(80) However, the risk margins applied should be in line with the Communication from the Commission on the revision of the method for setting the reference and discount rates (‘Communication on reference and discount rates’)(38). Given that the company’s rating is based on the existence of the risk shield and there is agreement that the company is in difficulty (see recital 96), the Commission must apply the margins given for companies in difficulty. In cases of high collateralisation, this margin is 400 bps(39). Hence it will be assumed that the advantage of the first line of EUR [> 1] billion corresponds to an average [> 300] bps for a period of ten months (i.e. from January to October 2008). The second line of July 2008 was granted, although not yet drawn, and thus did resulted in an advantage of [> 200] bps for a period of nine months (i.e. from February to October 2008). The aid involved in this line would therefore amounted to EUR […] million for the first line and to EUR […] million for the second, a total EUR […] million.

(81) As regards the liquidity facilities provided by [a regional bank] and [another regional bank], the Commission has no indication that the terms agreed did not reflect market considerations and would thus confer an advantage on IKB. Furthermore, the circumstances in which the facilities were granted, in particular the fact that interbank business is part of a bank’s daily and standard operations, the concomitant participation on a large scale by private operators, and the fact that [a regional bank] and [another regional bank] did not provide these facilities under the direction of the State, leads the Commission to the finding that there is no indication that these transactions are imputable to the State(40). The Commission has therefore no reason to conclude that these facilities imply the granting of State aid.

(82) The Commission also assessed whether the sale of IKB to Lone Star involved elements of State aid. Firstly, this could be the case if IKB had been sold below market price to Lone Star. However, on the basis of a wide range of information provided by Germany in this respect (see section 2.5) the Commission has no indication that the price paid by Lone Star is not the highest offer achieved in an open, transparent, non-discriminatory and non-conditional sale process. Given that this is the decisive criterion under the Commission’s rules on privatisation(41), it can conclude that the sale does not involve aid in favour of Lone Star.

(83) Second, the Commission assessed whether the sale implied some additional aid to IKB, which would be the case if liquidation would have been less costly for KfW than selling IKB, a criterion sometimes referred to as the market-economy vendor test. The Commission notes that the sale results not only in a sale price but also in some additional contributions by KfW, which need to be considered as part of the sale. These are (1) the maintenance of the two liquidity facilities of EUR [> 2,5] billion, (2) the senior loan by KfW for the refinancing of SIP 2, (3) the transfer of SIP 1 to KfW prior to the sale and (4) the assumption of the risk of liability […]. It is clear that KfW has taken these measures in order to allow a sale and free itself from as many assets as possible within as short period as possible. Although at first sight KfW obtained a positive sale price, the sale was accompanied by measures which were capable of reducing the price to a negative price.

(84) Nor can the fact be ignored that these measures were taken in the context of the restructuring, and thus in the context of the first three support measures. Therefore, the Commission cannot view them in isolation from the first three measures and once more does not see how KfW can revert to a market-economy investor argument(42).