It is well known that the European Courts’ rulings in the Tercas case (C-425/19; T-98/16, T-196/16, T-198/16) have completely reversed the approach previously adopted by the European institutions regarding the preventive and alternative measures that DGSs may implement. The current interest in this topic as well as the Directive 2026/804 and 2026/806 represent a long-term effect of those judgments.
However, not even the CMDI Reform has resolved the issue of the classification of preventive and alternative measures as State aid, when DGSs are public entities, as highlighted in the recent paper by Irene Mecatti (Burden-sharing and preventive interventions of Deposit Guarantee Schemes as State Aid: “questo matrimonio non s’ha da fare!”, EBI Working Paper Series 2026 – no. 209), preventive and alternative measures continue to be defined as “extraordinary public financial support”, even though they may now be granted – still “on an exceptional basis” -, provided that this public support “complies with the conditions and requirements established in the Union State aid framework” (Article 32c(1)(b)(c) BRRDIII).
The reform thus resolves the “catch-22” regulatory situation in which, if a DGS intervention is classified as State aid, it constitutes public financial support under the BRRD; and, as it is public financial support, the bank is automatically deemed to be failing or likely to fail (FOLTF). The reform achieves this, however, only by introducing a new exceptional rule into the framework, which remains otherwise unchanged.
The reform fails to take into account the fact that DGSs, regardless of whether they are private or public, can decide independently on the measures to be taken, and it does not recognise the role of preventive and alternative measures, funded by private resources: a role that should lead to the conclusion that these measures are in any case outside the scope of State aid rules.
With regard to State aid, a more detailed analysis would require the “market economy investor principle” (MEIP).
Given that DGS funds are funded by private banks to rescue those among them that may need it, it would be necessary to consider not only the future profitability of the measures, but also the behaviour of an entity with mutualistic aims or, in any case, of a private economic operator who, in a wholly rational manner, seeks to minimise the costs and risks borne by him (as the banks participating in the DGS do). Therefore, if we want to apply the MEIP, we must analyse a truly comparable situation.
Avvocata Olina Capolino
