"To be, or not to be (state aid)" : that is the question the court of justice had to answer regarding the funding provided by deposit guarantee schemes

Abstract

Case C-425/19 P, Judgment of the Court (Grand Chamber) of 2 March 2021 — European Commission v Italian Republic, Banca Popolare di Bari Società Cooperativa per Azioni, Fondo interbancario di tutela dei depositi, Banca d’Italia, EU:C:2021:154. In the present case, the intervention by an Italian deposit protection scheme in favour of bank Tercas was ex post classified by the European Commission as illegal state aid. The divergence between the Italian authorities and the European Commission, regarding the meaning and scope of Article 107(1) TFEU, started in 2015 an intense litigation and resulted in a landmark decision by the Court of Justice in March 2021. The ground-breaking answer given by the Court of Justice about the support measures adopted in the Tercas case, confirmed the possibility of using deposit guarantee scheme funds for adopting alternative measures in insolvency proceedings, without it being necessarily classified as ‘aid granted by a Member State or through State resources’. The line of reasoning of the Court represents a change in the EU case-law in state aid, as it was concluded that the funding provided to Tercas by the Italian deposit protection scheme did not constitute state aid. In future cases, it will be more difficult to demonstrate that a measure can be imputable to the State when the entity granting the aid is neither a State body nor a public undertaking but a private law entity.