The MEOP, and its corresponding test, the MEOT (Market Economy Operator Test), are essentially a way of identifying whether an advantage has been conferred in the context of a transaction between a Member State (or public body, or public undertakings) and an undertaking. An advantage is defined, in settled CJEU case law, as an economic benefit – of any form whatsoever – that the recipient undertaking would not have obtained under normal market conditions. In order to ascertain whether the recipient undertaking would have obtained it under normal market conditions, one needs to compare and contrast the actions of the State (the alleged aid measure) with those that a market economy operator would have made in a similar situation. If a market economy operator would have acted in a similar manner, no advantage has been conferred. If not, and the action or its conditions or terms, is any way different from that which would have been agreed on by a market economy operator, and they are, also, more favourable to the recipient undertaking, an advantage has been conferred. If all other state aid conditions are also fulfilled, state aid has been granted.
The MEOP is the main point of entry of economic analysis in state aid law. Contrary to the rest of competition law, economic analysis does not play any real role in the definition of market shares or the distortion of competition and effect on trade conditions. However, it features prominently in the MEOP analysis. The reason is evident: one needs to employ economic tools in order to determine whether a market economy operator (also sometimes called a “private” operator) would have taken the same route with regard to a certain transaction. For example: would a private bank have granted a loan to this undertaking under the same terms as the loan issued by the State? Would a private proprietor have sold a particular building for the price it was sold at by the State, or would they have asked for more? To answer these questions, economic analysis is indispensable.
What is irrelevant, in principle, are considerations that a market economy operator would not take into account, thus not including them in their decision-making process. For instance, a private economy investor would, in principle, not make an investment that would be loss-making, simply because the investment would benefit the local economy and/or the environment, or boost employment. On the contrary, they would focus on the profitability of the future investment and take into account factors that would influence it.
There are various versions/iterations of the market economy operator principle, depending on the capacity in which the Member State is acting and the kind of transaction it is engaged in. For example, building on the previous example, to establish whether a State’s investment State aid, it is necessary to determine whether a private investor of a comparable size operating in normal market economy conditions would have made the investment in question. When the State grants a loan, the comparison will be with a private creditor (usually a commercial bank). When the State makes a sale, the comparison will be with a private vendor, and the test will examine whether a private vendor might have gotten the same or better price under normal market conditions. A similar test would apply to the acquisition of assets or any other transaction that could be undertaken by a private party, e.g. a lease.
The considerations that need to be taken into account are those existing at the time of the transaction and not later on (ex ante assessment). For instance, if, with the available data at hand, a certain investment made business sense, the measure will not confer an advantage, even if it later proves to be a disastrous investment. However, the opposite is also true. An investment, by the State, in a certain company that made no business sense and would not have been undertaken by a private investor, will still qualify as state aid, even if, by chance, it ended up being highly profitable. Therefore, it is important for a Member State to carry out its own ex ante assessment of financial prospects of a project (e.g. a business plan), and not rely on ex post expert reports. Finally, it is worth noting that the fact that the measure was a fiscal (tax) measure does not rule out the possibility of it complying with the MEOP.