who held 2,3 % of the shares, with FIH Holding itself holding 0,1 % of the shares.

(15)

At the end of 2011, the FIH Group had a balance sheet of DKK 84,16 billion (EUR 11,28 billion) and its total capital ratio (19) was 17,8 % which increased to 21,2 % by 31 December 2012. On 31 December 2012 FIH had a balance sheet of DKK 60,76 billion (EUR 8,1 billion) (20) and risk weighted assets of DKK 29,84 billion (EUR 3,98 billion).

(16)

FIH was a focused niche bank specialising in medium-term financing as well as risk management advisory and corporate finance services for Danish enterprises with a balance sheet exceeding DKK 10 million (EUR 1,34 million). Originally FIH’s banking activities covered three segments: Property Finance, Acquisition Finance and Corporate Banking.

(17)

FIH constituted Denmark’s sixth-largest bank by working capital (21) at the time of the Rescue and Opening Decision, servicing more than 2 000 banking customers at group level. The market share of FIH in bank and mortgage lending at that time was estimated at 1,7 %. It had a market share in SME/corporate lending of 2,5 %. In June 2012 FIH had a market share of 2,1 % of the total market for lending to corporates (both banks and mortgage banks).

(18)

The FIH Group had performed weakly in the years preceding the adoption of the 2014 decision. On 25 June 2009, it applied to the Danish Recapitalisation Scheme (22) and on 30 June 2009 it received a State-funded Tier 1 hybrid capital injection of DKK 1,9 billion in the form of a loan note. The coupon of that note amounted to 11,46 % per annum. Over the entire year 2009 the FIH Group reported a pre-tax loss of DKK 148 million (EUR 19,9 million).

(19)

Although the FIH Group had a pre-tax profit of DKK 316 million (EUR 42,5 million) in 2010, that profit was mainly driven by non-recurring positive market value adjustments, including unrealised gains on an indirect holding. In 2011 the FIH Group reported a pre-tax loss of DKK 1,27 billion (EUR 170 million) due to impairment charges on loans and negative market value adjustments. On 31 December 2012 it had a pre-tax loss of DKK 47 million (EUR 6,4 million). For the end of 2013 a pre-tax profit of DKK 95 million (EUR 12,8 million) has been budgeted. In 2013 the third quarter net profit for continuing operations before taxation was DKK 23,2 million (EUR 3,09 million). For total operations after taxation FIH recorded a loss of DKK 20,1 million (EUR 2,71 million) in 2012.

(20)

In 2009 and in 2010 Moody’s downgraded FIH’s rating from A2 to Baa3. In 2010 the owners of FIH (the Icelandic Financial Supervisory Authority and the Central Bank of Iceland) (23) agreed to sell their shares in FIH to the current owners. That new ownership was expected to bring about significant improvement to the credit rating of FIH, as the prior ownership by Kaupthing Bank hf had been one of the main concerns for Moody’s regarding FIH. However, mainly due to circumstances specific to FIH such as the refinancing of government-guaranteed bond issues, credit quality and exposure to the property sector, in 2011 Moody’s downgraded FIH further to B1 with negative outlook.

(21)

The rating downgrade in 2011 was in line with the market prices at that time for FIH bonds that did not benefit from a government guarantee: FIH’s 2-4 year debt was priced at spreads of 600-700 basis points over the equivalent maturity EURIBOR-linked swap.

(22)

In 2011 and 2012 FIH anticipated difficulties with regard to debt that would mature in 2012 and 2013. The resulting funding challenge was mainly caused by a decline in FIH’s credit rating and changed capital market conditions (24). In July 2009 FIH had already obtained liquidity assistance in the form of a government guarantee totalling DKK 50 billion (EUR 6,31 billion), which it had wholly utilised. It had also obtained a Tier 1 hybrid capital injection of DKK 1,9 billion (EUR 255 million) from the State under the Danish Guarantee Scheme. As of 31 December 2011 FIH held government-guaranteed bonds amounting to DKK 41,7 billion (EUR 5,56 billion), which constituted 49,94 % of the balance sheet of the bank.

(23)

With those State-guaranteed bonds maturing in 2012 and 2013, FIH was about to face a funding problem. The FSA estimated, in the second half of 2011, that there was a relatively high risk that FIH would be unable to comply with liquidity requirements in the following 12-18 months as a result of its expected inability to obtain funding from the open markets.

(24)

In order to address those emerging liquidity problems FIH was to carry out a substantial reduction of its balance sheet.

(25)

To solve the liquidity problems that FIH was then expected to face, in July 2012 Denmark proposed a complex impaired asset measure to transfer problematic property finance assets of FIH to a new subsidiary of FIH Holding (‘Newco’). At the same time, Denmark committed to provide funding and recapitalisation to Newco whenever needed.

(26)

The ‘measures’ (25) consisted of two phases of a share purchase agreement (26) and several side agreements under which assets of the FIH Group amounting to approximately DKK 17,1 billion (EUR 2,3 billion or 28 % of total assets of FIH at the time of the transfer) were transferred to Newco. Newco (27) was then purchased by the Danish Financial Stability Company (‘FSC’) (28), after which it would be wound-up in an orderly manner under the approved Danish winding-up scheme (29), in accordance with the scheme’s principles (30). The winding-up process was expected to last until 31 December 2016 but it could take until 31 December 2019 to complete. The FSC was able to finance almost the entire capital amount of DKK 2 billion for the purchase of Newco through an early redemption of the DKK 1,9 billion Tier 1 hybrid capital loan note which had been granted to FIH (31) by the State in 2009. The FSA approved the repayment by FIH of the State capital injection on 2 July 2012, based on a solvency and liquidity analysis that included the asset transfer measure (32).

(27)

In phase 1 there was a demerger of the assets and liabilities of FIH Erhvervsbank and FIH Kapital Bank A/S into Newco, the new subsidiary owned by FIH Holding. The assets transferred to Newco were real estate loans and securities amounting to DKK 15,2 billion (EUR 2,1 billion) and derivatives of DKK 1,6 billion (EUR 215 million). The initial liabilities of Newco consisted of two loans (Loan One and Loan Two) with a remaining equity part of DKK 2 billion.

(28)

Loan One was a loss-absorbing loan from FIH to Newco of DKK 1,65 billion (EUR 221 million). That loan would only be repaid by Newco to FIH if the winding-up process of the assets transferred to Newco generated proceeds in excess of the FSC’s purchase price of DKK 2 billion (EUR 268 million). As for remuneration for Loan One, Newco was to pay the five-year Danish Government Bond rate plus 1,15 % (33).

(29)

Loan Two was a loan from FIH Erhvervsbank to Newco of approximately DKK 13,45 billion (EUR 1,8 billion). As remuneration for Loan Two, Newco was to pay FIH the DKK CIBOR three-month rate plus 1,12 %. The maturity of Loan Two matched the maturity of loans which had previously been issued by FIH under the State guarantee. Loan Two and those matching loans thus fully matured in mid-2013 and it was contractually agreed that, as Newco repaid loans to FIH, FIH would repay outstanding loans that were guaranteed by the government. As the notional amount of Loan Two has been repaid by Newco to FIH, the FSC has provided funding to Newco in the amounts that were necessary to refinance Newco’s assets.

(30)

In phase 2, which was executed immediately after the completion of phase 1, the FSC bought all the shares in Newco from FIH Holding. The price initially paid (34) by the FSC to FIH Holding for Newco was the equity capital (net worth) as of 1 January 2012, which amounted to DKK 2 billion.

(31)

FIH Holding could then use the cash proceeds as immediate liquidity to pay back some of the government-guaranteed debt. At the same time, the asset transfer led to a replacement of real estate loans by loans to a government-sponsored entity, thus reducing FIH’s risk weighted assets by about DKK 10 billion (35).

(32)

In addition to the share purchase agreement, the measures include several side agreements between FIH Holding and the FSC:

(33)

At Newco’s resolution, the FSC was contractually entitled to recover at least its initial DKK 2 billion investment net of costs incurred by FIH and the FSC in the transaction. If the winding-up process generates proceeds of less than the purchase price of DKK 2 billion, FIH would cover the difference by Loan One, the loss-absorbing loan, and by the guarantee respectively. If the proceeds of the winding-up process exceeded DKK 1,5 billion, an additional 25 % of any excess amount would be paid to the FSC in addition to the DKK 2 billion minimal amount it was to receive. Any additional excess amount would be paid to FIH Holding. In practice, if the final proceeds were below DKK 1,5 billion, the FSC would obtain DKK 2 billion. If, for example, the final proceeds were DKK 1,9 billion, the FSC would receive DKK 2,1 billion.

(34)

In the Rescue and Opening Decision, the Commission raised doubts with regard to the proportionality of the measures, their limitation to the minimum necessary, whether there was an adequate own contribution by the FIH Group and whether there was a sufficient limitation to the distortion of competition.

(35)

Those concerns originated from the significant intricacy of the measures which appeared to be unnecessarily complicated to fix the future liquidity challenges of FIH. In particular, it was unclear to what extent the various side agreements and the interconnectedness in the remuneration formula were necessary, appropriate and well-targeted for the purposes of the 2008 Banking Communication (37).

(36)

Further, at the time of the Rescue and Opening Decision FIH intended to aggressively enter the internet retail deposit market by pursuing a ‘price leadership’ role. The entry into that market was a core component of FIH’s strategy to address its funding problems.

(37)

Moreover, the suggested remuneration to be paid to the FSC for the transferred assets and liabilities appeared very unlikely to be in line with the remuneration level referred to in point 21 of the Impaired Asset Communication (38) according to which banks should bear the losses associated with impaired assets to the maximum extent. Point 21 requires a correct remuneration of the State for any asset relief measures to ensure equivalent shareholder responsibility and burden-sharing irrespective of the specific model chosen.

(38)

On 24 June 2013 Denmark presented a final updated version of the restructuring plan for the FIH Group for the period 2012 to 2016. The plan included a best case and a worst case scenario (39) with the aim of demonstrating FIH’s ability to restore its long-term viability, sufficient burden-sharing and adequate measures to address distortions of competition.

(39)

The restructuring plan was based on assumptions in respect of the evolution of gross domestic product growth as projected by the International Monetary Fund, and the evolution of short- and mid-term interest rates changes as based on the Danish Ministry of Business and Growth’s estimate of developments in short-term interest rates until 2014. The plan assumed a moderate recovery of gross domestic product growth in 2013 and thereafter.

(40)

In the best case scenario (40), FIH was expected to continuously improve its results until 2016. The pre-tax return on normalised equity (41) on group level was budgeted to be 10,3 % on 31 December 2013 and 11,2 % (42) on 31 December 2016.

(41)

The worst case scenario (43) was based on less favourable market assumptions, including, among others, worsening market conditions for funding to banks both in terms of volume and price; lower demand for loans and advisory services; unfavourable movement in foreign exchange rates, interest rates, etc.; and impairment charges remaining above historical levels through the business cycle. According to FIH’s estimations those developments together would lead to a pre-tax return on normalised equity on group level of 0,9 % on 31 December 2013 and 2,0 % on 31 December 2016.

(42)

In both cases there was a relatively low level of return on equity, which was mainly due to the dividend ban and the ban on coupon payments anticipated in Denmark’s commitments made in the context of the State aid investigation. As a result of those commitments, the FIH Group would retain profits until the end of the restructuring period and the settlement of the measures.

(43)

Originally FIH’s banking activities covered three segments: Property Finance, Acquisition Finance and Corporate Banking. The business segment Property Finance had been discontinued as part of FIH’s restructuring, as loans within Property Finance were sold to the FSC in 2012. In addition, the loans in its Acquisition Finance business unit would be phased out. Therefore, Corporate Banking would be the only business unit to continue operating. As of March 2013 the number of full-time employees was down to 214 from 356.

(44)

According to the restructuring plan the balance sheet was to decrease to DKK 27,68 billion (EUR 3,74 billion) by 31 December 2013. On 31 December 2016 FIH projected a total capital ratio of 19,6 %.

(45)

The statutory liquidity ratio (44) which on 31 December 2012 was 214 %, was expected to be 239,7 % on 31 December 2013.

(46)

Over the restructuring period the total capital ratio was expected to amount to 19,6 % and the statutory liquidity ratio to 175 % and thus significantly exceed the regulatory requirements.

(47)

According to the best case scenario (45), the pre-tax return on so-called normalised equity (46) of the restructuring plan was budgeted to be 9 % on 31 December 2013 and 10,1 % on 31 December 2016. In the worst case scenario, those figures were 0,9 % and 4,7 % respectively (47).

(48)

The situation of the bank had significantly improved since mid-2011 when the FSA anticipated that FIH would face major liquidity needs that it would be unable to meet. FIH had repaid the remaining outstanding government-guaranteed bonds and the refinancing challenge was thus solved by 13 June 2013. In addition, FIH redeemed the government’s Tier 1 hybrid capital on 2 July 2013.

(49)

As at the date of adoption of the 2014 decision, FIH had no problems in meeting either its regulatory solvency or its liquidity requirements.

(50)

In order to address the concerns raised by the Commission in the context of the Rescue and Opening Decision, Denmark and the FIH Group took a series of actions.

(51)

FIH made a “one-off” payment to the FSC of DKK 310,25 million (EUR 39,12 million) with a value date of 4 December 2013 (48).

(52)

FIH paid, with value date 18 December 2013, an amount of DKK 61,7 million to Newco as partial repayment of fees received under the administration agreement for 2012, and retroactively reduced the management fees for administration and hedging for 2013 charged to Newco to 0,05 % of the outstanding loan portfolio.

(53)

FIH reduced its total assets from DKK 109,3 billion (EUR 14,67 billion) on 31 December 2010 to DKK 60,8 billion (EUR 8,16 billion) by 31 December 2012, corresponding to a decrease of 44 %.

(54)

FIH further reduced its loan book from DKK 58,0 billion (EUR 7,79 billion) on 31 December 2010 to DKK 16,2 billion (EUR 2,17 billion) by 31 December 2012, namely by DKK 41,8 billion in total corresponding to a decrease of 72 %.

(55)

In addition, FIH significantly reduced the risk lines in Markets (49).

(56)

FIH reduced the number of its full-time employees from 356 at 31 December 2010 to 214 by 31 March 2013, which corresponds to a reduction of 41 %.

(57)

Furthermore, FIH reduced its geographical presence as two of its four regional offices were closed.

(58)

In view of the concerns raised by the Commission in the Rescue and Opening Decision and to ensure compatibility with the Impaired Assets Communication, in particular with regard to the proper remuneration of the asset transfer measures, Denmark provided additional commitments which are set out in recitals 59 to 65. In its letter submitted on 13 January 2020, Denmark confirmed that all of those commitments had either been implemented or were no longer relevant; Denmark committed, moreover, not to reverse the implemented commitments.

(59)

FIH would make an annual payment of DKK 2,1 million (EUR 0,3 million) to the FSC from 30 September 2014 until final settlement of the transaction with an ACT/ACT (50) pro rata temporis payment for the last period at settlement date (this could be up to 31 December 2019). Any amounts already paid by FIH to the FSC in excess of that amount in line with the 2014 decision, and in excess of the total amounts payable by FIH under this Decision, would be reimbursed to FIH without interest.

(60)

FIH would reduce the management fees charged to the FSC or make a lump sum payment to the FSC, with a present value of the reduction or of the payment equivalent to DKK 143,2 million (EUR 19,09 million).

(61)

In order to attain that outcome, FIH paid an amount of DKK 61,7 million to Newco as a partial repayment of fees received by FIH from Newco under the administration agreement for 2012. FIH also reduced the management fees for administration and hedging charged to Newco to 0,05 % on the outstanding loan portfolio for the year 2013.

(62)

In addition FIH would reduce the management fees for administration and hedging charged to Newco to 0,05 % per annum of the outstanding loan portfolio, from 1 January 2014.

(63)

FIH would pay an additional annual fee to the FSC of DKK 47,2 million (EUR 6,29 million) in the event that the FSA changed its regulatory stance as regards capital requirements at holding level so that FIH’s regulatory lending capacity would remain unrestricted by the capital position of FIH Holding.

(64)

The commitments also provided for a withdrawal of FIH from certain business lines (property finance, private equity, private wealth management) as well as for a set of behavioural restrictions including a price leadership ban for deposits, a ban on commercially aggressive practices and a ban on acquisitions, as well as for the liquidation of FIH Realkredit A/S which was the mortgage bank of the FIH Group. FIH Realkredit A/S was liquidated in 2013.

(65)

A full list of commitments (51), as last updated by the Danish authorities in their letter submitted on 13 January 2020, is set out in the Annex.

(66)

When Denmark notified the measures to the Commission, its initial position (52) was that the transfer of equity to Newco involved State aid, but that any such aid would be compatible with the internal market pursuant to Article 107(3)(b) of the Treaty.

(67)

In the same submission Denmark claimed that the FIH Group had not received any State aid as the FSC would pay the market price for Newco. While not quantitatively substantiating that claim, whether by making reference to relevant market data or explaining the reasoning behind transaction costs, Denmark emphasised that:

(68)

Denmark concluded that FIH would not receive an advantage. If the Commission were to take a different view on that matter, Denmark submitted that any aid to FIH could be declared compatible with the internal market as the arrangement amounted to a restructuring of FIH in compliance with the Restructuring Communication (53).

(69)

Denmark followed up its initial submission with a presentation on 20 March 2012 (54) in which it pointed out that FIH had not requested the measures and that at the time FIH had concluded those measures it had had deleveraging alternatives that supported the claim that the transaction was negotiated on market terms. It also claimed that an initial write down on the book value of the assets of DKK 1,4 billion and a further risk adjustment discount of DKK 1,3 billion corresponded to a market price. Moreover, any earn-out losses would be corrected through the variable share purchase agreement formula, so that an effective ex post adjustment mechanism would ensure pricing in line with market conditions. Denmark did not elaborate on the amount of the proposed discount and risk adjustment or the reasons why they would lead to a market price.

(70)

In subsequent correspondence with the Commission (55), Denmark asserted that that maximum loss to which the FSC was exposed was DKK 1,05 billion, namely the difference between, on the one hand, the loss-absorbing loan of DKK 1,65 billion and on the other, the sum of the book value write down and the FSC’s preliminary risk adjustment amount which totals DKK 2,7 billion. It also claimed that the State enjoyed a considerable reduction of its risk related to FIH State-guaranteed loans and a repayment by FIH of a previous capital injection of DKK 1,9 billion.

(71)

By a memorandum submitted on 23 April 2012 (56), Denmark informed the Commission that it would ‘not for the moment supply the Commission with further arguments regarding the use of the Market Economy Investor Principle’. At the same time, it provided some explanations as regards the valuation methodologies used by the FSC’s legal advisor.

(72)

Subsequently, on 16 May 2012, Denmark asserted that FIH Holding and the FSC had negotiated the transaction terms based on normal commercial considerations regarding the sharing of risk and profit and asserted that the transaction had been made on market terms. That statement was certified by the FSC’s accountancy firm, KPMG (57).

(73)

On 7 June 2012, Denmark submitted a KPMG report assessing the measures by considering all contributing elements at the same time. KPMG saw ‘no reason to conclude that the terms of the agreement would not correspond to the risks for the FSC’, citing the high level of collateral, the potential use of covered bonds, the loss-absorbing loan and a 25 % earn-out for the FSC.

(74)

On 11 September 2012, in its reply to the opening of proceedings, Denmark did not directly contest the Commission’s view that the measures constituted State aid, but it referred to its line of argument of 29 March 2012 (58), arguing that any transfer above market value would be compensated by the loss-absorbing loan and the price-adjustment guarantee granted by FIH Holding. Moreover, Denmark cited margin increases on renewals and a higher than anticipated redemption rate as examples to support that view, but without explicitly reiterating that the market economy operator principle (‘MEOP’) (59) should apply.

(75)

Instead, Denmark argued that the measures were compatible, giving arguments to show that they were appropriate, that the aid was limited to the minimum necessary and that distortion of competition was limited (60).

(76)

The Danish authorities also recalled their position in the note of 23 April 2012 that the measures were the result of negotiations between FIH and the FSC (61) and argued that some of the guidance in the Banking Communication (62) had necessitated a degree of complexity in the measures (63), disputing that complexity might render them inappropriate.

(77)

When the Commission informed Denmark about the expert assessment as regards the market value and real economic value of the measures, Denmark contested the results and submitted a number of questions and clarifications between 7 February and 11 September 2013.

(78)

Denmark commented that the aid was limited to the minimum necessary (64), because it assumed the transfer value would not exceed the real economic value, but added that only a final valuation by the Commission could establish that fact.

(79)

Aside from the valuation aspects, Denmark noted the positive effects of the transfer on the regulatory position of FIH, in line with the goal of restoration of long-term viability contained in the restructuring plan.

(80)

Denmark also argued that FIH’s deposit acquisition strategy is independent of the State aid measure and does not convey the intention of a ‘price leadership’ role, but is an essential part of its funding strategy. Nevertheless, to alleviate the Commission’s concerns, Denmark has provided a commitment that FIH will adhere to a price leadership ban.

(81)

According to Article 107(1) of the Treaty, State aid is any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, insofar as it affects trade between Member States.

(82)

The Commission considers that the measures in favour of FIH described in recitals 25 to 33 should be considered together as a package. The measures are part of a single transaction as their elements are interdependent (chronologically and in terms of structure) and have been designed altogether in order to address FIH’s funding problem.

(83)

The measures described in recitals 25 to 33 involve State resources as they were directly financed by the FSC, which is a State-owned company (through the Danish Ministry of Business Affairs) responsible for providing different kinds of measures to Danish banks in the context of the financial crisis (65). First, the FSC provided DKK 2 billion in cash for the Newco share purchase agreement. Second, the FSC committed to fund Newco’s assets while FIH repaid its State-guaranteed loans. That commitment could exceed DKK 13 billion. Third, the FSC decided to forgo an amount of interest in order to pay for a guarantee from FIH Holding.

(84)

The measures outlined in recitals 25 to 33 provided an advantage as they resulted in an asset relief for FIH, thus improving the group’s capital ratios, while at the same time enabling the bank to better address its funding problems.

(85)

The Danish authorities argued that the measures respected the MEOP and therefore did not constitute State aid to the FIH Group.

(86)

The Commission will therefore assess whether the measures in favour of the FIH Group fulfil the MEOP test. That test examines whether a market operator would have taken part in a given operation on the same terms and conditions as the public investor at the time when the decision to make public resources available was taken. There is no State aid when public funds are granted in circumstances and on terms which correspond to market conditions.

(87)

In the particular case of the FIH Group the Commission considers that it is relevant to examine (i) whether initially there had been a private investor willing to finance the measures on the same terms and conditions as the Member State, (ii) if so, what was the return on investment it demanded in comparison with the return for the State, and (iii) in the absence of private interest, what the expected return (66) and the distribution of the potential returns from the measures for the State would be, in comparison to those returns a market investor would expect if such an investor was to undertake the measures under normal market economy conditions. If the State accepts those conditions or better, the measures can be considered to be carried out on market terms. In particular, it is important to check whether the transaction in its entirety generates positive cash flow, because no private operator, aiming at maximising of its profit, would enter a loss-making operation.

(88)

The clearest evidence that a transaction is in line with the MEOP is to demonstrate that the terms of the deal would not only be acceptable to a hypothetical market economy operator, but that in fact there is such an operator participating in the same investment on the same terms as the State. The presence of other investors provides a benchmark for the Commission to make its assessment of the applicability of the MEOP.

(89)

At the time Denmark granted the measures, there was no market participant prepared to grant similar measures to FIH as those which were granted by entities under the control of the State. In particular, neither the consortium of owners nor any third party expressed any intention to invest in FIH. The Commission has no grounds to conclude that under those circumstances a market economy operator would be willing to participate in the measures. The absence of private interest is an indication of the financial difficulties and weak position of the bank.

(90)

In the absence of an operator investing on the same terms as the State, a measure can still be free of aid, if in similar circumstances a private operator would have granted the same funding, asking a return at least as high as the return the State received. That assessment should, in principle, be based on a business plan taking into account available information and foreseeable developments at the time when the public funding was granted and it should not rely on any analysis based on a later situation.

(91)

Furthermore, one of the situations in which it is most difficult to apply the MEOP is where a company is already a beneficiary of State aid. In this case, FIH had already received a recapitalisation on 30 June 2009, which it repaid on 2 July 2012. The hybrid instruments used for the recapitalisation were remunerated at 11,45 %. FIH also participated in the Danish guarantee scheme. Whilst those facts do not exclude the application of the MEOP in this case per se, they are indicative of the difficulties faced by FIH and would affect the willingness of private investors to invest in the measures. The previous aid already distorts the economic circumstances, creating a perception of continued State support. In its evaluation, the Commission has taken the replacement of such advantages by new ones into consideration.

(92)

The FSA was of the view that FIH was in a precarious position as there was significant risk that FIH would not be able to meet its statutory requirements as regards liquidity when its government-guaranteed debt expired. That situation could, accordingly, have led to a withdrawal of FIH’s banking license (67). The position of the FSA therefore supports the Commission’s assessment that a market operator would have been unlikely to invest in FIH. While it can be argued that the FSA’s report was not in the public domain, a market operator would have had access to the maturity profile of FIH’s government-guaranteed debt and thus have been able to derive the same conclusion.

(93)

In the absence of a private investor, to further check the applicability of the MEOP the Commission has to assess whether the overall return of the measures in favour of FIH is equal to or higher than the expected return that a hypothetical private investor would demand in order to make that investment. The expected return of the measures depends on the future stream of revenue from cash flows, which has to be discounted to the present day to derive its net present value using an appropriate rate of discount.

(94)

Relying on expert advice, the Commission estimated the market value of Newco’s assets and modelled the expected return for the FSC for entire distribution of liquidation values of Newco’s equity. In so doing, it has taken into account all elements of the share purchase agreement, such as the net liquidation value, revenues and costs incurred by the FSC and FIH Group and the purchase price adjustment, which included the loss-absorbing loan. The use of a distribution model is necessary to calculate the net present value of both the benefits stemming from a 25 % equity upside participation and the negative effects from the combination of large asset losses in Newco and a default of FIH Holding if such a scenario were to materialise (68).

(95)

The Graph shows, for different liquidation values of Newco’s assets (from DKK 5,1 billion to DKK 28,3 billion), the net present value of the share purchase agreement. Each of the scenarios occurs with a probability indicated by the dotted line against the right-hand scale (0,1 % to 7,5 %). In the most likely scenarios, the return is slightly negative.

(96)

Furthermore, the Graph shows the overall probability-weighted average net present value of the share purchase agreement operation was also negative. The expert calculation shows it amounted to DKK 726 million. As a result, the share purchase agreement generated a loss instead of a profit. A market economy operator would have required an equity remuneration of at least 10 % (69) per annum on a similar DKK 2 billion investment, which would have generated about DKK 1,33 billion over the seven-year existence period of Newco. The Commission therefore concludes that no market economy operator would have been willing to invest on terms and conditions equivalent to those of the share purchase agreement. As a result the measures are not in line with the MEOP (70).

(97)

It should be noted that in the calculation set out in recitals 94 to 96, the Commission took into account correspondence from Denmark dated 7 February and 11 March 2013, as well as subsequent correspondence (71), in which Denmark submitted previously undisclosed information such as specific interpretations of the components of the variable purchase price, the reference date of the submitted loan exposure tapes that were earmarked for transfer from FIH to Newco, the evolution of the credit quality of the portfolio between December 2011 and September 2012 and a more granular analysis of the ‘uncommitted credit lines’ in the portfolio.

(98)

Furthermore, the quantifications contained in Denmark’s arguments (72) do not withstand scrutiny. The ex ante write-down amounts and risk provisions were not substantiated by an independent valuation report (73). Moreover, when considering the possibility of the FIH Group not being able to honour ex post guarantees, there is no reason why the losses of Newco could not exceed DKK 2,7 billion, in which case the FSC (and hence the Danish government) would be contractually required to recapitalise Newco prior to its final liquidation. The Commission therefore concludes that the claim that any investment losses would be limited to DKK 1,05 billion is not substantiated.

(99)

The fact that the terms of the measures were negotiated between the FSC and FIH Holding does not necessarily mean that the measures were executed on market terms. If Denmark intended to grant a substantial amount of additional aid to a bank facing grave liquidity difficulties, that fact alone would not exclude negotiations between the authorities and that bank on specific points of the transaction. Because of the bilateral aspect of the negotiation which took place, it lacked features such as those of an open non-discriminatory tender procedure or of a comparison to similar market transactions. Therefore, the conformity of the measures with market conditions does not follow automatically from the fact that negotiations occurred.

(100)

As regards the KPMG report of 7 June 2012, the Commission agrees that due to the complexity of the measures, their terms and conditions should be assessed in their entirety because there are no individual provisions that can be allocated to the remuneration of each individual element. However, the analysis contained in that KMPG report overlooked the possibility of more extreme downside scenarios under which FIH Holding might not be able to honour its commitments. Moreover, the analysis failed to address a remuneration on the DKK 2,0 billion of capital invested. As outlined in recital 98, there cannot be conformity with market behaviour given that there is no annual remuneration on the capital and given a mere 25 % participation of any equity upside over a seven-year investment period, both on a standalone basis and as a parameter in the entire remuneration model (74).

(101)

In that context, the Commission notes that under a previous Tier 1 hybrid recapitalisation (75) FIH had to pay an annual coupon of 11,46 % per annum. Furthermore, in the beginning of March 2012 FIH’s senior debt was quoted on the market with an implied yield exceeding 10 %. Therefore, the Commission’s reasoning that a remuneration for capital should be at least 10 % is justified. A market operator would probably require a remuneration in excess of that level, in view of the particular risks related to the concentration and the inferior quality (76) of the real estate portfolio of Newco in addition to the junior credit ranking of an equity investment. Therefore, a remuneration of 6,5 %, as put forward by Denmark (77) is clearly insufficient. It should also be noted that the transaction generates a negative expected return.

(102)

The Commission concludes that the measures in favour of FIH are not in line with the MEOP. This assessment, and in particular the fact that the Commission does not need to take account of the financial risks to which the FSC was exposed because of the 2009 aid measures, was confirmed by the Court of Justice’s judgment of 6 March 2018 (78).

(103)

The use of the measures only concerned the FIH Group and Newco. The measures were therefore selective.

(104)

The measures helped FIH strengthen its capital and liquidity position compared to that of its competitors who could not benefit from similar measures. The measure therefore enabled FIH to improve its market position. The measure could therefore lead to a distortion of competition.

(105)

Given the integration of the banking market at European level, the advantage provided to FIH was felt by competitors both in Denmark (where banks from other Member States operate) and in other Member States. The measures must therefore be regarded as potentially affecting trade between Member States.

(106)

The total aid amount of the measures (79) is calculated to be approximately DKK 2,25 billion (approximately EUR 300 million). To quantify the amount of aid, the Commission has considered:

(107)

As a mitigating factor, the Commission considered the early cancellation of government guarantees amounting to DKK 0,28 billion should be deducted from the total aid amount.

(108)

As indicated in recitals 82 and 100, the Commission took a holistic approach in valuing all interest and other cash flows, fees and guarantees given, taking into consideration:

(109)

In line with the Impaired Asset Communication, the Commission has relied on external experts for valuation advice (82).

(110)

Article 107(3)(b) of the Treaty provides that State aid may be considered to be compatible with the internal market where it is intended to ‘remedy a serious disturbance in the economy of a Member State’. Given the present circumstances and also the circumstances in the financial markets at the time of the Rescue and Opening Decision, the Commission considers that the measures may be examined under that provision.

(111)

The Commission accepts that the financial crisis has created exceptional circumstances in which the bankruptcy of one bank may undermine trust in the financial system at large, both at national and international level. That may be the case even for a small bank which is not in immediate difficulty but under tightened supervision by the financial regulator, such as FIH. The two-four year debt of that bank was priced at spreads of 600-700 basis points over EURIBOR at the time of the Rescue and Opening Decision. That pricing level is a clear indication of imminent distress. In such cases, early intervention to avoid the institution concerned becoming unstable can be necessary to avoid threats to financial stability. It is particularly so in the case of a small economy such as Denmark where counterparts may tend not to distinguish between individual banks, thus extending the lack of confidence generated by the failure of one bank to the whole sector. Therefore, the legal basis for the compatibility assessment of all the measures covered by this Decision is Article 107(3)(b) of the Treaty.

(112)

As regards specifically the compatibility of the transfer of assets to the FSC, the Commission will assess the measures with regard to the Impaired Assets Communication.

(113)

The Commission will then assess the compatibility of the restructuring measures with regard to the Restructuring Communication.

(114)

The Impaired Assets Communication lays down the principles regarding the valuation and transfer of impaired assets and compatibility of measures with the Treaty. It has to be assessed whether the aid has been limited to the minimum and there is sufficient own contribution of the bank and its shareholders.

(115)

According to point 21 of the Impaired Assets Communication banks should bear the losses associated with impaired assets to the maximum extent. Point 21 requires a correct remuneration of the State for the asset relief measure, whatever its form, so as to ensure equivalent shareholder responsibility and burden-sharing irrespective of the exact model chosen.

(116)

In their original form, the measures provided for remuneration equal to the funding cost of the Danish government plus a mere 100 basis points for the liquidity. No remuneration for the equity investment was foreseen, apart from a partial (25 %) upside in case the net resolution yields an excess through the price adjustment mechanism. Moreover, in a negative scenario where the asset portfolio of Newco would deteriorate significantly, compensation to the FSC would be provided by FIH Holding which, under those circumstances, would probably not have the capacity to honour its obligations. It seemed therefore unlikely, as stated in recitals 66 to 73 of the Rescue and Opening Decision, that the remuneration and own contribution would be sufficient to make the aid compatible with the internal market according to the guidance in the Impaired Assets Communication.

(117)

In line with point 39 of the Impaired Assets Communication, the Commission therefore thoroughly analysed the market value of the measures. Aided by an external expert, it estimated a probabilistic distribution of outcomes for the Newco asset portfolio and calculated the effect on the likely terminal liquidation asset values through the share purchase agreement.

(118)

In its assessment, the Commission found advantages through foregone equity remuneration and potential losses linked to the credit quality of FIH Holding, excess interests for the loss-absorbing loan, excess spreads on funding to Newco by FIH and excess fees for administration and derivative hedging. The Commission also found mitigating factors such as the early cancellation of government guarantees. In total, the measures contained a State aid element of about DKK 2,25 billion.

(119)

Taking into consideration points 40 and 41 of the Impaired Assets Communication, the difference between transfer value and real economic value was assessed by performing the same calculation as for the market value assessment with two adaptations. First, the distribution of outcomes was based on real economic values of the asset portfolio, instead of the market values. Second, the required remuneration for equity was based on the effective net capital relief of the measures.

(120)

In the 2014 decision, following a statement by the FSA, the Commission assessed the gross capital relief effect of the measures, at the level of FIH Holding, to be DKK 375 million (83). This amount could be broken down into:

(121)

The earnings risk corresponded to the risk of FIH having to attract additional capital to cover the losses anticipated for the coming year. However, in this case, FIH had erroneously attributed a positive development into the calculation of the earnings risk as it assumed anticipated savings of interest due to an early redemption of the DKK 1,9 billion of hybrid capital (84). Such savings could not have created a risk of additional capital being necessary, and thus no capital relief arose for FIH under the earnings risk position. This miscalculation was reiterated in a statement by the FSA, but was later rectified in subsequent correspondence. However, since in the 2014 decision the Commission relied on the initial calculation, it fixed the capital relief effect at DKK 375 million and not DKK 275 million. For this reason, the General Court, by its judgment of 19 September 2019, annulled the 2014 decision. It follows that the correct amount of the gross capital relief of the aid measures should be set at DKK 275 million. This capital relief should be duly remunerated for the measure to be compatible with the Impaired Asset Communication. The Commission estimates that the remuneration required for the capital relief to be compatible with the Impaired Asset Communication should amount to at least 10 % per year (85).

(122)

Moreover, the Commission also found that the transfer value of the assets was DKK 254 million above their real economic value (86), which needed to be remunerated and clawed back.

(123)

In addition, DKK 143,2 million in excess fees needed to be recovered.

(124)

To bring the measures in line with the Impaired Assets Communication:

(125)

Denmark has ensured that FIH paid those amounts (90) in addition to honouring all agreements under the closing documents of the measures (91).

(126)

Denmark commits that FIH will pay no dividends until the final settlement of the Newco accounts under the share purchase agreement, so as to mitigate the credit risk faced by FIH Holding for the FSC.

(127)

In conclusion, the measures in their entirety are proportionate, limited to the minimum and provide sufficient own contribution by FIH. Moreover, due to the payment made on 4 December 2013 (92) to the FSC as well as the additional commitments as regards remuneration and fees, the measures provide for an appropriate remuneration in accordance with the Impaired Assets Communication.

(128)

According to the Restructuring Communication, in order to be compatible with the internal market under Article 107(3)(b) of the Treaty, the restructuring of a financial institution in the context of the current financial crisis must lead to a restoration of the viability of the bank, or to the orderly winding-up thereof, ensure that the aid is limited to the minimum necessary and include sufficient own contribution by the beneficiary (burden-sharing), and contain sufficient measures limiting the distortion of competition.

(129)

According to the Restructuring Communication a Member State needs to provide a comprehensive restructuring plan which demonstrates how the long-term viability of the beneficiary will be restored without State aid within a reasonable period of time and within a maximum of five years. Long-term viability is achieved when a bank is able to compete in the marketplace for capital on its own merits in compliance with the relevant regulatory requirements. For a bank to do so, it must be able to cover all its costs and provide an appropriate return on equity, taking into account the risk profile of the bank. The return to viability should mainly derive from internal measures and be based on a credible restructuring plan.

(130)

The restructuring plan submitted by Denmark in respect of FIH covering the period up to 31 December 2016 showed a return to viability at the end of that restructuring period. The bank was expected to remain profitable and improve its yearly results in particular during the period 2013 – 2016, with an adequate return on equity on newly generated business. In a worst case scenario, the bank would still generate profits, with net profit improving from DKK 51 million (EUR 6,8 million) in 2013 to DKK 122 million (EUR 16,27 million) in 2016.

(131)

According to the restructuring plan, by 31 December 2016 the total capital ratio of FIH would be as high as 19,6 % and the statutory liquidity ratio then was expected to be 160 %. All those ratios would exceed significantly the regulatory minimum requirements. The group would therefore appear well capitalised and endowed with a comfortable liquidity position.

(132)

Following the measures, in particular the transfer of loans, FIH was a position not only to redeem the government-guaranteed bonds in 2013 in due time but also to repay on 2 July 2013 the hybrid capital it had received from the government.

(133)

The measures improved the liquidity profile of FIH which was able to obtain a statutory liquidity ratio of 214 % as of 31 December 2012 and was expected to obtain a ratio of 239,7 % as of 31 December 2013 (94) thus exceeding the regulatory liquidity requirements significantly.

(134)

In particular, the funding gap which previously threatened FIH was closed through a hive-off of assets, with the help of the DKK 13 billion funding facility provided by the FSC to Newco. In addition, the FSC committed to recapitalise Newco over the lifetime of the measures, if necessary (95). As a result, any immediate recapitalisation issues for FIH were pre-empted.

(135)

In summary, with both profitability and liquidity assured, and a sufficient capital base FIH seemed to be in a good position to attain long-term viability on a standalone basis.

(136)

Although in the worst case scenario the pre-tax return on normalised equity was budgeted to be only 0,9 % at 31 December 2013 and 2,0 % (96) at 31 December 2016, the best case projected a return on normalised equity of 10,3 % and 11,2 % for 2013 and 2016 respectively.

(137)

The Commission does not usually use the concept of ‘normalised equity’ because it regularly leads to a higher return on equity than if the calculations were based on the actual equity. In this case, however, Denmark has given a commitment that FIH Holding and FIH would retain accumulated earnings to a high level, so as to better guarantee an appropriate payment to the FSC. In particular if Newco realised significantly lower proceeds than planned by FIH, FIH (via the loss-absorbing loan) and FIH Holding (via the guarantee given to the FSC) would bear costs to ensure the remuneration of the FIH at a level commensurate with the State aid rules. The accumulation of retained earnings nevertheless increased equity to a relatively high level (DKK 8,4 billion in the best case, DKK 7,3 billion in the worst case) which reduced the return on equity ratio. FIH was not in a position to counteract that process unless it produced losses (which is neither foreseen nor desirable). The concept of ‘normalised equity’ is therefore preferable in the current case to allow the Commission to assess properly the profitability of the bank, setting aside the results of the accumulation of retained earnings.

(138)

Further, FIH would exit the relatively risky business area of acquisition finance which led to a risk reduction of its business activities and put its business model on a more solid foundation. Moreover, with a total capital ratio of 20,8 % (97) at the end of the restructuring period FIH seemed overcapitalised (98) in view of its business model and thus much less exposed to market risks which might jeopardise its existence as a going-concern than before.

(139)

The Commission therefore considers that the restructuring plan was apt to restore FIH’s long-term viability.

(140)

Denmark committed not to request of FIH to pay any dividends during the restructuring phase and to repay a previous State recapitalisation of DKK 1,9 billion. Further, FIH would not make any coupon payments to investors in hybrid instruments or any instrument for which financial institutions have discretion to pay coupons or to call, regardless of their regulatory classification, including subordinated debt instruments, if no legal obligation to make payments existed.

(141)

In addition, as concluded in recital 127, the remuneration of the impaired asset measures was set at an appropriate level.

(142)

The Commission therefore considers that the restructuring plan sufficiently addressed the burden-sharing requirement.

(143)

The restructuring plan provided for FIH to withdraw from certain business lines (property finance, private equity and private wealth management). In particular, DKK 15,4 billion of property finance assets (25 % of the 2012 balance sheet) were hived off to Newco.

(144)

The amended term sheet also provided for a price leadership ban for deposits if the market share of FIH exceeded 5 %. That commitment allowed FIH to further improve its funding position by raising deposits on the market while at the same time establishing a threshold preventing excessive practices. In addition, there would be a ban on commercial aggressive practices safeguarding competitors from excessive market behaviour. It should be noted that no market participant commented on FIH’s policy concerning deposit pricing after the Commission opened proceedings on that question.

(145)

Further, FIH would divest its investments in private equity funds and other equity investments and would no longer have a mortgage institute in its company structure after 31 December 2014. Thus, those business areas would also be left to competitors and the presence of FIH on the market reduced accordingly.

(146)

Moreover, FIH Realkredit (99) was liquidated in 2013 and all business activities in the business field Acquisition Finance were ceased.

(147)

In addition, FIH had already reduced its total assets from DKK 109,3 billion (EUR 14,67 billion) on 31 December 2010 to DKK 60,8 billion (EUR 8,16 billion) by 31 December 2012, corresponding to a decrease of 44 %.

(148)

Altogether, those commitments have led to a sufficient mitigation of distortion of competition because business opportunities which could potentially be profitable for FIH were abandoned and left to its competitors.

(149)

The Commission expressed doubts in its Rescue and Opening Decision as to whether the measures at stake were well-targeted as required by the 2008 Banking Communication (100). In particular at that stage, it was unclear whether investors would consider FIH as fully relieved from its worst assets, and whether they would be ready to provide funding under bearable conditions. FIH’s restructuring plan demonstrated that the bank had a sufficient capital buffer even under a stress scenario and that it was likely to remain viable under unfavourable macroeconomic developments.

(150)

In the Rescue and Opening Decision the Commission also raised doubts as to whether the measures were limited to the minimum and envisaged sufficient own contribution (101), in particular in view of the complexity of the measures.

(151)

Following a detailed assessment of the elements and their links the Commission considers that that the remuneration FIH would pay for the measures serves as a sufficient own contribution and is in line with the Impaired Assets Communication. The Commission welcomes the one-off payment to the FSC and the commitments made in that respect (102). The Commission notes further that the measures improved the liquidity profile of the bank which, under all scenarios, remained liquid and viable according to the restructuring plan.

(152)

In the Rescue and Opening Decision the Commission expressed further doubts in relation to whether the requirement that distortion of competition be limited had been met. However, Denmark subsequently committed that FIH would be subject to a coupon ban, a dividend ban, a price leadership ban (including for deposits) and a ban on commercial aggressive practices, and to divestment commitments.

(153)

Overall, the Commission notes that the restructuring plan presented by Denmark adequately addressed the issues of viability, burden-sharing and distortion of competition, and hence it was in line with the requirements of the Restructuring Communication and Impaired Assets Communication.

(154)

Based on the assessment above the Commission finds that the measures were well-targeted, limited to the minimum and provided for limited distortion of competition. Therefore the Commission’s doubts related to the compatibility of the measures, initially raised in the Rescue and Opening Decision, have been allayed.

(155)

Although Member States transposed Directive 2014/59/EU into national law, the Commission needs to assess whether the measure violates indissolubly linked provisions of Directive 2014/59/EU.

(156)

That obligation is in line with the jurisprudence of the Union Courts, which have consistently held (104)‘that those aspects of aid which contravene specific provisions of the Treaty other than [Articles 107 and 108 of the Treaty] may be so indissolubly linked to the object of the aid that it is impossible to evaluate them separately to that their effect on the compatibility or incompatibility of the aid viewed as a whole must therefore of necessity be determined in the light of the procedure prescribed in [Article 108]’ (105).

(157)

To assess whether a violation of a provision of Union law is indissolubly linked to the measure, it has to be established whether the State aid measure necessarily breaches a specific provision of Union law which is relevant for the compatibility analysis under paragraphs 2 and 3 of Article 107 of the Treaty.

(158)

This Decision refers to measures put in place by the Danish authorities before the adoption of Directive 2014/59/EU. Directive 2014/59/EU was indeed adopted on 15 May 2014 and the deadline for its transposition into the law of the Member States was 1 January 2015 (106), while the measures concerned by the case at hand were granted in 2012. As a consequence, Directive 2014/59/EU does not apply to the present case.

(159)

Based on the notification and in view of the commitments presented by Denmark (and which Denmark has upheld in its letter submitted on 13 January 2020) it is concluded that the notified measures constitute State aid and are compatible with the internal market. The appropriateness of the measures as well as the viability of the bank and own contributions together with the measures to mitigate distortion of competition appear sufficient. Consequently, the measures should be approved pursuant to Article 107(3)(b) of the Treaty and the opened proceedings should be closed,