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Is there a Need for a New Concept of ‘Ex-ante Creditor’?

Consequences of the FIH Holdings Judgment

DOI https://doi.org/10.21552/estal/2018/3/6

Phedon Nicolaides


The amount of State aid in a loan or guarantee is not necessarily equal to the principal of the loan or the guaranteed amount. Moreover, the liability of the State and the risk borne by the State depend on the rights or collateral that the State secures before it grants a loan or guarantee. For this reason, State aid law needs a third concept to describe the behaviour of the State apart from that of ‘public authority’ or ‘private investor’. That third concept is labelled here as ‘ex-ante creditor’. It applies to those sums over which the State can exercise a claim without expecting ex-ante to receive a profit. Past loans or guarantees that contain State aid should be ignored, as prescribed by the Court of Justice, only when the State has no prospect of recovering any amount that is due to it or when it has no claim to exercise against the borrower who is the aid recipient.
Keywords: Private investor; Private creditor; Loans; Guarantees; Past State aid.

Professor at the College of Europe and University of Maastricht.

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