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FIH Holding and FIH Erhvervsbank v European Commission  ∙ T‑386/14 ∙ Annotation by Małgorzata Agnieszka Cyndecka journal article

Annotation on the Judgment of the General Court (Sixth Chamber) of 15 September 2016 in Case T‑386/14 FIH Holding and FIH Erhvervsbank v European Commission

Małgorzata Agnieszka Cyndecka

European State Aid Law Quarterly, Volume 16 (2017), Issue 1, Page 86 - 92

Following the ING case in which the Court raised controversy by ruling on the applicability of the MEIP to an amendment to the repayment terms of aid, the FIH judgment may well become equally debatable. This time, however, the development and refinement of the MEIP may have possibly gone in the wrong direction. This annotation explains how the Commission and the GC dwelled on the fundamental distinction between the applicability and application of the MEIP, and analyses whether their conclusions were correct in light of the existing case law and the logic of the MEIP. Keywords: Market Economy Investor Principle; Applicability; Application.


The Applicability and Application of the Market Economy Investor Principle: Lessons Learnt from the Financial Crisis journal article

Małgorzata Agnieszka Cyndecka

European State Aid Law Quarterly, Volume 16 (2017), Issue 4, Page 512 - 526

One of the consequences of the financial crisis is a development and refinement of the Market Economy Investor Principle (MEIP). The MEIP is a well-established yardstick for determining whether a given State intervention confers an economic advantage upon a recipient undertaking, which it would not have obtained under normal market conditions. Although most State interventions in favour of financial institutions have aimed to remedy the systemic crisis, and thus amounted to aid, the MEIP has remained a vital instrument in applying Articles 107(1) TFEU and 61(1) EEA. As the relevant case law and decisional practice of the Commission and EFTA Surveillance Authority (ESA) demonstrate, the use of the MEIP under exceptional market conditions has raised some interesting issues. Those concern both its applicability and application. In particular, while ESA apparently excluded the applicability of the MEIP due to absence of ‘normal market conditions’, the Commission denied applying it to an amendment to repayment terms of aid. As regards the application of the MEIP, the ‘business-hostile’ conditions must be duly taken into account when assessing whether the State entered a given transaction on market terms. Keywords: MEIP; Application; Applicability; Financial Crisis.


The Applicability and Application of the Market Economy Investor Principle journal article

Małgorzata Agnieszka Cyndecka

European State Aid Law Quarterly, Volume 15 (2016), Issue 3, Page 381 - 399

This article depicts core points, including key questions, methodology, findings and policy recommendations as they were presented in a PhD thesis with the same title that was defended on 23 January 2015 at the Faculty of Law at the University of Bergen in Norway. The thesis clarifies the importance of making a distinction between the applicability and application of the MEIP, and provides guidelines on how one should verify compliance with the test. It also elaborates on various subtypes of the MEIP, which is crucial to practitioners. Moreover, it analyses the Commission and EFTA Surveillance Authority’s ‘wide margin of discretion’ in the MEIP cases in light of the limited judicial review. Finally, it scrutinises the criticism of the MEIP as an objective and reliable instrument that detects aid and provides guidelines on how the use of the MEIP may be less prone to errors. Keywords: Market Economy Investor Principle; Applicability v Application of the MEIP; Objective-Based Approach; Economic v Non-Economic Objectives; Absence of Normal Market Conditions; EEA State Aid Law.

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