The resources granted in 2014 since Interbank Fund to Banca Popolare di Bari for the rescue of Tercas they do not represent State aid. This was established by the EU Court of Justice accepting the appeal presented by the same institute (supported by Bank of Italy) and by Italy against the rejection established by the EU Commission according to which "the use of the guarantee on deposits is state aid". According to the Luxembourg judges, Brussels "has not demonstrated that the funds granted to Tercas as support for the Fitd (where a representative of Bankitalia sat on the board) were controlled by the Italian public authorities". The Fitd, the judges write, acted autonomously at the time of the adoption of the intervention in favor of Tercas and the Commission has not demonstrated "the involvement of the Italian public authorities in the adoption of the measure in question".
The story dates back to 2013, when Popolare di Bari decided to subscribe to the capital increase of Banca Tercas - subjected the previous year to the extraordinary administration regime following some irregularities ascertained by the Bank of Italy - on condition that the operation enjoys the coverage of the Fitd, the interbank deposit protection fund which can intervene to the rescue of its members, both as a legal guarantee of deposits envisaged in the event of compulsory administrative liquidation (compulsory intervention), and on a voluntary basis, in the event that the intervention makes it possible to reduce the system burdens which may result from the guarantee of deposits imposed on its members.
In 2014, the interbank fund decided to accept the request of Popolare di Bari and to cover the capital deficit of Tercas, granting it guarantees. The operation also receives the green light from Bank of Italy.
However, the EU Commission decides to investigate the measures established to understand whether the Community rules on state aid have really been respected. One year later, on December 23, 2015, Brussels decides that the operation constitutes state aid which Italy had implemented in favor of Tercas. At that point, the people of Bari and the Italian Government presented the appeal which is the subject of today's sentence.
The EU Court of Justice therefore annulled the Commission's decision. According to the judges, the Fitd is a private entity and therefore "it was up to the Commission to have sufficient evidence to affirm that this intervention was adopted under the effective influence or control of the public authorities and that, consequently, it was, in reality, imputable to the State”.
"In the present case - continues the EU Court - the Commission did not have sufficient evidence for such an affirmation. On the contrary, there are numerous elements in the file which indicate that the FITD (the deposit protection fund fed by the private banks themselves) acted autonomously at the time of the adoption of the intervention in favor of Tercas”.
The Court then observes that the Commission has not demonstrated the involvement of the Italian public authorities in the adoption of the measure in question.
The reaction of the Abi, the Italian banking association, was immediate, expressing "great satisfaction" with the decision of the community court. President Antonio Patuelli and general director Giovanni Sabatini also ask the EU Commission that “you repay savers and damaged competing banks from the consequences of its incorrect decisions which in 2015 imposed the resolution of the "four banks" and other more onerous bank rescue interventions than the preventive initiatives of the Fitd which draws new legitimacy to fully recover its statutory functions".
According to the Secretary General of Assopopolari, Giuseppe De Lucia Lumeno – justice has different times from those of the economy and it cannot always stem the damage of politics. Not having been able to use an instrument that would have been very useful and fully legitimate has caused enormous damage especially for Banca Popolare di Bari and its shareholders as well as having aggravated the banking crisis and, consequently, the economic one. However, the problem - according to De Lucia Lumeno - is fundamental. Without politics, European law has become, more simply, the law of rules which, applied in a Manichean way to our country, have done enormous damage. The case involving Popolare di Bari and Banca Tercas demonstrates this in a paradigmatic way. Today, after the sentence - concludes De Lucia Lumeno - a compensatory attitude on the part of the European Commission would be at least desirable. Certainly a rethinking of the methods of operation is urgent and necessary. The ruling also makes it possible."
Banca Popolare di Bari announces in a note that it has "learned with great satisfaction the pronouncement of the Court of Justice of the European Union", because the Commission's decision "has caused enormous damage to the Bank, its shareholders and all the other stakeholders , also due to the considerable delays caused in the planned growth and development action of the Banca Popolare di Bari Group. This will induce the corporate bodies to take decisions on any retaliation actions and requests for compensation from the European Community".
"This pronouncement - declared the Chairman Marco Jacobini - repays us for years of bitterness and difficulties that we have had to face to continue the Tercas rescue action, on which the Bank has worked for a long time in the interest of savers".
