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Previous State aid and Subsequent Financial Assistance journal article

The FIH Judgment and the Future of the MEOP

Jan Bonhage

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 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.


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

Consequences of the FIH Holdings Judgment

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 368 - 374

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.


The MEOP in the FIH Case ∙ C‑579/16 P Commission v FIH ∙ Annotation by  Małgorzata Cyndecka journal article

Annotation on the Judgment of the Court of Justice (Grand Chamber) of 6 March 2018, in Case C‑579/16 P European Commission v FIH Holding and FIH Erhvervsbank (FIH).

Małgorzata Agnieszka Cyndecka

European State Aid Law Quarterly, Volume 17 (2018), Issue 4, Page 546 - 552

In the awaited FIH judgment, the CJEU once again reviewed the question of costs or risks that may be taken into account under the application of the MEOP. It is now clear that the origins of such costs or risks are crucial. What may make sense in terms of economics, which is one of the two components of the MEOP, is not necessarily in line with State aid law. In fact, if based solely on number crunching, the application of the MEOP may frustrate the aim of State aid control that is safeguarding a ‘level playing field’ for all market participants.


Once an Aid Recipient, Always an Aid Recipient? The Post-Crisis State Interventions in the Banking Sector and Beyond journal article

Małgorzata Agnieszka Cyndecka

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 192 - 203

One of the questions raised by the unprecedented state interventions in favour of banks that were hit by the financial crisis is whether the mere fact of having benefitted from aid in the past qualifies any future state measures granted to the same undertaking as aid. Given the number and importance of beneficiaries that received ‘crisis aid’ under article 107(3)(b) TFEU, this question merits a prompt answer. In terms of State aid law, it amounts to establishing the applicability of the Market Economy Operator Principle, MEOP. While the General Court (GC) ruled on consecutive state measures under Article 107(1) TFEU in the BP Chemicals case of 1998, recent case law has raised much controversy. This article attempts to clarify the implications of disregarding or misapplying BP Chemicals and the consequences of such practice to the MEOP while the CJEU is about to give its ruling in FIH, a highly debatable case on consecutive state measures in the banking sector. Keywords: Applicability and Application of the MEOP; Banking Sector; Consecutive State Interventions; BP Chemicals Formula; FIH Case.

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