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24.11.2011 Official
Journal
of
the
European
Union L
309/23
COMMISSION DECISION
of 24 May 2011
on State aid C 88/97 implemented by France in favour of Crédit Mutuel
(notified under document C(2011) 3436)
(Only the French text is authentic)
(Text with EEA relevance)
(2011/747/EU)
THE EUROPEAN COMMISSION,
(5) Crédit Mutuel sent a letter to the Commission on
18 June 1998 setting out arguments to reject the
description of the measures covered by the opening
Decision as State aid, together with a cost account files
Having regard to the Treaty on the Functioning of the European
concerning the Livret bleu. A number of interested parties
Union, and in particular Article 108(2), first subparagraph,
also submitted their comments to the Commission (see
thereof,
Sections 3 and 4, recitals 48 to 59), which forwarded
them to the French authorities on 3 September 1998.
Having regard to the Agreement on the European Economic
Area, and in particular Article 62(1)(a) thereof,
(6) The
complainants
sent
four
additional
written
statements
to the Commission by letters dated 29 October 1999,
Having given interested parties notice to submit their comments
16 May 2000, 16 October 2000 and 19 January 2001,
pursuant to those Articles (
which the Commission forwarded to the French

1 ), and having regard to those
comments,
authorities on 21 February 2000 and 3 November 2000.
Whereas:
(7) On
5
February
2001,
the
Commission
forwarded
to
France the documents received from the AFB.
1. PROCEDURE
(1) On
25
January
1991
the
Association
franaise
des
banques (AFB), the Chambre syndicale des banques popu
(8) From
November
1998
to
December
1999,
at
the
laires and Crédit Agricole lodged a complaint alleging
Commission’s request, a consultant ( 3 ) (hereinafter: ‘the
that France had granted State aid to Crédit Mutuel.
Commission’s consultant’) carried out an audit of the
cost accounts of the Livret bleu. The consultant’s report
was submitted to the French authorities and to Crédit
Mutuel for examination on 10 January 2000. A
(2) The
Commission
first
requested
information
concerning
technical meeting on the report was organised on
the Livret bleu in a letter dated 27 May 1991.
7 February 2000 for the Commission, assisted by its
consultant, the French authorities and Crédit Mutuel.
(3) By
letter
dated
6
February
1998,
the
Commission
informed the French authorities that it had decided to
initiate the procedure laid down in Article 88(2) of the
EC Treaty (now Article 108(2) TFEU) in respect of the
(9) By
letter
dated
14
September
1999,
the
Commission
potential aid measures contained in the Livret bleu savings
asked the French authorities to explain the general
vehicle (
interest tasks entrusted to Crédit Mutuel. On

2 ).
21 February 2000, 3 November 2000 and 5 February
2001, the Commission sent to the French authorities for
comment various documents ( 4 ) submitted to the file by
(4) On
8
April
1998
the
French
authorities
replied
to
the
the complainants concerning the potential ‘pull effect’ of
questions raised by the Commission in its opening
the Livret bleu (see subsection 7.2.3, recitals 110-118).
Decision.
The French authorities presented their comments on
1 February 2001.
( 1 ) OJ C 146, 12.5.1998, p. 6, and OJ C 210, 1.9.2006, p. 12.
( 2 ) This is the commercial name of the savings account in question,
( 3 ) The chartered accountants Littlejohn Frazer, assisted by two French
referred to by the name of ‘compte spécial sur livret du crédit mutuel’
accountancy firms, Auditec and Scacchi.
(special savings account of the crédit mutuel) until 31 December
( 4 ) Including two statistical studies by the consultants Concurrence et
2008 in Article L221-1 of the Monetary and Financial Code.
Stratégie headed by professor of economics Michel Glais.

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L 309/24
EN
Official Journal of the European Union
24.11.2011
(10) On
11
April
2000,
the
European
Banking
Federation
constitute State aid; (ii) if the Commission did classify the
(EBF) lodged a complaint with the Commission against
scheme as aid, it could only be existing aid, and (iii) in
the aid granted by the French State to Crédit Mutuel in
any event it was compatible aid.
the form of exclusive rights to distribute the Livret bleu.
(14) By
Decision
of
15
January
2002
( 6 ) (hereinafter: ‘the
annulled Decision’), the Commission declared the State
(11) In
May
2000
the
Confédération
nationale
du
Crédit
aid granted by France to Crédit Mutuel incompatible with
Mutuel commissioned the Arthur Andersen accountancy
the common market.
firm to review the methodology used in the Crédit
Mutuel cost accounts and to draw up the operating
statement for the Livret bleu. This task was completed
in September 2000 with the submission of a detailed
report on the Livret bleu operating statement, which
(15) The
Decision
of 15 January
2002 was
annulled
by
assessed the result of the Livret bleu cost accounts at a
judgment of the Court of First Instance on 18 January
pre-tax loss of FRF 498 million. This conclusion was
2005 ( 7 ).
based on the taking into account of ‘adjustments’. A
meeting on this report was organised on 2 February
2001 for the Commission and Crédit Mutuel.
Following observations by the Commission, Crédit
(16) The
Commission
did
not
appeal
against
the
judgment.
In
Mutuel asked Arthur Andersen to forward a memo
accordance with Article 266(1) TFEU, the Commission is
dated 8 February 2001 justifying the method used,
required to take the necessary measures to comply with
namely ‘correction of the excess weighting granted to
the judgment. With regard to State aid, this means that,
the IARD insurance activity (Crédit Mutuel’s general
following the annulment of the Decision, the procedure
insurance business ( 5 ))’, which had been criticised by the
is returned to the formal investigation stage.
Commission.
(17) By Decision of 7 June 2006
( 8 ) (hereinafter: ‘the
(12) In
April
2001
the
Commission
asked
its
consultant
to
extension Decision’), the Commission extended the
identify the differences between its report and that of
formal investigation procedure and clarified the purpose
Arthur Andersen and to determine the changes to data
of its assessment of potential aid.
or methodology that could, if necessary, be included in
its previous report. A new final report from the
Commission consultant was handed over on 23 July
2001. It evaluates the result of the Livret bleu cost
(18) France submitted its comments on the extension
accounts at a cumulated non-capitalised profit of FRF
Decision to the Commission by letters dated
1,074 billion (EUR 163,7 million). The report was sent
1 September 2006 and 7 September 2006.
to the French authorities on the same day. At a meeting
on 26 July 2001 between the Commission, the French
authorities, Crédit Mutuel and Arthur Andersen, Crédit
Mutuel and Arthur Andersen announced that they
disagreed with the final conclusions of the Commission’s
(19) On
19
September
2006
the
Commission
received
a
consultant. Arthur Andersen defended its earlier
complaint from the Association des Victimes du Crédit
conclusions in a document dated 13 September 2001,
Mutuel (Association of Victims of Crédit Mutuel).
forwarded as an annex to a memo by the French
authorities dated 15 September 2001. The French
authorities sent the Commission a new memo on
26 October 2001 containing a legal analysis of the
(20) The Commission received the comments of Crédit
Livret bleu from the perspective of Community
Mutuel by letter dated 13 October 2006.
competition law, as well as a memo of 7 January 2002
concerning the cost of the public-service task, reiterating
the figures already presented by Crédit Mutuel without
providing any new information.
(21) By
letter dated 31 October 2006, the Commission
forwarded the observations by Crédit Mutuel to the
French authorities.
(13) The memo sent to the Commission by the French
( 6 ) Commission Decision 2003/216/EC of 15 January 2002 on State
authorities on 26 October 2001 explained why,
aid granted by France to Crédit Mutuel (OJ L 88, 4.4.2003, p. 39).
according to them, (i) the Livret bleu scheme did not
( 7 ) Judgment of 18 January 2005 in Case T-93/02 Confédération
nationale du Crédit Mutuel v Commission [2005] ECR II-143.
( 8 ) Commission Decision C 88/97 of 7 June 2006 on Crédit Mutuel
( 5 ) IARD stands for ‘Incendie, Accidents, Risques Divers’ (fire, accident,
(Livret bleu) — Invitation to submit comments pursuant to
other risks).
Article 88(2) of the EC Treaty (OJ C 210, 1.9.2006, p. 12).

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EN
24.11.2011 Official
Journal
of
the
European
Union L
309/25
(22) Following
two
requests
for
further
information
from
the
(29) This
Decision
closes,
pursuant
to
Article
13
of
Council
Commission dated 22 September 2006 and
Regulation (EC) No 659/1999 of 22 March 1999 laying
28 November 2006, France submitted additional
down detailed rules for the application of Article 93 of
comments by letters dated 8 November 2006 and
the EC Treaty ( 13 ), the procedure relating to the potential
28 February 2007.
aid contained in the Livret bleu savings vehicle.
(23) The Commission met the French authorities on
2. DESCRIPTION OF THE LIVRET BLEU SAVINGS
19 December 2006 and Crédit Mutuel on 15 January
VEHICLE
2007.
2.1. Description of Crédit Mutuel
(30) Crédit
Mutuel
is
a
decentralised
banking
and
insurance
(24) On
10
May
2007
the
Commission
adopted
a
decision
group consisting of a national network of branches with
pursuant to Article 86(3) of the EC Treaty (now
the status of cooperative companies with open-ended
Article 106(3) TFEU) in conjunction with Articles 43
capital. Crédit Mutuel is governed by the law of
and 49 of the EC Treaty (now Articles 49 and 56
10 September 1947, which laid down the principles of
TFEU) requiring France to put an end to the special
cooperation. It is organised on three levels: local, regional
rights ( 9 ) of Crédit Mutuel, Caisses d’pargne and
and national.
Banque Populaire for the distribution of the Livret bleu
(Crédit Mutuel) and Livret A (Caisses d’pargne and
Banque Postale) ( 10 ).
(31) The
Crédit
Mutuel
group,
under
the
group’s
two
trade
names (Crédit Mutuel and Crédit Industriel et
Commercial (hereinafter: ‘CIC’)), has almost 6
000
(25) Since
France
did
not
put
an
end
to
the
special
rights
for
outlets and more than 72
000 employees. Crédit
the distribution of the Livret A and Livret bleu within the
Mutuel’s local branches are attached to 18 regional
nine-month deadline set by the Decision of 10 May
federations that are members of Crédit Mutuel’s
2007, the Commission opened infringement proceedings
national confederation, the central body of the
pursuant to Article 226 of the EC Treaty (now
network. The CIC federates 6 regional banks and
Article 258 TFEU) by sending France on 5 June 2008
specialised subsidiaries in France and abroad.
a letter of formal notice for not complying with the
Decision.
(32) Crédit
Mutuel
is
a
group
with
a
single
management
that
pursues a global policy. It maintains internal financial
(26) On 19 September 2009 the Commission asked France
for more information, which was provided on
solidarity at the level of the confederation, which
13 October 2009.
ensures the liquidity of the regional federations. The

group has the features of a single undertaking from the
perspective of competition law because is has a single
decision-making body at central level.
(27) On
8
October
2009
the
Commission
terminated
the
infringement proceedings because France, by adopting
the reform of 1 January 2009 liberalising the distribution
of the Livret A and Livret bleu ( 11 ), had complied with its
2.2. Description of the Livret bleu
obligation to put an end to the special rights for the
distribution of the livrets (
(33) The Livret bleu was a savings product regulated by the

12 ).
State and distributed exclusively by Crédit Mutuel.
(28) Over the course of 2010 the Commission sent e-mails
with several questions to Crédit Mutuel, to which e-
(34) The
product
was
partially
tax-exempt
under
the
terms
of
mailed replies were received.
the Amending Finance Act for 1975 ( 14 ). The interest on
sums deposited paid to savers qualified for a tax
exemption to the tune of two thirds. The State set the
( 9 ) Crédit Mutuel has an exclusive right to distribute the Livret bleu.
However, this right was called ‘special right’ in the Decision of
gross interest rate on the Livret bleu for savers in such a
10 May 2007 because the Livret bleu is almost identical to the
way that, after deduction of tax ( 15 ), the net rate was
Livret A.
identical to that earned on the Livret A, which was
( 10 ) Decision C(2007) 2110 of 10 May 2007, available on the European
fully tax-exempt.
Commission’s website at: http://ec.europa.eu/competition/
liberalisation/livret_a_en.pdf
( 11 ) See recital 41.
( 13 ) OJ L 83, 27.3.1999, p. 1.
( 12 ) See the Commission press release dated 8 October 2009, available
( 14 ) Article 9 of Law No 75-1242 of 27 December 1975, Amending
on the Commission’s website at: http://europa.eu/rapid/
Finance Act for 1975 (French Official Gazette, 28.12.1975).
pressReleasesAction.do?reference=IP/09/1482&format=
( 15 ) Through the compulsory system of withholding tax at source, paid
HTML&aged=1&language=EN&guiLanguage=en
by Crédit Mutuel on behalf of savers.

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L 309/26
EN
Official Journal of the European Union
24.11.2011
(35) The
State
set
the
interest
rate
on
the Livret bleu at a level
65 % of the resources and 80 % for new deposits) to
above inflation, indexed to the money market. The last
general-interest uses (notably the financing of local
net rate of remuneration on the Livret bleu before this
authorities and other public bodies), with the balance
savings product was discontinued by the reform of
being left to the bank to dispose of freely (hereinafter:
1 January 2009 (see recital 41) was 4 % ( 16 ). The
‘non-earmarked uses’).
maximum amount that savers could deposit in their
Livret bleu account was EUR
15
300. The amount
invested in the Livret bleu rose from EUR 13 billion
(FRF 85 billion) in 1991 to EUR 22 billion in 2008.
(39) The
system was radically reformed by a Decree of
27 September 1991
( 18 ) to bring the Livret bleu
gradually into line with the Livret A system. After the
(36) The Livret bleu’s features — immediate availability of
Decree was adopted, all new deposits (
funds, minimum initial deposit authorised from

19 ) were centralised
with the Caisse des Dépts et Consignations (hereinafter:
EUR 15, no costs (in particular on opening the
‘CDC’) which, in return, paid Crédit Mutuel a brokerage
account), etc. — led to great liquidity. In addition, it
commission. This commission, which was initially set at
was possible to set up direct debits from the Livret bleu
1,3 % of the Livret bleu deposits allocated to the CDC,
account to the national exchequer or public companies
was reduced to 1,2 % on 1 January 2005, then to 1,1 %
such as EDF or France Télécom. The Livret bleu, which
on 1 November 2005. The CDC uses the funds collected
was a savings product aimed at the general public, was
by Crédit Mutuel mainly to finance social housing.
therefore similar in some respects to a current account.
(37) The obligations associated with the use of the funds
collected through the Livret bleu changed over time.
(40) Moreover,
this
radical
reform
of
the
system
was
reflected
in a gradual reallocation of existing deposits ( 20 ). Since
the Decree of 27 September 1991 until the end of the
first half of 1999, the share of existing ‘general-interest
(38) Initially
Crédit
Mutuel
was
obliged
to
allocate
50
%
of
the
uses’ and ‘non-earmarked uses’ fell until all the deposits
resources (in 1983 ( 17 ) this proportion was increased to
were allocated to the CDC.
FRF billion and % 1991 1992 1993 1994 1995 1996 1997 1998 1999
Annual average deposits 85,5 83 80,2 83,4 88,7 91,5 92,7 98,1 98,7
Centralised allocation CDC 1
% 7
% 12
% 24
% 39
% 46
% 51
% 69
% 100
%
General-interest uses 67
% 54
% 46
% 35
% 27
% 20
% 15
% 10
% 0
%
Non-earmarked uses 32
% 39
% 42
% 41
% 35
% 34
% 34
% 21
% 0
%
Source: Littlejohn Frazer.
(41) On
1
January
2009
a
reform
of
the Livret A and Livret
2.3. Reasons for initiating the procedure/extending
bleu came into force that granted all banking institutions
the procedure
the right to distribute Livret A accounts and ended the
distinction between the Livret A and Livret bleu accounts.
(42) As set out in the extension Decision ( 21 ), the Commission
Since 1 January 2009, the Crédit Mutuel Livret bleu has
took the view that it was possible that France had
simply been a Livret A marketed under a different name.
granted aid to Crédit Mutuel through the brokerage
On that date the Livret bleu ceased to exist, and so did the
commission.
exclusive right of distribution by the Crédit Mutuel.
( 18 ) Decree of 27 September 1991 defining the general-interest uses of
the Crédit Mutuel, French Official Gazette No 275, 26 November
( 16 ) The rate was 3 % on the date of the annulled Decision, see footnote
1991, p. 15383.
6. On 1 February 2011 the rate of remuneration on the Livret A
( 19 ) Whereas the stock of existing deposits was gradually transferred to
was 2 % net of tax.
the CDC; see recital 40.
( 17 ) Decree of 31 October 1983 ‘Amount of the obligation by Crédit
( 20 ) Unlike the new deposits, which were fully centralised with the CDC
Mutuel to use funds for the general interest’, French Official
after the Decree of 27 September 1991, see recital 39.
Gazette, 9 November 1983, p. 3278.
( 21 ) See recitals 36 and 50.

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EN
24.11.2011 Official
Journal
of
the
European
Union L
309/27
(43) The Altmark case-law of the Court of Justice holds that
non-earmarked uses. The report by the Commission’s
public-service compensation does not constitute State aid
consultant revealed over-compensation to Crédit Mutuel
within the meaning of Article 107 TFEU if it satisfies
for the years 1991, 1992, 1993 and 1998.
certain cumulative conditions referred to in the Altmark
judgment of 24 July 2003 ( 22 ).
3. THE COMPLAINANTS’ ARGUMENTS
(44) In
its
extension
Decision,
the
Commission
took
the
view
(48) The
complainants’ arguments were presented by the
that the fourth condition under the Altmark case-law
Commission in its Decision of 6 February 1998 on the
might not be satisfied where the State did not assign
initiation of proceedings pursuant to Article 88(2) of the
this public-service task of collecting deposits intended
EC Treaty (now Article 108(2) TFEU). The additional
for social rented housing to the highest bidder in a
written statements submitted since then contain the
tendering procedure, but entrusted it directly through
following new arguments.
negotiations with Crédit Mutuel, which does not allow
for any guarantee, by deduction, that the remuneration
awarded to Crédit Mutuel is not higher than the amount
required by a well-run undertaking. The Commission also
took the view that the French authorities had not demon
(49) A
paper
(updated
at
the
end
of
February
1999
and
strated that the level of compensation had been
communicated to the Commission in October 1999)
determined by reference to the costs of a typical, well-
on the pull effect of the Livret bleu assessed the net
run undertaking in the banking sector. It is not enough
banking income generated by this effect at FRF 17
for the French authorities to highlight that Crédit Mutuel
billion (EUR 2,6 billion), assuming that the increase in
is a well-run undertaking to establish that the level of
Crédit Mutuel’s market shares in every segment over
compensation has been determined on the basis of an
the period 1986 to 1997 was exclusively the result of
analysis of the costs which a typical undertaking, within
distributing the Livret bleu.
the meaning of the Altmark case-law, would have
incurred.
(50) A study conducted by Caisse Nationale du Crédit
(45) The Commission’s view is that the brokerage commission
Agricole, submitted in May 2000, analysed developments
was a state resource that could constitute a selective
in the number of Crédit Mutuel branches. It emerges that
advantage likely to distort competition and affect trade
the overall number of permanent branches fell between
between Member States, which had not been notified.
1991 and 1994, and then increased gradually to reach,
The brokerage commission could therefore contain
in 1998, the same level as in 1990. This trend differed
elements of unlawful aid.
according to the regions: the number of permanent, and
subsequently non-permanent, branches of Crédit Mutuel
dropped in the regions in which Crédit Mutuel was tradi
tionally very strong (Loire Region, Brittany and Alsace),
while the number of branches in other regions grew. It is
(46) In
its
extension
Decision,
the
Commission
thought
it
possible that the measure was not compatible with
therefore likely that Crédit Mutuel reduced its estab
Article 86(2) of the EC Treaty (now Article 106(2)
lishments in rural areas in order to concentrate on
TFEU) and took the view that none of the exceptions
urban areas. These figures appear to refute Crédit
referred to in Article 87(2) and (3) of the EC Treaty
Mutuel’s allegations that it was obliged to maintain a
(now Article 107(2) and (3) TFEU) seemed to apply.
large number of branches in rural areas in the 1990s.

They also tend to show that Crédit Mutuel is capable of
maintaining an exceptionally dense network of branches
even after the removal of all controls by the authorities.
(47) It seemed possible to the Commission, on the basis of
the calculations by its consultant, that the amount of the
compensation had exceeded what was necessary to cover
the costs incurred in discharging the public service obli
(51) On 4 June 1998 the AFB sent the Commission a letter
gations (the collection of deposits intended for social
stating that the commission of 1,3 % on Livret bleu
rented housing), taking into account the related income
deposits centralised with the CDC was excessive given
and a reasonable profit for discharging that obligation.
that, at the same time, the Caisses d’pargne and la
The Commission, having reiterated that the amount of
Poste received 1,2 % and 1,5 % respectively on Livret A
the compensation had to include all the advantages
savings, which were also held centrally by the CDC. The
granted by the State or through state resources in any
AFB pointed out in this letter that it proposed to the
form whatsoever, took account in the calculation of the
French authorities in 1997 that it would ensure the
compensation not only of the net cost of collecting the
collection of Livret bleu deposits for a charge of only
deposits centralised with the CDC, but also of the net
1 %, but that the Government had not replied to this
result (cost or profit) of the general-interest uses and
offer. The AFB underlined in particular that the April
1998 report by Mr Douyère, a member of parliament,
( 22 ) Case C-280/00 Altmark Trans GmbH and Regierungsprsidium
on the modernisation of the Caisses d’épargne indicated
Magdeburg [2003] ECR I-7747.
that the cost of collecting savings for an average Caisse

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L 309/28
EN
Official Journal of the European Union
24.11.2011
d’épargne such as that of Burgundy was 0,96 % of its
(55) Finally,
the
complaint
by
the
Association
of
Victims
of
total funds, and that there was no reason why Crédit
Crédit Mutuel dated 19 September 2006 contains a
Mutuel’s management costs should be higher.
simple allegation of ‘diversion of public savings for
private and commercial ends […] to the detriment of
savers and of the French economy’, which is not
backed up by any serious arguments or evidence
relating to potential unlawful State aid.
(52) A
memorandum produced by the Glais consultancy
dated August 2000, submitted at the request of the
AFB, contains statistics concerning the competitive
advantage thought to be enjoyed by Crédit Mutuel as a
4. COMMENTS FROM THIRD PARTIES
result of the exclusive rights to distribute the Livret bleu.
(56) Following the publication of the opening Decision of
An examination of time-series data shows the total
6 February 1998, the Commission received comments
amount of Livret bleu deposits and the total amount of
from numerous third parties.
other deposits increased considerably until a turning
point in 1985 to 1987. The growth in loans to
households continues after that date and remains
stronger for Crédit Mutuel than for its main competitors.
(57) Some
of
Crédit
Mutuel’s
competitors
cited
the
damage
The Glais consultancy expert deduced that ‘the Livret bleu
they had suffered as a result of exclusive distribution
effect therefore seems to have worked by attracting
rights for the Livret bleu being granted to Crédit Mutuel.
customers and, from the mid-1980s, the positive effect
These banks generally argued that the Livret bleu
seems to have continued without an increase in deposits.
generated a pull factor making them lose clients to
Thus the customers who remained loyal appear to have
Crédit Mutuel and they wanted to see the end of this
been the ones who financed Crédit Mutuel’s expansionist
exclusive right. The following establishments sent
strategy from that period on’. The expert concluded that
comments to this effect to the Commission:
Crédit Mutuel’s (essentially credit) activities appear to
have been unrelated to average developments in the
banking market, notably on the basis of an indicator of
the persistence of random economic shocks on activity
Banque Dupuy de Parseval
variables and by creating a model based on a simple
credit-demand equation. The expert explains this
Banque Natexis
phenomenon by the fact that Crédit Mutuel’s customers
Banque de Picardie
remain much more loyal than those of other banking
networks, for example because of the Livret bleu.
Banque Populaire de Bourgogne

Banque Populaire Bretagne Atlantique
Banque Populaire du Centre
(53) In
a
second
memorandum
(December
2000),
the
Glais
Banque Populaire Centre-Atlantique
consultancy proposed a new econometric analysis of the
Banque Populaire de Champagne
degree of loyalty of each set of customers to each
banking network. According to the expert, the figures
Banque Populaire de la Cte d’Azur
corroborate the hypothesis that Crédit Mutuel and
Banque Populaire du Dauphiné et des Alpes du Sud
Caisses d’pargne have much better means of retaining
Banque Populaire de Franche-Comté, du Maconnais et de
their customers’ loyalty than other banks. But it is
l’Ain
impossible to determine whether the offer of a tax-free
savings account or the use of a dense network of
Banque Populaire du Haut-Rhin
branches in different regions (two instruments shared
Banque Populaire de La Loire
by these networks) is the reason for the greater
customer loyalty.
Banque Populaire de Lorraine

Banque Populaire de Lyon
Banque Populaire du Midi
(54) On a matter incidental to these proceedings, the
Banque Populaire du Massif Central
Commission also received an additional statement from
Banque Populaire de l’Ouest
the complainants which stated that the purchase by
Crédit Mutuel in April 1997 of Crédit Industriel et
Banque Populaire Provenale et Corse
Commercial (CIC), when the latter was being privatised
Banque Populaire des Pyrénées Orientales, de l’Aude et de
(it had previously been owned by the public insurance
l’Ariège
group GAN), had been possible because of the aid it had
Banque Populaire du Quercy et de l’Agenais
received for the Livret bleu, which increased its market
share of savings from 2 % in 1969 to approximately
Banque Populaire Savoisienne
6,9 % in 1997. According to the complainants, the
Banque Populaire de la Région conomique de
undertaking’s own funds had increased rapidly because
Strasbourg
of the aid in question, rising from FRF 650 million
(EUR 99 million) in 1974 to FRF 47,3 billion (EUR 7,2
Banque Populaire du Sud-Ouest
billion) in 1997.
Banque Populaire du Tarn et de l’Aveyron

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EN
24.11.2011 Official
Journal
of
the
European
Union L
309/29
B.P.ROP Banque Populaire
Mr Leleu, Director of Crédit Mutuel Nord
Banque de Savoie
Mr Maille, President of the Brest urban area
Crédit Commercial de France
Mr Masclet, Member of the Nord-Pas-de-Calais Regional
Crédit Commercial du Sud-Ouest
Council
Crédit Lyonnais
Mr Méhaignerie, President of the General Council of the
Ille et Vilaine Department
Société Générale
Mr Mio, Member of the Nord-Pas-de-Calais Regional
Union des Banques à Paris.
Council
Ms Novak, President of the Association pour le Droit à
l’Initiative Economique
(58) At the same time, in addition to the comments in
Ms Permuy, Member of the Nord-Pas-de-Calais Regional
defence of Crédit Mutuel, presented in Section 4, the
Council
Commission received comments from the following
M. Mr Albert Rivaux, Member of the General Council of
third parties which were in favour of the Livret bleu
the Pas-de-Calais Department
vehicle:
Mr de Rohan, President of the Brittany Regional Council
Mr Valla, Member of the General Council of the Ardèche
Department
M. Mr Bertholet, MP (Drme Department)
Mr Vanlerenberghe, Mayor of Arras
Mr Blondel, Member of the General Council of the Nord
Mr Villain, Mayor of Cambrai
Department
Mr de Villiers, MP (Vendée Department).
Mr Cabot, Director of the Regional Youth Information
Centre of Toulouse
Mr Cormorèche, Mayor of Montluel
(59) The
vast
majority
of
third
parties
underlined
the
role
Mr Cornelis, Member of the General Council of the Nord
played by Crédit Mutuel, particularly at regional level,
Department
in financing the social economy, especially non-profit-
Mr Chavannes, Mayor of Angoulême
making organisations. They also stressed the supporting
Mr Crépeau, MP (Charente Maritime Department)
role it plays with respect to people in lower income
groups, from which a large part of its customers come.
Mr Debavelaere, Senator (Pas-de-Calais Department)
Several local elected representatives emphasised Crédit
Mr Decool, Mayor of Brouckerque
Mutuel’s role in setting up undertakings and creating
jobs, and in developing local initiatives in conjunction
Mr Delevoye, Senator (Pas-de-Calais Department)
with the local authorities. Others considered that
Mr Delnatte, MP (Nord Department)
because of its decentralised structures, Crédit Mutuel
M. Mr Dolez, MP (Nord Department)
was better able than centralised institutions to meet
local needs and respond to the requirement of balanced
M. Mr Ewald, Regional Delegate of the Association pour le
regional development.
Droit à l’Initiative Economique
Mr Fronton, Union Départementale des Associations
Familiales de Haute-Garonne
5. CRDIT MUTUEL’S COMMENTS
Mr Foy, Senator (Nord Department)
Mr Galiègue, President of the Solesmes Caisse de Crédit
(60) Crédit
Mutuel
criticises
the
Commission
for
having
taken
Mutuel
a particularly long time in dealing with the case.
Ms Gournay, Mayor of Castre
Ms Armelle Guinebertière, Member of the European
Parliament
(61) Furthermore,
according
to
Crédit
Mutuel,
the
judgment
Mr Hervé, Mayor of Rennes
by the Court of First Instance, in addition to stressing the
failure to state valid grounds, contained criticism of the
Mr Humez, President of the Pas-de-Calais Comité départe
argument presented by the Commission, which was not
mental de lutte contre la mucoviscidose
taken into account in the extension Decision, in
Ms Ingelaere, President of Flandr’action
particular as far as the calculation of any overcompen
sation was concerned. In this respect, Crédit Mutuel
Mr Juppé, Mayor of and MP for Bordeaux
accuses the Commission of adding together the positive
Mr Lapalu, President of the Association Animation et
full-year amounts without deducting the figure for the
Gestion d’Organismes Privés
negative full-year amounts, contrary to the method put
Mr Lazaro, MP (Nord Department)
forward in the Community framework for State aid in
the form of public service compensation (hereafter ‘the
Mr Lebreton, President of the General Council of Ctes
2005 Community framework’) ( 23 ).
d’Armor Department
M. Mr Ledieu, Mayor of Le Cateau-Cambrésis
( 23 ) OJ C 297, 29.11.2005, p. 4.

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L 309/30
EN
Official Journal of the European Union
24.11.2011
(62) According
to
the
bank,
the
brokerage
commission
fulfils
It is of the opinion that the Commission has not
the four conditions of the Altmark case-law:
provided sufficient grounds to underpin its view
that this condition has not been met.
(a) With respect to the first condition, Crédit Mutuel was
engaged in the provision of two services of general
(63) In
any
event,
Crédit
Mutuel
holds
that
the
measure
is
economic interest, firstly by maintaining a significant
compatible with the internal market on the basis of
branch presence in rural areas for regional devel
Article 106(2) TFEU. Crédit Mutuel criticises, inter alia,
opment purposes and secondly by gathering
the method used to calculate the overcompensation to
deposits intended to finance social housing. As far
which reference was made in the extension Decision. In
as maintaining branches in rural areas is concerned,
its view, the Commission made calculation errors in its
it disputes the Commission’s conclusion that French
assessment of gross operating profit for the Livret bleu by
laws and regulations remain too vague to entrust
making its own the mistaken conclusions of its
Crédit Mutuel with any such role and thus for the
consultant, despite the areas of disagreement outstanding
first condition of the Altmark case-law to be fulfilled.
between the Commission’s consultant and Crédit
According to Crédit Mutuel, the Commission draws
Mutuel’s consultant ( 25 ).
this conclusion from the fact that this legislation did
not place any specific constraints on Crédit Mutuel
since it applied to the banking sector as a whole.
Crédit Mutuel also holds that the Commission is
trying to transfer to it the burden of proof that the
first condition of the Altmark case-law has been met,
(64) Crédit
Mutuel
also
disagrees
with
the
annual
approach
which is not what is laid down in the case-law in
used by the Commission (that is the fact of taking into
question.
account only the amounts relating to years of overcom
pensation, without offsetting them with the amounts for
years of undercompensation), which it believes runs
counter to a number of precedents, the annulled
Decision and, in its view, the Community framework
of 2005 ( 26 ). The Commission should adopt an overall
approach (that is offsetting all of the amounts relating to
(b) With respect to the second condition, Crédit Mutuel
years of overcompensation by those for years of under
stresses that the brokerage commission was created
compensation) for the whole of the 1991-98 period, on
at the same time as the obligation to centralise to
the one hand, and for the whole of the period beginning
centralise deposits with the CDC and that the
in 1999, on the other.
conditions for calculating the commission were
drawn up in an objective and transparent manner.
(65) In
addition,
in
its
extension
Decision
the
Commission
did
not take reasonable profit into account properly. It based
(c) As for the third condition, the bank states that the
its assessment of reasonable profit on the costs of regu
compensation was not sufficient to cover the costs of
latory capital, estimated at 6 %, whereas these costs
gathering deposits, since the activity relating to the
represent a cost accounting expense, not a margin. The
funds transferred to the CDC posted a loss over the
Commission should have taken into account the return
whole of the 1991-2005 period.
on equity recommended by Arthur Andersen
( 27 ).
Moreover, the calculation of reasonable profit was
made on the basis of a rapidly diminishing base, which
falls to zero on the complete centralisation of deposits
( 25 ) These were (i) non-life insurance restatement; (ii) the calculation of
(d) Crédit Mutuel further holds that the fourth condition
a normal margin (reasonable profit); and (iii) member liability. See
was met. The level of the brokerage commission was
Annex 1 of the extension Decision.
based on the costs actually incurred by Crédit Mutuel
( 26 ) Crédit Mutuel refers to point 21 of the Community framework of
2005, according to which, when services of general economic
in distributing the Livret blue. Crédit Mutuel is a well-
interest have costs that vary significantly each year, overcompen
run undertaking within the meaning of the Altmark
sation in excess of 10 % in certain years may prove necessary.
case-law, since its administrative costs are amongst
( 27 ) Arthur Andersen suggested a method for calculating shareholders’
the lowest. The Commission is, moreover, said to
funds which increased the cost of equity compared to the initial
have acknowledged this in its extension Decision (
assessment made by Crédit Mutuel. Arthur Andersen suggested

24 );
using a rate calculated as the ratio between pre-tax profit and
own funds. This rate, in Arthur Andersen’s view, would reflect
( 24 ) Crédit Mutuel simply refers to paragraph 13 of the extension
more accurately the overall profitability of the bank, whereas
Decision where the Commission mentions Crédit Mutuel’s
Crédit Mutuel had adopted as the cost of own funds the amount
financial results for 2004 (balance sheet total, net profit, cost-to-
of dividends actually distributed, giving a rate of profitability for all
income ratio, shareholders’ funds and solvency ratio).
its activities of 6 %.

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EN
24.11.2011 Official
Journal
of
the
European
Union L
309/31
with the CDC, since such deposits incur no cost in terms
(b) With respect to the second condition, France is of the
of regulatory capital. Crédit Mutuel emphasises that the
opinion that the parameters for calculating the
indicator used by the Commission leads to it being
compensation were established in advance in an
deprived of any normal margin on the Livret bleu. In its
objective and transparent manner.
view, any bank must be able to generate a normal
margin, even on a centralised use incurring no cost of
capital within the strict regulatory meaning of the
solvency ratio.
(c) As for the third condition, it argues that the amount
of compensation (the brokerage commission) did not
exceed what was necessary to cover the costs of the
system and refers in this respect to Crédit Mutuel’s
(66) Nor did the Commission correctly take into account the
detailed profit-and-loss accounts for the Livret bleu for
expenses arising from the other service of general
the years 1999 to 2005.
economic interest which Crédit Mutuel regards itself as
providing, that is maintaining a branch presence in rural
areas with a view to encouraging saving by the general
public throughout the country’s territory by facilitating
(d) The fourth condition is also fulfilled, with France
access to banking services to the greatest number of
stating that Crédit Mutuel’s management meets the
people.
efficiency requirements ( 30 ).
(67) Crédit Mutuel also denies that there was ever any pull
(70) With respect to the conditions relating to the existence of
factor. It notes that the Commission had acknowledged
aid, France refers to the arguments it put forward before
in its annulled Decision that there was no formal
the annulment of the 2002 Decision:
evidence attesting to a pull factor and is of the view
that no new evidence has appeared since then.
(a) The state resources condition is not fulfilled since the
income derived by Crédit Mutuel from the deposits
(68) With
respect
to
the
proceedings,
Crédit
Mutuel
relies
on
not centralised with the CDC (non-earmarked uses
a number of general principles of Community law to
and general-interest uses) arose from resources of
dispute the recovery of potential aid, inter alia, the
private origin (monies deposited by savers) which
principle of legitimate expectation and the duty to act
were not at the disposal of the public authorities.
within a reasonable time.
(b) Trade between Member States could not have been
6. COMMENTS BY FRANCE
affected before completion of the single market for
banking and financial activities on 1 January 1993,
(69) France is of the opinion that the conditions of the
following the adoption of Second Council Directive
Altmark case-law have been met:
89/646/EEC of 15 December 1989 on the coor
dination of laws, regulations and administrative
provisions relating to the taking up and pursuit of
the business of credit institutions and amending
Directive 77/780/EEC (hereinafter ‘the Second
(a) With respect to the first condition, it emphasises that
Banking Directive’)
(
the Commission has acknowledged that Crédit

31 ) The French authorities
considered that, after that date, given the absence
Mutuel was attributed the task of providing a
of an official European statute for cooperative
service of general economic interest by gathering
societies and the constraints that this situation
deposits to finance social housing. It recalls that the
produced in terms of the cross-border expansion of
Commission stated in its extension Decision that
cooperative societies such as Crédit Mutuel, the
maintaining branches in rural areas for regional
latter’s constituent regional entities did not operate
development purposes could also be regarded as a
across national borders. Moreover, the Livret bleu
service of general economic interest ( 28 ), but does
accounts opened for non-residents represented less
not react to the arguments raised by the Commission
than 0,1 % of the total. The French authorities also
in its extension Decision that the first condition of
stated that foreign banks in France were targeting a
the Altmark case-law has not been met because there
very different market to that of Crédit Mutuel.
is no national legislation or regulations requiring, in a
sufficiently clear manner, the institution to perform
this task pursuant to Article 106(2) TFEU (
(

29 ).

30 ) France simply refers to paragraph 13 of the extension Decision
where the Commission mentions Crédit Mutuel’s financial results
for 2004 (balance sheet total, net profit, cost-to-income ratio,
( 28 ) See paragraph 25 of the extension Decision.
shareholders’ funds and solvency ratio).
( 29 ) See paragraph 28 of the extension Decision.
( 31 ) OJ L 386, 30.12.1989, p. 1.

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L 309/32
EN
Official Journal of the European Union
24.11.2011
(c) The brokerage commission paid by the CDC to
Decision the conclusions of its consultant on the three
Crédit Mutuel on the total Livret bleu deposits
areas of disagreement between France and the
centralised with it did not constitute aid, but rather
Commission. France specified that for the whole of the
remuneration for a service rendered by the bank, the
1999-2005 period the system relating to the Livret bleu
price of which had been set in 1991 at 1,3 %. The
was undercompensated by the state. The amount of the
French authorities underlined the scale of the
brokerage commission did not exceed what was required
management costs for the Livret bleu because of the
to cover the distribution costs of the Livret bleu as
number of accounts with deposits totalling less than
reflected in the cost accounts for the Livret bleu, which
FRF 5 000 (EUR 762). They referred to the cost
were drawn up in partnership with the Commission
accounts produced by Crédit Mutuel (after the
(subject to two adaptations
( 33 )) and meet the
measure at hand was adopted), concluding that this
requirements of Commission Directive 80/723/EEC of
level of remuneration was fully justified. The French
25 June 1980 on the transparency of financial relations
authorities argued that the advantages which Crédit
between Member States and public undertakings as well
Mutuel received from the Livret bleu should be
as on financial transparency within certain under
examined in the light of the costs relating to a
takings ( 34 ). France also explained that the recent
general economic interest objective. In this respect,
reductions in the brokerage commission were made to
they drew the attention of the Commission to the
meet the requirements of those engaged in financing
increase in the attribution of the deposits to financing
social housing ( 35 ).
objectives of general interest, for which the
proportion rose from 50 % of Livret bleu deposits
between 1975 and 1983, to 65 % between 1983
and 1991, to 100 % of deposits centralised with
the CDC from 1998 onwards.
(73) The
French
authorities
explained
that
a
mechanism
for
the repayment of any overcompensation has existed since
1999.
(d) Even assuming that there had been aid, it would have
been existing aid as the Livret bleu scheme was set up
before the liberalisation of the banking sector on
1 January 1993 (the deadline for transposing the
Second Banking Directive).
(74) France also explained that the risk of a lack of liquidity
for the first month was borne by Crédit Mutuel and the
risk of a lack of liquidity beyond that was borne by the
CDC. With respect to deposits collected for Livret bleu
accounts, France further explained that the risk-
weighting percentage for the calculation of capital
requirements needed for the solvency margin was zero.
(71) In
their
letter
of
26
October
2001,
the
French
authorities
It pointed out that the risk weighting for Crédit Mutuel’s
provided the reason why, were the Commission to
capital requirements for other savings products and
conclude the existence of aid, that aid would in any
resources other than the Livret bleu ranged from […]%
event be compatible with the internal market in
to […]% from 1999 to 2005. The French authorities
accordance with Article 106(3) TFEU. They criticise the
specified that, given the irrelevance of applying the
Commission for making mistakes in its calculation of the
European solvency ratio after the complete transfer of
gross operating profit from the Livret bleu by not
the deposits to the CDC in 1999, in order to calculate
following the method put forward by Crédit Mutuel’s
the reasonable profit corresponding to the Livret bleu,
consultant ( 32 ). They also contend that the Commission
Crédit Mutuel factored in a cost of capital in reference
should take into account a reasonable profit, which they
to its other savings products and resources, which it
estimate at […] (*).
capped ([…]% to […]% between 1999 and 2005). At
the Commission’s request, France also provided precise
information on the margin of compensation relating to
the establishment of a compulsory reserve fund with the
Banque de France.
(72) In
their
comments
on
the
extension
Decision,
the
French
( 33 ) The first change concerns the inclusion of the compulsory
authorities also criticise the Commission for its ‘asym
payments to the deposit guarantee fund introduced by the Law
of 25 January 1999 on savings and financial security, and the
metrical reasoning’, in that it did not offset the
second concerns the change in the calculation of own funds to
amounts for years in which overcompensation was
take account of reasonable profit from 1999.
found (1991, 1992, 1993 and 1998) by those for
( 34 ) OJ L 195, 29.7.1980, p. 35. This Directive was repealed by
years of undercompensation (1994 to 1997) and for
Commission Directive 2006/111/EC of 16 November 2006 on
repeating in their entirety in Annex 1 to the extension
the transparency of financial relations between Member States
and public undertakings as well as on financial transparency
within certain undertakings (OJ L 318, 17.11.2006, p. 17).
( 32 ) On the areas of disagreement between the Commission’s consultant
( 35 ) According to the French authorities, the reduction in the brokerage
and Crédit Mutuel’s consultant, see footnote 25.
commission enabled the CDC to lower the cost of financing for
(*) Covered by the business secret obligation
social landlords.

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EN
24.11.2011 Official
Journal
of
the
European
Union L
309/33
7. ASSESSMENT
neither the French authorities nor Crédit Mutuel chal
lenged the conclusion in the extension Decision that,
7.1. Existence of aid
after 1991 (or, to be precise, 1 July 1991), there was
no longer any instrument in force on the basis of which
(75) In the extension Decision the Commission considered
Crédit Mutuel might have been entrusted, within the
that the only measure at issue likely to contain aid
meaning of Article 86 EC (now Article 106 TFEU),
elements was the brokerage commission paid to Crédit
with the task mentioned in paragraph 24, point (iii) of
Mutuel by the CDC ( 36 ).
the extension Decision (maintenance of branches in rural
areas for regional development purposes) ( 40 ).
(76) Such
aid
as
may
be
hidden
in
the
brokerage
commission
was introduced on 27 September 1991 by the Order of
(80) It is therefore only as regards the task of gathering
the same date and, in the present Decision, is analysed up
deposits with a view to financing social housing that it
to the liberalisation of the distribution of the Livret A and
falls to be examined whether the Altmark case law
the harmonisation of the Livret bleu with it on 1 January
applies.
2009 ( 37 ).
(81) The
Commission
would
recall
that
Member
States
have
a
7.1.1. The conditions of the Altmark judgment are not met
wide margin of discretion as to the nature of services
(77) According
to
the Altmark case law (
which may be classified as services of general economic

38 ) compensation paid
in consideration of public-service tasks does not
interest. It considers that the Decrees implementing the
constitute State aid within the meaning of
provisions of Article 9 of the Amending Finance Act for
Article 107(1) TFEU if four cumulative conditions are
1975 ( 41 ) and of Article 24 of the Amending Finance Act
met.
for 1982
( 42 ), and in particular the Order of
27 September 1991, clearly entrust to Crédit Mutuel
the task (as defined in Articles R 323-10 and R 331-
14 of the Construction and Housing Code) of gathering
funds for transfer to the CDC in order that the latter
might finance social housing. The Commission is of
(78) In
their
comments
in
response
to
the
extension
Decision
the opinion that, in classifying this task as a service of
the French authorities and Crédit Mutuel invoke the
general economic interest, France has not committed a
existence of two services of general economic interest,
manifest error of assessment.
namely the maintenance of a significant branch
presence in rural areas for regional development
purposes and the gathering of deposits intended for
social housing financing.
(82) According to the fourth condition of the Altmark
judgment, ‘where the undertaking which is to discharge
public service obligations, in a specific case, is not chosen
pursuant to a public procurement procedure which
(79) However, even before the measure at issue was
would allow for the selection of the tenderer capable
introduced, Crédit Mutuel was no longer under any obli
of providing those services at the least cost to the
gation to maintain rural branches since the 1987 repeal
community, the level of compensation needed must be
of the Bank Branches (opening and closing) Act (loi
determined on the basis of an analysis of the costs which
relative à l’ouverture et à la fermeture des agences bancaires)
a typical undertaking, well run […] so as to be able to
and the abolition on 1 July 1991 of the supervision
meet the necessary public service requirements, would
arrangements (which were kept in place with respect to
have incurred in discharging those obligations, taking
Crédit Mutuel from 1987 to 1991) ( 39 ). Moreover,
into account the relevant receipts and a reasonable
profit for discharging the obligations’ ( 43 ).
( 36 ) See paragraph 50 of the extension Decision (exists only in French):
‘[…] la Commission ne vise dans la présente procédure comme
mesure pouvant éventuellement contenir des éléments d’aide
d’Etat que la commission d’intermédiation’.
( 37 ) See recital 41.
( 38 ) See footnote 22.
(83) The
Commission
considers
that
the
fourth
condition
is
( 39 ) The French authorities referred to the Bank Branches (opening and
not met in the case of the task of gathering deposits to
closing) Act, which was repealed in 1987. From 1987 to 1991,
supervision arrangements were nevertheless kept in place with
respect to Crédit Mutuel. The rules provided for a system for the
( 40 ) See paragraph 29 of the extension Decision.
authorisation, and not a system for the formal prohibition, of
( 41 ) See recital 34 and footnote 14.
branch closures or restructurings, in particular as from 1987.
( 42 ) Law No 82-1152 of 30 December 1982 (French Official Gazette of
These supervision arrangements were abolished on 1 July 1991
31.12.1982, p. 3995).
within the more general framework of the renegotiation of the
( 43 ) See paragraph 93 of the Altmark judgment, cited above in
contractual relations between the State and Crédit Mutuel.
footnote 22.

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L 309/34
EN
Official Journal of the European Union
24.11.2011
be centralised with the CDC for the purpose of financing
7.1.2. The conditions relating to the existence of aid are met
social housing. It should be noted that the State assigned
this task, not to the highest bidder via a public
(85) Article
107(1)
TFEU
provides
that
any
aid
granted
by
a
procurement procedure, but directly by negotiation
Member State or through State resources in any form
with Crédit Mutuel. The level of brokerage commission
whatsoever which distorts or threatens to distort
was not determined by reference to the costs connected
competition by favouring certain undertakings or the
with the performance of the service of general economic
production of certain goods shall, in so far as it affects
interest incurred by a typical, well-run undertaking. The
trade between Member States, be incompatible with the
brokerage commission of 1,3 % could not be based on
internal market.
the actual costs incurred by Crédit Mutuel in performing
the service of general economic interest because there
was no separate accounting for the Livret bleu in
September 1991 making it possible to trace the costs
linked specifically to the Livret bleu in the bank’s
accounts. The separate accounting for the Livret bleu
7.1.2.1. I m p u t a b i l i t y t o t h e S t a t e a n d s t a t e
was developed several years later and applied retro
r e s o u r c e s
actively for the years up to 1991. There is therefore
nothing to indicate that the level of brokerage
(86) The
brokerage
commission was
paid
annually
( 46 ) to
commission was determined by reference to the costs
Crédit Mutuel by the CDC under an agreement
of a typical, well-run undertaking performing the
between the State and Crédit Mutuel laying down
general-interest task in question. The French authorities
detailed rules for implementing the Order of
argue that Crédit Mutuel is, on the whole, well run.
27 September 1991. The amount of brokerage
However, they do not really back up this claim, but
commission is set by the State to compensate for the
instead refer mainly to paragraph 13 of the extension
public service obligations. Moreover, the CDC is a
Decision, where the Commission simply mentions the
public undertaking the conduct of which is imputable
overall financial results (balance-sheet size, net profit or
to the State ( 47 ). The condition concerning imputability
loss, cost/income ratio, equity capital and solvency ratio)
to the State and state resources is therefore met.
of Crédit Mutuel in 2004. At all events, if a Member
State has determined the level of compensation on the
basis of an analysis of the costs of a typical, well-run
undertaking, it should have no difficulty proving it to the
Commission and outlining the methodology followed —
7.1.2.2. S e l e c t i v i t y
something which France has not done in this case.
Finally, the fact that, as soon as the distribution of
(87) The
brokerage
commission
was
granted
exclusively
to
Livrets A and Livrets bleus was liberalised on 1 January
Crédit Mutuel in return for its gathering savings, to be
2009, Crédit Mutuel’s brokerage commission went down
centralised with the CDC for the purpose of financing
from 1,1 % to 0,6 % seems to indicate that the level of
social housing, by means of the Livret bleu, for which
that commission was higher than it would have been had
Crédit Mutuel held an exclusive right of distribution.
it been based on the costs of a typical, well-run under
This measure is therefore selective in nature.
taking performing the same general-interest task.
7.1.2.3. T h e c o n d i t i o n s o f t h e A l t m a r k
j u d g m e n t
b e i n g
i n a p p l i c a b l e ,
e x a m i n a t i o n a s t o t h e e x i s t e n c e
(84) In
so
far
as
the
conditions
of
the Altmark judgment are
o f
a n
a d v a n t a g e
d i s t o r t i n g
cumulative, it is enough that only one of the conditions
c o m p e t i t i o n
is not met for the case law not to apply and for the
measure at issue to be able to constitute State aid. It
(88) Given
that
it
constituted
a
transfer
of
state
resources
for
follows from the above that the measure at issue does
the benefit of Crédit Mutuel alone, the brokerage
not meet the fourth condition of the Altmark judgment.
commission improved the competitive position of that
The Altmark case law therefore does not apply and it
bank compared with its competitors. According to the
needs to be considered whether the measure does in
case law of the Court of Justice, an improvement in the
fact constitute State aid ( 44 ) ( 45 ).
( 46 ) Under the agreement between the State and Crédit Mutuel laying
( 44 ) According to point 7 of the 2005 Community framework, ‘If the
down detailed rules for implementing the Order of 27 September
Member States do not respect these criteria [that is to say, the four
1991, the CDC must pay annually to Crédit Mutuel […] the
conditions of the Altmark case] and if the general criteria for the
amount of compensation due on the last working day of each year.
applicability of Article 87(1) of the EC Treaty [now Article 107(1)
( 47 ) See the judgment of the Court of First Instance in Case T-358/94
TFEU] are met, public service compensation constitutes State aid’
Air France v Commission [1996] ECR II-2019, in particular
(underlining added).
paragraphs 58 to 61. See also the Commission Decision
( 45 ) This examination is independent of the fact that the reform of
2010/606/EU of 26 February 2010 on State aid C 9/09 (ex NN
1 January 2009 put an end to the infringement of European
49/08, NN 50/08 and NN 45/08) implemented by the Kingdom of
public procurement law resulting from the direct assignment to
Belgium, the French Republic and the Grand Duchy of Luxembourg
Crédit Mutuel of the public-service task of gathering deposits
for Dexia SA (OJ L 274, 19.10.2010, p. 54), recitals 123, 124 and
intended for social rented housing.
125.

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competitive position of an undertaking as a result of
there were still certain obstacles to freedom of estab
State aid generally constitutes proof that competition
lishment and freedom to provide services in the
with other undertakings which have not received
banking sector. The Decision of 10 May 2007 states
similar aid is being distorted ( 48 ).
that the Livret bleu belongs to a ‘market’ for liquid bank
savings, which implies that the activity in question is
open to competition and in no way supports the
French authorities’ argument that that activity was not
opened to competition until 1993. On the contrary,
7.1.2.4. E f f e c t o n t r a d e b e t w e e n M e m b e r
the Decision refers to the existence of a ‘mature’
S t a t e s
market ( 51 ).
(89) Moreover,
according
to
settled
case
law,
there
is
an
effect
on trade between Member States where the undertaking
in receipt of aid carries on its activities in a sector which
7.2. Compatibility of the aid with the internal
is open to competition and in which there is trade
market
between Member States ( 49 ). From 1979, the share of
the market held by foreign banks reached 8 % in the
(93) Since
the
measure
at
issue
contains
elements
of
State
aid,
case of lending business (4 % for branches without
the Commission must analyse the compatibility of the
legal personality, 4 % for subsidiaries constituted under
said measure with the internal market.
French law) and 4,5 % in the case of deposit business
(2 % and 2,5 % respectively). The share held by non-
French European banks compared with all foreign
banks was 50 % in the case of loans and 70 % for
(94) Article 106(2) TFEU provides that: ‘Undertakings
deposits. Crédit Mutuel has therefore been faced since
entrusted with the operation of services of general
the 1970s with competition from foreign networks on
economic interest […] shall be subject to the rules
French soil. Moreover, the liquid bank savings market to
contained in the Treaties, in particular to the rules on
which the Livret bleu belonged, and which also includes
competition, in so far as the application of such rules
the Codevi, the LEP, the Livret jeune, ordinary savings
does not obstruct the performance, in law or in fact, of
accounts and the CEL
( 50 ), was already open to
the particular tasks assigned to them. The development
competition during the period considered.
of trade must not be affected to such an extent as would
be contrary to the interests of the Union’.
(90) The
Commission concludes, therefore, that the four
necessary preconditions for the existence of aid are met.
(95) According to the case law of the Court of Justice, the
decision-making practice of the Commission and the
2005 Community framework, Article 106(2) TFEU
signifies that State aid to an undertaking entrusted with
the operation of a service of general economic interest
may be declared compatible with the internal market if
7.1.2.5. U n l a w f u l n e s s o f t h e a i d m e a s u r e
the aid measure fulfils the following conditions:
(91) Lastly, the aid measure is unlawful because it was not
notified to the Commission in accordance with
Article 108(3) TFEU and was implemented after the
entry into force in France of the Treaty establishing the
(a) the service provided has the features of a service of
European Economic Community.
general economic interest;
(b) the undertaking is actually required to perform this
(92) In
answer
to
the
French
authorities’
argument
that
the
aid
service of general economic interest by the State by
is existing aid since it was adopted before the expiry of
means of one or more official acts;
the time limit for transposal of the second Banking
Directive, namely 1 January 1993, the Commission
would point out that that Directive sought to complete
the internal market in the area of credit institutions from
(c) the principles of necessity and proportionality are
the point of view of freedom of establishment and
respected; and
freedom to provide services. It does not imply that the
relevant market was closed to competition before the
brokerage commission was adopted, but simply that
(d) the development of trade must not be affected to
( 48 ) Judgment in Case C-730/79 Philip Morris v Commission [1980] ECR
such an extent as would be contrary to the Union’s
2671, paragraphs 11 and 12.
interests.
( 49 ) Judgment in Case C-102/87 France v Commission [1988] ECR 4067,
paragraph 19.
( 50 ) See recital 45 of the Decision of 10 May 2007.
( 51 ) See recitals 58 and 90 of the Decision of 10 May 2007.

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(96) Conditions
(a)
and
(b)
are
fulfilled
for
the
reasons
set
out
(101) As stated in recitals 75 and 76, the only measure at issue
in recital 81.
in the present case is the brokerage commission, the
principle of which was established on 27 September
1991, at the same time as Crédit Mutuel was tasked
with centralising its deposits with the CDC with a view
to financing social housing. Before that date, neither the
brokerage commission nor the centralisation with the
(97) As
far
as
condition
(d)
is
concerned,
there
is
no
evidence
CDC existed. Consequently, the Commission must
in the Commission’s possession to suggest that intra-
begin its assessment of the proportionality of the aid
Community trade has been affected to such an extent
as from that date.
that the aid does not satisfy this condition. In particular,
the Decision of 10 May 2007 asked for an end to the
exclusivity of the right of distribution of the Livret bleu
since the special rights connected with the distribution of
the Livret bleu constituted a restriction on freedom to
provide services within the Community ( 52 ). Nevertheless,
provided that it has not overcompensated the general
interest service entrusted to Crédit Mutuel, the
(102) The costs and revenues connected with the performance
brokerage commission cannot be considered as
of the service of general economic interest cannot
affecting the development of trade to an extent
therefore predate 27 September 1991. In other words,
contrary to the Union’s interests.
it is only as from the creation of the aid measure at issue
(the brokerage commission) that account can be taken of
the costs and revenues connected with the performance
of the general economic interest service financed by that
aid. The Commission considers in conclusion that its
extension Decision was inconsistent in limiting the aid
(98) The
Commission
examines,
therefore,
below
whether
the
measure to the brokerage commission created on
principles of necessity and proportionality have in fact
27 September 1991 while continuing to take into
been respected, that is to say, whether the amount of the
account the net revenue from Livret bleu accounts
compensation which the brokerage commission
during the period from 1 January 1991 to
constitutes has not exceeded what is necessary to cover
27 September 1991.
the costs incurred in discharging the public service obli
gations, taking into account the relevant receipts and a
reasonable profit for discharging those obligations ( 53 ).
(103) In view of the fact that Crédit Mutuel is able to
(99) In
verifying
the
absence
of
any
overcompensation
(see
communicate the net results of general-interest uses
subsection 7.2.5), the Commission follows — for the
and non-earmarked uses only on an annual basis, the
period from 27 September 1991 (see subsection 7.2.1)
Commission considers that, for the year 1991, account
to 31 December 2005 — a global approach (see
must be taken only of the net results corresponding to
subsection 7.2.2). It takes account of all the advantages
the period from 27 September 1991 to 31 December
connected with the Livret bleu, without, however,
1991, based on the proportion between the number of
including a possible pull effect whose scope could not
relevant days and the net results for the whole of 1991,
be established (see subsection 7.2.3). A reasonable profit
i.e. 96/365. The net results for deposits centralised with
is taken into account (see subsection 7.2.4), including for
the CDC for the year 1991 can be taken into account in
deposits centralised with the CDC.
their entirety since, as explained in recital 101, such
centralisation was in fact introduced after
27 September 1991, with the result that, by definition,
no part of these results relates to the period from
1 January 1991 to 27 September 1991.
7.2.1. Beginning of the period considered (27 September
1991)
(100) In the extension Decision, the calculation of the net
results of the Livret bleu for the purpose of assessing
whether there was any overcompensation included the
results for the whole of 1991 ( 54 ). In other words, the
7.2.2. Global approach up to the end of 2005 and each year
net revenue from non-earmarked uses and general-
thereafter
interest uses was factored in as of 1 January 1991.
(104) In its extension Decision, the Commission advocated the
adoption of an annual approach to assessing the
( 52 ) See recital 223 of the Decision of 10 May 2007.
existence of any overcompensation. This approach
( 53 ) See point 14 of the 2005 Community framework.
( 54 ) See the tables in paragraphs 68, 69, 73, 75, 76 and 79 of the
stems from the 2005 Community framework and
extension Decision.
represents a change compared with its previous

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Union L
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practice. When, prior to the adoption of the 2005
whether the undertaking had not been overcompensated
Community framework, the Commission had to assess
for the performance of the public-service task, it followed
the existence of any overcompensation, it followed an
a ‘global’ approach (see recital 104) ( 58 ).
approach which may be described as ‘global’ whereby
the amounts relating to the years of overcompensation
could, without limit, be offset by the amounts for the
years of undercompensation ( 55 ).
(108) In the global approach, the net results for each year,
cumulated year on year, are discounted by applying the
(105) Pursuant to point 26 of the 2005 Community
reference rate for France on 1 January of each year (
framework, the Commission will apply the framework’s

59 ).
provisions to non-notified aid if the aid was granted after
publication of the framework in the Official Journal of the
European Union and the provisions in force at the time
the aid was granted, in all other cases. The aid at issue
was granted annually ( 56 ) and was not notified. The 2005
Community framework was published in the Official
Journal of the European Union on 29 November 2005. It
is therefore necessary to apply the rules in force at the
7.2.3. Advantages taken into account
time the aid was granted with respect to the period
before 2006 and the 2005 Community framework
(109) According to the first sentence of point 17 of the 2005
with respect to the period from 1 January 2006 to the
Community framework, ‘The revenue to be taken into
measure’s termination on 31 December 2008.
account must include at least the entire revenue earned
from the service of general economic interest’. When
checking for the absence of any overcompensation, it is
necessary, therefore, to take account of the net result of
general-interest uses and non-earmarked uses during the
investigation period. The Commission considers that
these results are revenue introduced by France as from
(106) The 2005 Community framework advocates an ‘annual’
approach inasmuch as the calculation of any overcom
27 September 1991 in favour of Crédit Mutuel for its
pensation has to be done annually without it being
performing the general-interest service of financing social
possible to carry forward the amount of any annual over
housing through the CDC. These uses are, in cost
compensation to the next year, save where that amount
accounting, backed by a specific resource, the deposits
does not exceed 10 % of the amount of annual compen
gathered thanks to the distribution of the Livret bleu. In
sation (
competitive market conditions (without the special right

57 ).
to distribute a tax-free savings product), Crédit Mutuel
might not have been able to procure that resource at
the same cost, with the result that the corresponding
uses and resources must be taken into account in the
overall structure of the Livret bleu system. Moreover,
France has itself confirmed the existence of a link
(107) On the other hand, prior to the adoption of the 2005
between these uses, the Livret bleu and the task of
Community framework, where the Commission checked
financing social housing by redirecting the amounts
relating to these uses to the CDC as from 1991 ( 60 ). In
( 55 ) This mostly involved cases in which the undertakings entrusted
other words, when on 27 September 1991 it entrusted
with a public service task operated in the audiovisual sector (see,
to Crédit Mutuel the general economic interest service
for example, the Commission Decision 2004/838/EC of
consisting in gathering deposits centralised with the
10 December 2003 on State aid implemented by France for
CDC and intended for financing social housing, France
France 2 and France 3 (OJ L 361, 8.12.2004, p. 21)).
confirmed the entrustment to Crédit Mutuel of the
( 56 ) See footnote 46.
distribution of the Livret bleu. The profit resulting from
( 57 ) See point 21 of the 2005 Community framework. In answer to
Crédit Mutuel’s argument (see footnote 26) in favour of application
the use of funds deposited on the latter must therefore be
of the global approach under the second and third sentences of
considered as from that date to be revenue granted to
point 21 of the 2005 Community framework, according to which,
Crédit Mutuel for the provision of the service of general
where the service of general economic interest has costs that vary
economic interest.
significantly from year to year, overcompensation in excess of 10 %
in certain years may, exceptionally, prove necessary, the
Commission would point out that, according to the fourth
( 58 ) See, for example, the Commission Decision 2004/838/EC of
sentence of point 21, such ‘exceptional’ overcompensation ‘[…]
10 December 2003 on State aid implemented by France for
necessary for the operation of the service of general economic
France 2 and France 3 (OJ L 361, 8.12.2004, p. 21).
interest’ must be justified by the Member State ‘in the notification
( 59 ) See the Commission notice on current State aid recovery interest
to the Commission’ (underlining added). However, the measure at
rates and reference/discount rates for 25 Member States applicable
issue was not notified to the Commission and the Commission
as from 1 January 2007 (OJ C 317, 23.12.2006, p. 2). See also the
considers that Crédit Mutuel has not been in a highly specific
following webpage: http://ec.europa.eu/competition/state_aid/
situation justifying the authorisation, by way of exception, for
legislation/reference_rates.html
certain specific years, of overcompensation in excess of 10 %.
( 60 ) See recital 39.

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(110) The complainants and other authorities or bodies (the
level of remuneration of 1 %. Moreover, this first
Competition Council and reports by parliamentarians
argument does not demonstrate the pull effect but
or research organisations ( 61 ) consider that the exclusive
seems to amount to alleging that Crédit Mutuel was over
right to distribute the Livret bleu has had a ‘pull effect’ by
compensated, which, as will be shown, is not the case.
enabling Crédit Mutuel to attract and retain customers to
There is no evidence to suggest that the pull effect
whom it has sold banking products other than the Livret
corresponds to the difference between the brokerage
bleu. In its extension Decision the Commission did not
commission and a hypothetical lower commission
rule out the possibility that the Livret bleu may have
which Crédit Mutuel’s competitors proposed to charge
generated indirect revenue via the pull effect ( 62 ), but it
in return for their distributing the Livret bleu.
pointed out that such revenue had so far not been
quantified ( 63 ).
(115) According to the second method proposed by the
(111) Following its investigation into this case, the Commission
complainants, the pull effect would be measured by
would observe that, while the existence of a pull effect
reference to the growth in Crédit Mutuel’s market
cannot be ruled out, the data it has collected do not
share. Such an evaluation method cannot be adopted
enable it in this case to quantify the potential pull
as it is based on the assumption that the gains in
effect in a sufficiently precise manner.
market share are due solely to the Livret bleu, whereas
there is no objective basis for this assumption.
(112) The documents submitted by the complainants presume
the existence of pull effects but do not formally prove
(116) The third evaluation of the exclusive distribution right is
their existence and succeed even less in precisely deter
based on the tax revenue loss due to the tax exemption
mining the financial impact of such effects.
allowed under the Livret bleu. If Crédit Mutuel had wished
to distribute a savings account without any tax
exemption by offering, irrespective of the saver’s tax
position, the same net yield as the Livret bleu, it would
in fact have incurred an opportunity cost equal to the
amount of the notional tax (potentially) payable by the
(113) As for the studies by the Glais consultancy (see recitals
saver. According to the complainants, the cumulated tax
52 and 53), the Commission would observe that Crédit
advantage of the order of FRF 4,5 billion over the period
Mutuel is right to assert that these statistical analyses
1991-97 must be considered as having accrued to Crédit
provide no certain proof of a quantifiable pull effect.
Mutuel advantages worth the same amount. This
reasoning cannot be accepted as Crédit Mutuel would
probably not have distributed the Livret bleu under the
same conditions if it had had to bear the full cost of the
tax exemption, which, besides, benefits members directly.
(114) Three subjective evaluations have been proposed in the
complainants’ comments. First of all, in view of the fact
that other banks had offered to distribute the Livret bleu
in return for a 1 % commission, the complainants
proposed an approximate order of magnitude for the
pull effect by calculating the difference between the
(117) The advantages in question, if any, are difficult to prove
level of commission charged by Crédit Mutuel and this
and to quantify. The direct financial advantage deriving
rate of 1
%, i.e. 0,3
%, which corresponds to
from the operation of the Livret bleu is directly
approximately FRF 300 million a year. However, there
measurable from the Livret bleu’s accounts. However,
is no evidence to suggest that, during the period
the financial advantage arising from the sale of other
considered, Crédit Mutuel’s competitors could have
products or services to customers who remained loyal
performed this task under the same conditions at this
because of the Livret bleu would be observable in the
cost accounts of these other products if it were
possible to distinguish immediately between what was
( 61 ) See, for example, a Competition Council opinion (opinion No 96-
A-12 of 17 September 1996, p. 8), an information report by
sold to customers who remained because of, or were
Senator Alain Lambert (report No 52 of 30 October 1996, p. 72)
attracted by, the Livret bleu, and what was sold to
and a study by Nathalie Daley of the industrial economics centre
customers who came to Crédit Mutuel for other
CERNA (La banque de détail en France: de l’intermédiation aux services,
reasons, which is not the case. For these reasons, the
February 2001, p. 9).
Commission’s consultant was unable to evaluate the
( 62 ) See paragraphs 52 and 53 of the extension Decision.
potential pull effect using the accounting method
( 63 ) See paragraph 67 of the extension Decision, ‘Les éventuels résultats
liés à la distribution exclusive du Livret bleu n’ont pu être
applied to assess all the direct financial advantages
quantifiés’.
deriving from the Livret bleu.

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European
Union L
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(118) The more sophisticated attempts by the Commission’s
considered equal to the exposure vis-à-vis the State (the
consultant at evaluating the pull effect were unsuccessful.
French Republic), i.e. a risk weighting equal to zero and
Consequently, the Commission considers that it cannot
hence requiring no capital.
take into account the advantage, if any, due to the pull
effect in the calculation of whether or not there is any
overcompensation.
(122) If it were to be assumed that no reasonable profit is to be
derived from deposits centralised with the CDC, this
would mean that the total reasonable profit (that
7.2.4. Calculation of a reasonable profit
relating to general-interest uses and non-earmarked uses
and that relating to deposits centralised with the CDC)
(119) When checking for the absence of overcompensation of
decreased from 1991 to 1999, disappearing altogether
an undertaking entrusted with a service of general
from 2000 following the centralisation with the CDC
economic interest, account must be taken of a reasonable
of the entire stock of deposits in 1999 ( 68 ).
profit ( 64 ). The 2005 Community framework states that
‘ “reasonable profit” should be taken to mean a rate of
return on own capital that takes account of the risk, or
absence of risk, incurred by the undertaking […] This
rate must normally not exceed the average rate for the
sector concerned in recent years’ ( 65 ).
(123) In their letter of 1 September 2006 presenting their
comments in reply to the extension Decision, the
French authorities confirmed that the funds centralised
with the CDC consumed no regulatory capital. Never
theless, according to the French authorities, ‘in view of
the lack of relevance of the application of the European
(120) The Commission considered in the extension
solvency ratio from the time of full centralisation with
Decision ( 66 ) that there should be applied to general-
the CDC in 1999, Crédit Mutuel [proposes to] include, in
interest uses and non-earmarked uses a reasonable
order to calculate the reasonable profit in the Livret bleu,
profit amounting to on average 6 % of the capital
a cost of capital obtained by reference to that of the
devoted to those uses. This rate, which varies from
other savings products and other resources’. The
year to year and averages 6 %, corresponds to the rate
Commission does not consider such an approach to be
of return originally advocated by Crédit Mutuel: Crédit
satisfactory as it results in applying artificially to the
Mutuel had taken as the cost of capital the amount of the
resources centralised with the CDC a regulatory capital
dividends actually distributed during the year in question.
need dependent on the average capital need of Crédit
In this Decision, as regards the taking into account of a
Mutuel’s other assets, which are completely independent
reasonable profit when checking for the absence of any
of the Livret bleu.
overcompensation, the Commission does not deviate, in
the case of non-earmarked uses and general-interest uses,
from the approach already followed in the extension
Decision, described in Section 7.2.5.
(124) The absence of a regulatory capital need illustrates the
absence of a credit loss risk, which is the case with the
deposits centralised with the CDC. The activity of
gathering deposits on behalf of the CDC likewise does
(121) In its extension Decision ( 67 ), the Commission
considered, however, that it did not have to apply this
not present a liquidity risk (apart from the intra-month
reasonable profit to deposits centralised with the CDC in
risk) or a risk of maturity transformation, since the
so far as they have no cost of capital from the point of
amount made over to the CDC is adjusted each month
view of the prudential rules, such deposits being not so
in the light of the trend in deposits and the interest paid
much invested by Crédit Mutuel as simply assigned to the
by the CDC is immediately transferred to depositors. It is
CDC. From a prudential point of view, the credit risk
therefore certain that this general economic interest
connected with deposits centralised with the CDC is
service presents a low level of risk to Crédit Mutuel.
However, some other types of risk, such as the oper
ational risk, the economic risk (the risk that the level
( 64 ) See paragraph 48 of the extension Decision and point 14 of the
of remuneration will not cover the costs incurred), the
2005 Community framework, which provides that: ‘The amount of
legal risk and the risk to reputation, do exist. Moreover,
compensation may not exceed what is necessary to cover the costs
other banking activities such as the distribution of
incurred in discharging the public service obligations, taking into
account the relevant receipts and reasonable profit for discharging
mutualised funds, asset management or the selling of
those obligations’ (underling added).
financial products (such as shares and bonds) do not
( 65 ) See point 18 of the 2005 Community framework.
consume any regulatory capital but are nonetheless
( 66 ) See Section 2 of Annex 1 to the extension Decision, paragraphs
highly profitable. There is therefore no direct link
124 to 137.
( 67 ) See Section 2 of Annex 1 to the extension Decision, paragraph
132.
( 68 ) See recitals 39 and 40.

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between the consumption of regulatory capital —
evaluate whether, with respect to deposits centralised
calculated on the basis of prudential rules the specific
with the CDC, a given profit may be considered
aim of which is in no way to evaluate the profitability
reasonable. The two indicators are:
of an activity — and the profit expected from an activity.
(a) the profit margin of the French banking sector, that
(125) In the present case, while the Commission authorises
is, the profit before tax divided by turnover (in the
Crédit mutuel to earn a reasonable profit in respect of
present case, the banks’ turnover is represented by
that part of deposits which is centralised with the CDC, it
their operating results). Using the French banking
acknowledges that determining the appropriate level of
sector’s figures for the period considered (from
that profit is an exercise which involves a complex
27 September 1991 to the end of 2008), the profit
economic assessment. The Livret bleu is an atypical
margin is on average 23 % a year;
banking product with the mixed characteristics of a
savings product and a current account, the gathered
deposits of which are centralised with a public authority.
(b) the rate of return of the French banking sector, that
There are therefore no directly comparable products as
is, the profit before tax divided by assets. The average
such which might give an indication of a reasonable
annual rate of return throughout the period
profit for a similar activity.
considered is 45 basis points (0,45 %).
(126) For want of a product sufficiently comparable to the
(127) The following table ( 69 ) shows the profit margin and the
Livret bleu, the Commission considers that it can in the
rate of return of the French banking sector for the period
present case use two indicators making it possible to
1993-2008 (pre-1993 data are unavailable):
( 69 ) The data in the table are the result of calculations based on Banking
Commission data: http://www.banquedefrance.fr/fr/supervi/analyses_
comparatives/analyses_comparatives.htm

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24.11.2011 Off
1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
(**)
Profit before tax (*) 15,2 2,7 25,0 41,0 67,5 14,4 19,8 22,5 24,6 23,5 23,4 29,6 31,3 46,2 34,3 –
4,4
Operating profit (*) 362,4 335,4 345,6 356,1 375,3 60,8 64,6 70,5 74,9 77,0 80,6 83,5 89,5 104,1 98,0 79,1
EN

Profit margin 4,2
% 0,8
% 7,2
% 11,5
% 18
% 23,7
% 30,6
% 31,9
% 32,8
% 30,6
% 29,0
% 35,5
% 35,0
% 44,4
% 35,1
% –
5,6
%
Average profit margin
22,8 %
Assets (*) Unavailable 16
333 17
216 18
291 19
894 3
052 3
394 3
452 3
783 3
793 3
960 4
390 5
275 6
041 7
061 7
699
Rate of return Unavailable 0,02
% 0,15
% 0,22
% 0,34
% 0,47
% 0,58
% 0,65
% 0,65
% 0,62
% 0,59
% 0,68
% 0,59
% 0,77
% 0,49
% –
0,05
%
icial
Jour
Average rate of return
0,45 %
nal
(*) The amounts are in billions of French francs before 1998 and billions of euro thereafter.
of
(**) The 2008 data are estimates.
the
European
Union
L
309/41

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L 309/42
EN
Official Journal of the European Union
24.11.2011
(128) To calculate Crédit Mutuel’s profit margin and rate of
7.2.5. Verification of the absence of overcompensation
return in respect of the activity of gathering deposits
centralised with the CDC, the Commission uses the
(132) On the basis of the above considerations the
following values:
Commission has carried out a verification — set out in
the table below — of the absence of overcompensation
in accordance with the method outlined in subsections
7.2.1 to 7.2.4 ( 70 ):
(a) for the profit margin denominator, the revenue
(EUR million)
earned from the activity of gathering deposits
centralised with the CDC, that is to say, the annual
COMPEN
SATION
OVER- OR UNDERCOMPENSATION
amount of the brokerage commission;
(Annual)
Global
Annual
Year
brokerage
approach (*)
approach (**)
commission
(up to the end
(from 2006)
(b) for the rate of return denominator, the deposits
of 2005)
transferred to the CDC;
1991 (from
1,5 43,8
27.9.1991
to
(c) for the numerator, that is to say, the profit before
31.12.1991)
tax, the Commission considers that, by taking into
account as a reasonable profit a margin of 4,2 % on
1992 9,1 125,1
the activity of gathering deposits centralised with the
CDC, that is to say, a pre-tax profit amounting to
4,2 % of the brokerage commission received from the
1993 16,8 184,0
CDC, Crédit Mutuel does not receive any overcom
pensation (see the table in recital 132).
1994 36,6 127,3
(129) As regards the second indicator (the rate of return), the
1995 59,5 114,5
Commission would point out that, if a rate of return of 5
basis points is taken as a reasonable profit from the
activity of gathering deposits centralised with the CDC,
1996 74,7 107,8
that is to say, if account is taken of a pre-tax profit
Not applicable
equivalent to 0,05 % of the total amount of deposits
(the global
transferred to the CDC, then Crédit Mutuel did not
1997 82,3 88,4
approach was
receive any overcompensation for administering the
applied until
Livret bleu during the period considered.
2005, see
1998 118,9 92,0
subsection
7.2.2)
1999 188,9 98,3
(130) According to the 2005 Community framework, the
reasonable profit must not exceed the average rate for
the sector concerned during the relevant period. A profit
2000 188,2 106,3
margin of 4,2 % represents less than one fifth of the
average profit margin of the banking sector (22,8 %).
Since, as was stated in recital 124, the activity of
2001 181,9 91,3
gathering deposits centralised with the CDC is a low-
risk, and hence low-return, activity, the Commission
considers that a profit margin of 4,2 % is not manifestly
2002 187,8 76,3
excessive and may be deemed in this case to be a
reasonable profit.
2003 197,7 61,2
2004 204,4 45,7
(131) Similarly, the Commission considers that a profit of 5
basis points for deposits centralised with the CDC is
reasonable in the light of the average return of 45
2005 196,7 15,0
basis points of the French banking sector for the
relevant period and represents a low, conservative
threshold for what may be considered a profit which is
2006 […] –
39,1
not manifestly unreasonable in this case. Moreover, this
low profit level reflects appropriately the level of risk
incurred by Crédit Mutuel on its activity of gathering
( 70 ) The following reference rates are used for the years 1992 to 2008:
deposits for the CDC, which, as indicated in recital
10,61; 11; 8,93; 7,94; 8,22; 7,01; 5,83; 4,77; 5,7; 6,33; 5,06; 4,8;
124, is low.
4,43; 4,08; 3,7; 4,62; 5,19.

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EN
24.11.2011 Official
Journal
of
the
European
Union L
309/43
(EUR million)
was entrusted to it from 27 September 1991 until the
COMPEN
end of 2008.
SATION
OVER- OR UNDERCOMPENSATION
(Annual)
Global
Annual
8. CONCLUSION
Year
brokerage
approach (*)
approach (**)
commission
(up to the end
of 2005)
(from 2006)
(135) The Commission finds that France has unlawfully imple
mented the measure at issue in infringement of
2007 […] –
24,3
Article 108(3) TFEU. However, the aid may be considered
compatible with the internal market under Article 106(2)
2008 […] –
6,1
TFEU, inasmuch as the compensation paid by the State
(*) Net cumulative, discounted result, in EUR million, taking into
has not exceeded what is necessary to cover the costs
account brokerage commission, net results (costs minus revenue),
occasioned by the discharge of public service obligations,
deposits centralised with the CDC, non-earmarked uses and
having regard to the revenues relating thereto and a
general-interest uses, and introducing a reasonable profit of 5 basis
points for deposits centralised with the CDC together with a
reasonable profit for discharging those obligations,
reasonable profit amounting on average to 6 % of the own capital
allocated to general-interest uses and to non-earmarked uses (see
subsections 7.2.1 to 7.2.4).
HAS ADOPTED THIS DECISION:
(**) Net non-cumulative, non-discounted result, in EUR million, taking
into account brokerage commission, net results (costs minus
revenue), deposits centralised with the CDC, non-earmarked uses
and general-interest uses, and introducing a reasonable profit of 5
Article 1
basis points for deposits centralised with the CDC together with a
reasonable profit amounting on average to 6 % of the own capital
The State aid implemented by France in favour of Crédit Mutuel
allocated to general-interest uses and to non-earmarked uses (see
on the basis of the Decree of 27 September 1991 defining the
subsections 7.2.1 to 7.2.4).
general-interest uses of Crédit Mutuel is compatible with the
internal market.
(133) It can be seen that the overcompensation at the end of
2005 (EUR 15 million) is less than 10 % of the compen
Article 2
sation for 2005 (EUR 196,7 million). By virtue of point
21 of the 2005 framework this amount may be carried
This Decision is addressed to the French Republic.
forward to the next year. The final result is undercom
pensation of EUR – 6,1 million at the end of 2008 for
Done at Brussels, 24 May 2011.
the whole of the period considered.
For the Commission
(134) The Commission can therefore conclude that the
brokerage commission has not overcompensated Crédit
Joaquín ALMUNIA
Mutuel for the service of general economic interest which
Vice-President

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