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The MEOP in the Larko Case · Case T-423/14 Larko Geniki · Annotation by Małgorzata Cyndecka journal article

Annotation on the Judgment of the General Court (Sixth Chamber) of 1 February 2018 in Case T-423/14 Larko Geniki Metalleftiki kai Metallourgiki AE v European Commission.

Małgorzata Cyndecka

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 180 - 185

When the State grants an economic advantage to an undertaking, it may avoid triggering Article 107(1) TFEU by complying with the Market Economy Operator Principle (MEOP). Yet, if the State invokes the MEOP in the course of the administrative procedure, it must establish unequivocally and on the basis of objective and verifiable evidence that it acted as a rational, profit-oriented, prudent and well-informed private market operator would have acted in similar circumstances under normal market conditions. If the State provides such information, the Commission is required to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the beneficiary would manifestly not have obtained comparable facilities from a private operator. While granting an economic advantage to an undertaking in financial difficulties does not necessarily amount to aid, the State must prove that it properly took into account the additional risk involved in a given measure when it decided to implement it. Ignoring such signs of a firm being in difficulty as increasing losses, diminishing turnover or mounting debt is not in line with the behaviour of a prudent private shareholder and it questions the economic rationality of the State’s conduct. This may entitle the Commission to qualify a given measure as aid. Keywords: MEOP; burden of proof; prudent shareholder; firm in difficulties; State guarantees.

Football Glory, Credit Crisis and State’s Paternalism · Case T-766/16 Hércules CF v European Commission · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the General Court (Fourth Chamber) of 20 March 2019 in Case T-766/16 Hércules CF v European Commission.

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 549 - 554

Football is the most famous sport all around the globe and is also of great social and cultural significance. For this reason, State authorities may be tempted to provide additional support to professional football clubs which find themselves in an acute financial crisis through direct or indirect (like guarantees, tax or levies exemptions, loans on more favourable terms, transactions under non-market conditions) support measures. However, the football sector is not special for competition rules and the Commission has recently begun to enforce State aid rules in football. In the Hércules CF judgment, the General Court studies a situation that perfectly fits in the above-described situation since it analyses the grant of a public guarantee to a professional football club which is in a difficult financial position. Finally, the General Court annulled the Commission’s Decision on formal grounds on the basis of a comprehensive approach of the proof assessment carried out by the Commission. Keywords: Football; Indirect financial support; Guarantee; Loan; Lack of motivation.

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.

Public Activities on Commercial Markets: The Issue of Cross-Subsidisation journal article

Michael Honoré

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 181 - 192

Public authorities are increasingly engaging in economic activities. This may give problems of competitive neutrality, as also highlighted by the OECD. The purpose of this article is to illustrate some of the complex – and often overlooked - State aid issues that may arise when an economic activity is carried out by a public authority, with particular emphasis on the issue of aid (cross-subsidisation) at the level of the public undertaking. It is contended that State aid law is a potent instrument for private operators faced with competing public undertakings, and that State aid law may in fact impose requirements upon public authorities in terms of accounting separation and benchmarking, which go further than the requirements under e.g. the State Aid Transparency Directive and antitrust-law (including Articles 101, 102 and 106 TFEU). Keywords: Notion of Advantage; Cross-Subsidisation; Public Undertakings; Separation of Accounts; Implied and Unlimited Guarantees.

DHL Leipzig-Halle  ∙ Case T-452/08 ∙ Annotation by Daniel Harrison journal article

Developments since the Judgment of the General Court in DHL Leipzig-Halle

Daniel Harrison

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 487 - 494

As the case of DHL-Leipzig Halle demonstrated, the possibility that contractual measures implementing an unlawful aid measure are invalid and unenforceable can give rise to a curious paradox: where the State assumes a contingent liability that has not yet crystallised, unenforceability of the contractual "advantage" may mean that unlawful aid is, like Schrödinger's cat, both present and absent at the same time. This article looks at the two cases since DHL Leipzig-Halle that have cited the judgment, before considering other areas in which contractual unenforceability of State aid measures can impose adverse – and often unfair – consequences on parties that have received no advantage or benefit from the aid measure in question: State guarantees and warranties and indemnities given to buyers of privatised businesses. Keywords: Unlawful Aid; State Guarantee; Borrower's Liabilities; Warranties and Indemnities; Privatisation; DHL Leipzig-Halle; Aer Lingus.

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