The private investor principle in the recent State aid case law

Workshop organized by Concurrences in partnership with Reed Smith.

Francesco Martucci

The concept of operator in a market economy

The criterion of market economy operator has become a "concept" which establishes "normal market conditions" as the true standard of the state operation. A market normality thus radiates both the conditions of applicability and the methods of application.

Since the 1970s, the Commission has been taking into account the role of the enterprise state. Together with the Court, it has gradually developed the market economy investor test, a test which has subsequently been adapted to the qualities of the State as an undertaking, shareholder, creditor, service provider, vendor, etc., a State which is a prudent, average, reasonable, rational operator, etc. The Commission has also taken account of the role of the State as a market economy investor. The draft communication on the concept of state aid of 2014 places great emphasis on the market economy operator criterion, which is to be used to "assess whether, in the context of a given transaction, the state has conferred an advantage on an undertaking by not behaving as a market economy operator".

Photos © Léo-Paul Ridet.

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  • European Commission - Legal Service (Brussels)
  • DS Avocats (Paris)
  • University Paris II Panthéon‑Assas