The Market Economy Investor Test in EU State Aid Law: Applicability and Application

The Market Economy Investor Test in EU State Aid Law unravels the notion of the Market Economy Investor Principle (MEIP). For more than thirty years, EU and EFTA courts have been using a test for applying the MEIP to determine whether a state intervention amounts to a granting of an economic advantage to a recipient undertaking. If the state wishes to act as a commercial operator, it must comply with the MEIP. Unsurprisingly, the test remains a difficult and controversial legal instrument, and its very existence and credibility have been questioned. This book analyses the applicability of MEIP in order to clarify doubts and misinterpretations. Such an understanding is crucial because of the negative consequences of the test’s misapplication, and also because the ongoing process of opening markets for more competition blurs the distinction between the public and private sectors. What’s in this book: - The analysis (of the applicability of MEIP) addresses such questions as the following: - What characterizes a ‘prudent’ investor? - When is it justified to consider a given public investor ‘rational’ or ‘reasonable’? - How should the ‘economic’ or ‘commercial soundness’ of state interventions be understood? - What rate of return is required under the MEIP and how is it calculated? - When should the profitability analysis be undertaken and why? The author examines both the theory behind the principle and its practical application, with detailed attention to case law and the Commission’s guidelines explaining the test’s mechanism. The different subtypes of the MEIP are enumerated and scrutinized in-depth, and the various critiques of the test are considered. The work concludes with proposals for change. How this will help you: Practitioners, policymakers, and academics will appreciate the clarification offered of the MEIP: the character of an economic advantage under the MEIP and in aid scenarios; how to determine whether the MEIP is applicable to a given state measure; and how to apply the test according to its various subtypes and to atypical or complex interventions. In addition, the book identifies potential and existing pitfalls in using the MEIP and suggests how to avoid them. The book’s systematic analysis goes a long way to ensuring a credible and reliable assessment of the applicability of state aid under Article

Preface List of Abbreviations PART I Introduction, Objectives, Delimitations and Methodology CHAPTER 1 Introduction PART II Introductory Remarks on the Notion of the MEIP CHAPTER 2 The Dual Capacity of State and the MEIP PART III The Applicability of MEIP CHAPTER 3 Introduction CHAPTER 4 AG Lenz’s View on the Applicability of the MEIP CHAPTER 5 Hytasa: Making a Distinction between the Two Capacities of the State CHAPTER 6 The Relation between the Fulfilment of Obligations, Which the State Assumed as a Public Authority, and the Exercise of Public Powers CHAPTER 7 The Applicability of the MEIP Post-EDF CHAPTER 8 The Applicability of the MEIP to Measures That Were Adopted in Relation to the 2008 Financial Crisis CHAPTER 9 The Applicability of the MEIP to the Financing of Services of General Economic Interest PART IV The Application of the MEIP CHAPTER 10 Preliminary Remarks CHAPTER 11 Economic and Non-economic Objectives Pursued by a Public Investor CHAPTER 12 From Whose Perspective Should One Verify the Profitability of a State Intervention? CHAPTER 13 What Rate of Return Is Required under the MEIP and How to Calculate It? CHAPTER 14 In Search of the ‘Right’ Benchmark of the MEIP in a Given Case CHAPTER 15 When Should the Profitability Analysis Be Undertaken and Why? CHAPTER 16 The Test of Concomitance under the MEIP PART V The Application of the Different Subtypes of the MEIP CHAPTER 17 The MEIP and Its Subtypes PART VI The Judicial Review CHAPTER 18 The Judicial Review of Cases concerning the MEIP PART VII Criticism of the MEIP and Conclusions CHAPTER 19 Criticism of the MEIP CHAPTER 20 Conclusions Bibliography Table of cases Table of Legislation EEA law Miscellaneous Index