L 6214 Official Journal of the European Union 6.3.2009 COMMISSION COMMISSION DECISION of 21 October 2008 on measure C 35/04 implemented by Hungary for Postabank and Takarékpénztir Rt./Erste Bank Hungary Nyrt. (notified under document number C(2008) 6023) (Only the Hungarian text is authentic) (Text with EEA relevance) (2009/174[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof, Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof, Having called on interested parties to submit their comments pursuant to the provisions cited above, Whereas: I. PROCEDURE By letter dated 23 September 2003, registered on 22 October 2003, the Commission was notified of State measures in favour of Postabank és Takarékpénztar Rt., now Erste Bank Hungary Nyrt., (Postabank’ or the ‘Bank’). By e-mail dated 23 January 2004, registered on 26 January 2004, the Hungarian authorities notified a series of additional measures adopted for Postabank. All measures were notified under the interim mechanism procedure, provided for in Annex IV.3 of the Act of Accession, which forms part of the Accession Treaty to the European Union (Accession Treaty). On 30 April 2004, the Hungarian authorities submitted, as a supplement to the notification, an irrevocable unilateral declaration by Postabank’s buyer, Erste Bank. The declaration, which was signed on 29 April 2004, provides for an overall cap on the payments payable by Hungary, as laid down in the share purchase agreement, to Postabank’s buyer in respect of threatened or unknown litigation claims and also narrows the scope of the definition of risk in connection with unknown claims. By a decision dated 20 October 2004, the Commission declared that most of the notified measures did not qualify as applicable after accession and it initiated the procedure in respect of one measure, which was the indemnity undertaking for unknown claims, given that there were serious doubts regarding its compatibility with the common market. The Commission Decision to initiate the procedure was published in the Official Journal of the European Union (!). The Commission invited interested parties to submit their comments. On 25 November 2004 the Hungarian authorities submitted their observations on the decision initiating the procedure and on 15 April 2005 Erste Bank also submitted its comments. The Commission received comments from interested parties and forwarded them to Hungary, which was given the opportunity to react. Hungary’s comments were received by letter dated 23 May 2005. In June, July and October 2005 and February, March, June, July and September 2008 the Commission also received various letters from the Hungarian authorities and Erste Bank in which they provided further explanations in support of the arguments set out in their submissions. II. BACKGROUND Postabank, which was established in 1988, used to operate as a retail-oriented bank providing a full range of banking services. By the end of 2002, Postabank was the seventh largest commercial bank in Hungary with a market share of about 3,7 % in terms of total assets. As Postabank was lacking sufficient capital, over a period of time the Hungarian authorities implemented a number of financial and regulatory measures with a view to restoring its capital adequacy ratio. In 1998 Postabank faced the risk of collapse and the Hungarian Government had to step in and save the Bank through a huge reca- pitalisation of HUF 152 billion (%), thus becoming a 99,9 % shareholder in the Bank. This bailout of Postabank was intended to prepare it for restructuring with a view to its privatisation within a short time. () O] C 68, 19.3.2005. (%) Exchange rate on 25 August 2008: EUR 1 = HUF 235,2.