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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.


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

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

European State Aid Law Quarterly, Volume 17 (2018), Issue 2, Page 290 - 297

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.

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