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The Government as Purchaser: The MEOP Still Requires a Thorough Examination of All Relevant Circumstances · Joined Cases C‑331/20 P and C‑343/20 P Volotea SA, and easyJet Airline Co. Ltd v European Commission · Annotation by Cees Dekker and Ekram Belhadj journal article

Annotation of the Judgment of the Court of Justice (Second Chamber) of 17 November 2022 in Joined Cases C‑331/20 P and C‑343/20 P Volotea SA, and easyJet Airline Co. Ltd v European Commission

Cees Dekker, Ekram Belhadj

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 95 - 100

Even where the government acts as the purchaser of services, an assessment of whether it has acted in accordance with the market economy operator principle requires an examination of all the relevant facts. The fact that the government acted through private companies, that the government pursued public policy objectives or that there was no tender procedure is not a reason to exclude the application of the market economy operator principle, the Court of Justice ruled in this case. The Court of Justice confirmed that the burden of proof as to whether the MEOP has been complied with and whether an advantage has been conferred on a company lies with the Commission.


The Status of Guidelines and Notices in Relation to the Application of Article 107(1) TFEU · Case C-211/20 P Valencia CF · Annotation by Cees Dekker journal article

Annotation of the Judgment of the Court of Justice (First Chamber) of 10 November 2022 in Case C‑211/20 P European Commission v Valencia Club de Fútbol SAD and Kingdom of Spain

Cees Dekker

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 193 - 198

It is settled case law that the Commission may adopt guidelines and notices setting out how it will exercise its discretion under the State aid rules. These guidelines and notices limit the way in which the Commission exercises its powers. In the present case, the Court of Justice also assumes that role in relation to the Commission's Guarantee Notice. However, unlike other cases in which the Union Courts have ruled on the role of the Guidelines, which concerned the Commission's application of Article 107(3) TFEU, the present case concerns the application of Article 107(1) TFEU. It is also settled case law that the Commission does not have a wide margin of discretion in the application of Article 107(1) TFEU, as the concept of aid is legal in nature. The question is, therefore, whether the Commission can impose restrictions on itself in its assessment under Article 107(1) TFEU. The Court of Justice ignores this question.



Another Turn in the MEOT-Burden of Proof Saga or Just Clarification of the MEOT-Stages? · Case C-148/19P BTB · Annotation by Cees Dekker journal article

Annotation on the Judgment of the Court of Justice of 7 May 2020 in Case C-148/19P BTB Holding Investments SA and Duferco Participations Holding SA v European Commission

Cees Dekker

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 346 - 351

When applying the market economy operator test the Commission is required to conduct the examination procedure for the measures in question carefully and impartially in order to take its final decision on the existence and, where applicable, incompatibility or illegality of the aid on the basis of information which is as complete and reliable as possible. This case, read in context with other recent case law and Commission decisions shows that the Commission still has to prove an actual advantage and, on the other hand, the Member State may submit ex-post (e)valuations that could prove that no advantage was conferred on the beneficiary.


Does a Tender Exclude an Article 107(1) Advantage? journal article

An Investigation into the Different Approaches by the Court Of Justice and the European Commission

Cees Dekker

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 387 - 398

This article examines for which type of transactions the use of a competing, transparent, non-discriminatory and unconditional tender procedure excludes the provision of an advantage and for which type of transactions this is not the case. In answering that question, it will be discussed whether the found distinction can be logically explained and criteria will be developed in accordance with which transactions can be distinguished for which a tender procedure will exclude State aid and for which it will not. Finally, suggestions will be given on how the framework of assessment could be made more consistent. Keywords: Advantage; Public Procurement; SGEI.


The ‘Effect on Trade between the Member States’ Criterion: Is It the Right Criterion by Which the Commission’s Workload Can Be Managed? journal article

Cees Dekker

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 154 - 163

On 29 April 2015, the European Commission decided on several notified measures, ruling that in none of those cases State aid was involved because, as the accompanying press release stated, they were unlikely to have a significant effect on trade between Member States. According to the press release, the decisions give additional guidance on how to determine which cases should be assessed by the Commission and which should not, to allow the Commission to focus on cases with a larger impact on the internal market. A couple of decisions in 2016 followed the same line of reasoning. This article discusses the question of how these decisions relate to the Court’s case law and the Commission’s own practice regarding the criterion ‘effect on trade between Member States’ laid down in Article 107(1) TFEU. It will also explore to what extent these decisions give actual clarity on the application of this criterion and if there is a better alternative to reduce the workload of the national authorities and the Commission. Keywords: Interstate Trade; De Minimis; Appreciable Effect; Notice on the Notion of State Aid.

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