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Previous State aid and Subsequent Financial Assistance

The FIH Judgment and the Future of the MEOP

DOI https://doi.org/10.21552/estal/2019/1/5

Jan Bonhage


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.

Dr Jan D Bonhage, LLM (NYU), is a partner at Hengeler Mueller Partnerschaft von Rechtsanwälten mbB. A summary of this paper was presented at the conference ‘State Aid Control: Where Law and Economics Meet’, organized by Prof. Dr. Caroline Buts and Lexxion Publisher, in cooperation with the Vrije Universiteit Brussel and E.CA Economics. Brussels, 5 October 2018.

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