Cees Dekker, Ekram Belhadj

European State Aid Law Quarterly, Jahrgang 22 (2023), Ausgabe 1, Seite 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.

Jakub Kociubiński

European State Aid Law Quarterly, Jahrgang 22 (2023), Ausgabe 1, Seite 4 - 16

Even though the economic situation remains precarious, the Covid-19 economic shock has subsided enough to allow us to take stock of the European Union (EU) responses to the pandemic and appraise them in the context of emerging trends. The author argues that there are early precursors of such trends – referred to as the ‘Three Poisons’ – observable in interpretive and legislative approaches to Member States’ aid measures. These are: the easier justification of extended lifelines without adequately recognising the need for adaptation to new market conditions, and moral hazard associated with subsidy dependence; the blurring of lines between what is theoretically rational and what is obtainable under crisis market conditions thereby distorting the results of the Market Economy Operator Test; the increasing reliance on ad hoc frameworks, and highly situation-specific interpretations potentially eroding the pre-existing acquis. In this context, the purpose of this article is to identify post-Covid trends which negatively affect or might affect the long-term effectiveness of the EU State aid control system. Based on this, to assess whether these ‘poisons’ can and should be opposed. This analysis will conclude with de lege lata and de lege ferenda recommendations. Keywords: COVID-19; market economy operator test; MEOP; moral hazard; ad hoc regulation; common assessment criteria

Nicole Robins, Laura Puglisi

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 1, Seite 74 - 86

Economic and financial analysis plays an increasing role in State aid assessments. It is often used to assess whether one of the criteria for State aid to exist is met − namely, whether the State’s intervention confers an economic advantage − as well as specific aspects of whether any aid is compatible with the relevant State aid rules. To determine whether a public measure confers an economic advantage on the beneficiary, the market economy operator principle (MEOP) test is often applied. The rationale behind the test is to assess whether the State is acting in the manner of a private investor. In the aviation sector, the MEOP is applied at various levels, ranging from funding provided by the State to airport owners or operators, to the relationship between publicly owned airports (or those that have received State aid) and airlines. This article provides an overview of the different levels at which the MEOP test is applied in the aviation sector, and its underlying economic and financial principles. Throughout the article, examples are provided to demonstrate how the MEOP test has been applied in practice. Keywords: market economy operator principle; MEOP; market economy investor principle; MEIP; benchmarking; pari passu; profitability analysis

Doortje Ninck Blok, Gerard van der Wal

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 2, Seite 284 - 291

The General Court handed down a judgement in 2020 in which it annulled the Commission’s Decision regarding State aid granted to Valencia Club de Fútbol through a €75 million (regional) government guarantee. The Commission qualified the guarantee granted by a financial entity under the supervision of the Regional Government of Valencia, intended to cover the bank loans to Fundación Valencia to enable Fundación Valencia to acquire shares in Valencia Club de Fútbol (the beneficiary according to the Commission and General Court), as unlawful state aid in the meaning of Article 107(1) TFEU. This annotation elaborates on two pleas brought forward by Valencia Club de Fútbol: (i) manifest errors of assessment in the characterisation of an advantage and (ii) manifest errors of assessment when calculating the amount of aid. The General Court considered that the Commission made an error of assessment when applying the market economy operator principle, where the Commission did not carry out an overall assessment. Furthermore, the Commission did not sufficiently support the finding that there was no market price for a similar non-guaranteed loan. In their conclusion, the annotators address the application of the Guarantee Notice by the Commission.

Caroline Buts, Malgorzata Agnieszka Cyndecka, José Luis Buendía

European State Aid Law Quarterly, Jahrgang 20 (2021), Ausgabe 3, Seite 397 - 426

Marianne Clayton, Maria Segura, Lara Manuel

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 3, Seite 372 - 377

On 13 May 2020, the General Court of the EU rendered three judgments on the actions brought by Volotea, easyJet and Germanwings seeking the annulment of Commission Decision SA.33983. In this Decision, the Commission had inter alia concluded that the aid scheme ‘Compensation to Sardinian airports for public service obligations’ entailed the grant of incompatible aid to several airlines that had concluded commercial agreements with airport operators for the development of the island as a tourist destination. The General Court analysed in these judgments each of the criteria of the notion of State aid on its own merits and provided particularly worth-noting reasoning on concepts such as imputability, indirect advantage, the application of the MEOP or the definition of aid scheme.

Matthias Nordmann

European State Aid Law Quarterly, Jahrgang 19 (2020), Ausgabe 1, Seite 99 - 100

Anne Louise Bengt Jespersen

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 4, Seite 458 - 469

The Market Economy Operator Principle (MEOP) is an essential tool in State aid law when determining whether a specific State measure confers an economic advantage within the meaning of Article 107(1) TFEU. Despite the many clarifications in the jurisprudence over the years, the applicability of the MEOP to specific economic transactions and the assessment of the economic rationality of a State measure continue to be subject to debate before the Commission and the EU Courts. Since the ruling of the Court of Justice in EDF, a recurring question in this debate has been the apportioning of the burden of proof in cases where the MEOP is invoked by the Member State and/or the alleged aid beneficiary. In more recent cases, the EU Courts have further developed the principles concerning the apportioning of the burden of proof as well as the standard of proof required on the part of the Commission and the Member States, respectively. This article analyses the approach of the Commission and the EU Courts with respect to the burden of proof in MEOP Cases prior to and after EDF, in SACE, Larko and Frucona Košice. Furthermore, the article reflects on the latest developments in the EU Courts’ Case law and points to a potential ambiguity therein. Keywords: MEOP; Burden of proof; Requirement of evidence ex ante; Allocation of burden of proof.

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 3, Seite 313 - 338

Jan Bonhage

European State Aid Law Quarterly, Jahrgang 18 (2019), Ausgabe 1, Seite 29 - 36

Taking into account previous State aid in the MEOP assessment requires an in-depth analysis of the specifics of the individual case. The mere fact that economic interests derive from previous State aid does not rule out their relevance in the assessment of the economic rationality of further financial measures. State aid aims at a comprehensive analysis of all relevant factors at the time of the funding decision. Both the purpose of the MEOP and previous European case law support such comprehensive substantive approach in the MEOP State aid assessment of subsequent financial measures. In light of the rationale of the MEOP and previous decisions, the CJEU’s rather formal approach in the FIH case is not convincing. The comprehensive substantive approach of ING Groep, also concerning the relevance of previous State aid in the assessment of subsequent public measures, more adequately reflects all aspects that a private investor would take into account in a comparable situation. Keywords: FIH; ING Groep; Land Burgenland; MEOP; previous State aid; subsequent financial measures; substantive approach; comprehensive assessment; formal approach; public authority.