Member News

Public investor not exempted from prior private investor test

By Houthoff

On 23 November 2017, the Court of Justice of the EU (the “CJEU”) confirmed the judgment of the General Court (the “GC”) in the SACE case.

SACE is owned by the Italian State and provides export credits. In 2013, the European Commission considered that a capital injection by SACE into Sace BT, a subsidiary, was not in conformity with the market economy investor principle. In 2015, the GC confirmed the Commission’s assessment and only partly annulled the decision due to a miscalculation of the amount of aid.

The CJEU confirmed its settled case law (C-124/10 P, Commissie/EDF), according to which a public authority can only successfully argue that its investment does not result in State aid if it can demonstrate that its investment decision is based on a prior economic assessment of the profitability of the investment. Such evidence cannot be produced retroactively.

Read more (in French) here

Compliments of Houthoff, a member of the EACCNY