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Clarifying the Applicability of the Private Investor Test ∙ Case T-747/15 EDF v Commission ∙ Annotation  by José Antonio Rodríguez Miguez

Annotation on the Judgment of the General Court (Third Chamber) of 16 January 2018 in Case T-747/15 EDF v Commission.

José Antonio Rodríguez Miguez

DOI https://doi.org/10.21552/estal/2018/2/13

Keywords: EDF, Private investor test

This is an interesting judgement on the applicability of the Market Economy Investor Principle (MEIP). It confirms a second Decision which the EC adopted in 2015 once that its first Decision on the same case was annulled by the GC in a previous judgement, later confirmed by the ECJ in 2012. The main reason of the initial annulment was that the fiscal form of a measure did not exclude the possibility of applying the MEIP to it. France considered that, under the form of a tax exemption, the measure was materially a recapitalization and the EC had simply to look at whether it was materially in line with MEIP or not. The new judgement, however, considers that the EC had still to examine first whether the MEIP was ‘applicable’ at all to this tax exemption (since this, according to the GC, was not decided in the previous judgements).  For the GC the ‘applicability’ of MEIP depended on whether France treated at the time that measure as an ‘investment’ by adopting an ex ante evaluation and business plan. The burden of proving this was for the Member State but the EC had to examine the evidence brought to the procedure. Since the GC considered that this was not proved here, there was no legal need to examine whether the MEIP was materially fulfilled or not.
Keywords: State aid; Aid granted by the French authorities to EDF; Reclassification, as a capital contribution, of accounting provisions created free of tax for the renewal of the high-voltage transmission network; Decision declaring the aid to be incompatible with the internal market; Authority of res judicata; Private investor test.

Dr José Antonio Rodríguez Miguez, PhD Law, Director of Investigation at the Regional Competition Authority of Galicia, in Spain (Comisión Gallega de la Competencia), in the Galician Consumer and Competition Institute. The opinions reflected in this comment are of my exclusive and personal responsibility.


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