On 6 June 2012, the European Commission has extended the authorization given to France, Belgium and Luxembourg to bring their State guaranty to Dexia Bank SA and DLC. Further, the Commission agreed to raise the ceiling of the guaranty, joint but non several, of EUR 15 billion which brings the ceiling allowed to EUR 55 billion. But the permission is only until September 30. This might coincide with the time where the Commission will take a position on the plan of "orderly resolution" of this systemic bank. It justifies its flexibility itself in its exemption from the prohibition of State aids, by the fact that it is a systemic bank and that a resolution plan will be submitted soon, but it raises in advance competition problems.This justifies all the more draft texts on the mechanisms which must be specific to the systemic failing financial institutions.
The complexity of bank regulation is based chiefly on the fact that it affects, at the same time to many disciplines. Through Dexia case, we can observe that competition law is concerned, through the prohibition of State aids (became more than today a legal control of the intervention of the State in the economy, beautifully appointed "dynamic management "), banking law, bankruptcy law, and the law of the regulation itself in that the banks are systemic operators.
Dexia case is particularly interesting in that Politics is even more present than this Bank intended to play a role in the social link, including country planning, support to local communities, etc. That is why, when Dexia Bank had to face very serious difficulties, the European Commission authorized, as for many other banking establishments, that the State provides assistance in a temporary manner. In this case, it’s question of France, Belgium and Luxembourg.
The understanding of the Commission is particularly supported since, by its decision June 6, 2012, not only, it extends its authorization in time but it accepted the increase of the guaranty on the refinancing of Dexia SA and DCL, the ceiling of this being increased by EUR 10 billion. The maximum ceiling of guaranty approved by the Commission thus reaches EUR 55 billion in a joint and non-several manner. But this permission has effect until September 30, 2012, which is very short.
This is the moment where the Commission takes a decision to the banking resolution plan which will be presented to it, and whose early projects didn’t convinced. The Commission expressly correlated both, indicating that the guaranty and the increase of the ceiling are intended to enable the Bank to finalize an orderly plan of resolution of Dexia, systemic bank, and preserve the financial stability of the concerned Member States.
It is clear that that everything is concentrated: individual exemption, handling by the Commission in time and in the amounts of authorized guaranty, timeline of the "orderly resolution" plan. We can observe that it operates whereas there is no text of European Union yet on the resolution of the systemic failing financial institutions. It knows that all the works on banking regulation, focusing on systemic risk, incorporate now mechanisms of resolutions of failing institutions.
By the Dexia case, it seems that we have the case of application before having the specific text. This shows that the articulation of general texts, here competition law, law of State aids and its specific exemptions, as well as the commitments proposed by the parties concerned, may amount to a specific legal abstract framework.
Anyway, the European Commission does not forget that it is above all competition authority. Thus, academic work and cases on the relationship between competition law and the bankruptcy law are abundant when it complicates the analysis by introducing the systemic nature of the failed agent, is perhaps reached the limits of the European Commission.
Indeed, it has indicated already that it increased its investigation, because the accumulation of State aids for the benefit of a bank in a context of crisis could pose serious difficulties under the common competition law. Back then the idea of the need for a specific text to specific institutions, text on which other services of the Commission are working. Under all circumstances, Dexia is a laboratory case.