European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Article 107 refers to “any aid granted by a Member State” . To be classified as a State aid, the measure must be attributable to the State. It can only result from a legislative instrument or a regulatory decision of the Member State , and not from an act from the EU legislature . The notice on the concept of State aid recalls that the measure is imputable to the State when the advantage is grante …

State-controlled organizations

Article 107 refers to “any aid granted by a Member State” . To be classified as a State aid, the measure must be attributable to the State. It can only result from a legislative instrument or a regulatory decision of the Member State , and not from an act from the EU legislature . The notice on the concept of State aid recalls that the measure is imputable to the State when the advantage is granted by a public authority or a private or public body appointed to administer the aid measure. The notice lists a number of indications that the advantage is imputable to the State: - the fact that the body could not adopt the contested decision without taking account of the requirements of the public authorities; - the presence of elements of an organic nature linking the public undertaking to the State; - the degree of supervision exercised by the public authorities over the undertaking, etc.

The concept of “state” is broadly interpreted and includes intra-State entities - decentralized, federated, regional or other  - of the Member States . It also includes public or private bodies designated or established by the State . A wide range of entities exercising prerogatives of public power fall within the notion of the State . An entity acts as a public authority or exercises prerogatives of public power when its activity is linked to the essential functions of the State or attached to those functions by its nature, its purpose and the rules to which it is subject . The General Court also made an undertaking controlled by two Member States subject to the State aid rules, the fact that neither of them held a simple majority of voting rights on the board of directors being irrelevant. According to the European Court of Justice, to accept the contrary would allow Member States to unite on an equal footing in multi-national institutions responsible for distributing State aid, in order to circumvent the rules .

However, the mere fact that a measure is taken by a public undertaking is not enough in itself to be regarded as imputable to the State. The imputability to the State of a measure adopted by a public undertaking firstly implies control by the State of the entity in question. The holding by a local authority  or the State  of a shareholding or a right of veto , the public authorities controlling the board of directors  or being able to impose its own decisions  are all indications of the existence of control by the State. But the power of control held by the State over a public undertaking is not sufficient in itself to show its involvement in the adoption of an aid measure . The concept of the concrete involvement of the State which must be understood in the sense that the measure in question has been adopted under the dominant influence or effective control of the public authorities , can be inferred from structural or behavioral indicators  and cannot be derived from the classification of “emanation of the State”, which was not developed with the aim of defining as constituting aid measures adopted by bodies or entities subject to State audit or which have powers exorbitant compared with those resulting from the rules applicable between private individuals . The intensity of the supervision exercised by the public authorities over the management of that undertaking is a relevant factor in establishing the existence of a State aid .  Thus, due to the statutes governing their functioning, aid granted by the Caisse des dépôts et consignations , the SNCF , Air France , and the Chamber of Commerce and Industry  were imputed to the French State. The autonomy granted to a public undertaking through its legal form does not preclude the possibility for a Member State to exercise a decisive influence for the adoption of certain measures . Likewise, the public origin of the resources may be the sign of effective State control in the adoption of the measures. Aid granted by a body endowed with public funds and of which a regional authority is the sole shareholder , by a public holding company which receives a capital fund from the State , a Chamber of Commerce and Industry whose funds come from local authorities , or a public broadcasters' foundation receiving direct contributions from the media budget and revenues generated by copyright payments . For the purposes of determining whether or not the guarantees provided by a public undertaking are imputable to the public authority controlling that undertaking, account must be taken of whether the sole director of the undertaking providing those guarantees acted improperly, deliberately kept the provision of those guarantees secret and disregarded that undertaking's by-laws, and, whether that public authority would have opposed the provision of the guarantees, had it been informed of it, although such circumstances do not in themselves exclude such imputability .

Lastly, a measure will also be imputable to the State where the action of the body dispensing the aid is subject to the State's prior authorization , where the public authorities are involved in the adoption of the measure , where they have defined the conditions for the granting of such aid , or more generally, where they have a power of decisive influence on the body dispensing the aid and have effectively excercised that power . This is not the case of the decision by a national authority extending an inter-trade agreement to all traders in an agricultural industry which introduces the levying of a contribution in order to make it possible to implement publicity activities, research activities and activities in defense of the sector's interests, insofar as the resources resulting from the contributions at issue are not under public control, are not available to State authorities and the activities carried out by the inter-trade organisation are not imputable to the State . By contrast, a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that is financed by all final consumers of electricity, constitutes an intervention through State resources .

In any case, a measure cannot be attributed to a Member State if the latter is obliged to implement it under EU law and has no discretionary power .

Case 61/79 Amministrazione delle finanze dello Stato v Denkavit italiana [1980] ECR 1205, LawLex200500005400JBJ, Rec. 1205, at pt 31.

Commission Decision No 2004/838/EC of 10 December 2003, Budgetary grant for France Télévisions, LawLex200500005335JBJ.

Commission Decision No 85/215/EEC of 13 February 1985, The preferential tariff charged to glasshouse growers for natural gas in the Netherlands, LawLex200400002431JBJ: private-law company, 50% of which is held by the State which has a dominant influence on the level of tariff in the form of a right of veto although it does not control a decisive majority of votes.

Case 67/85 Van der Kooy v Commission [1988] ECR 219, LawLex200500004469JBJ: right of veto on the price structure adopted by the undertaking.

Commission Decision No 2002/458/EC of 1st March 2000, Aid schemes implemented by Greece in favour of the settlement of debts by the agricultural cooperatives, LawLex200500004607JBJ: Board of Directors appointed by governmental decision; No 2005/173/EC of 12 May 2004, Aid implemented by Spain, LawLex200700001548JBJ: board of directors constituted to a large extent of State secretaries and other persons directly linked to the government; No 2006/367/EC of 20 October 2004, State aid partly implemented by France for the “Sernam” company, LawLex200700001576JBJ: control over seven out of the eighteen members of the board of directors directly representing the public authorities; No 2005/786/EC of 2 March 2005, State aid implemented by Germany for Chemische Werke Piesteritz, LawLex200600001234JBJ: entity under the direct supervision of a ministry.

Case T-136/05 Salvat père & fils and others v Commission [2007] ECR II-4063, LawLex200900000047JBJ.

Case C-482/99 France v Commission [2002] ECR I-4397, LawLex200500004858JBJ; Joined Cases T-305/13 Servizi assicurativi del commercio estero SpA and others, Judgment of 25 June 2015, LawLex201700000991JBJ, holding that the mere fact that a Member State, as sole shareholder of an undertaking, is able to exercise a dominant influence on the activities of that undertaking does not give rise to the assumption that it has effectively exercised its control with regard to the adoption of the disputed measures; Case C-329/15 ENEA (SA), Judgment of 13 September 2017, LawLex201800000346JBJ: the mere fact that the State held the majority of the capital in some of the undertakings subject to the purchase obligation does not lead to the conclusion that the State exercised a dominant influence that enabled it to direct the use of the resources of those undertaking in order to finance advantages to the benefit of other undertakings.

Joined Cases T-305/13 Servizi assicurativi del commercio estero SpA and others, Judgment of 25 June 2015, LawLex201700000991JBJ.

Imputability to the State of an aid measure adopted by a public undertaking may be inferred from a set of indicators such as the integration of that public undertaking into the structures of the public administration, the nature of its activities and the exercise of the latter on the market in normal conditions of competition with private operators, the intensity of the control by the public authorities over the management of the undertaking, or any particular indicator of an involvement by the public authorities in the adoption of a measure, having regard also to the compass of that measure, its content or the conditions which it contains: Commission Decision No 2005/173/EC of 12 May 2004, Aid implemented by Spain, LawLex200700001548JBJ.

Case C-425/19 P Commission c. République italienne, Judgment of 2 March 2021, LawLex202100004948JBJ.

Case C-482/99 France v Commission [2002] ECR I-4397, LawLex200500004858JBJ.

Case T-358/94 Air France v Commission [1996] ECR II-2109, LawLex200500005147JBJ.

Case T-351/02 Deutsche Bahn v Commission [2006] ECR II-1047, LawLex200600001228JBJ.

Commission Decision No 2006/367/EC of 20 October 2004, State aid partly implemented by France for the “Sernam” company, LawLex200700001576JBJ: subsidies paid by the SNCF to a firm in difficulty are imputable to the State given its status as a commercial industrial public corporation allowing it to have an unlimited guarantee from the State.

Case T-358/94 Air France v Commission [1996] ECR II-2109, LawLex200500005147JBJ: subsidies from the public sector threatening the play of competition are caught by Article 107 TFEU, it being unnecessary for those subsidies to be granted by the government or by a central administrative authority of a Member State.

CA Admin Nancy No 03NC00859 of 18 December 2003: as the Chamber of Commerce and Industry, an administrative economic public corporation, is to be regarded as a State body, the financial aid it grants, coming mainly from local authorities, constitutes a State aid where the Chamber does not act as a private investor.

Case T-358-94 Compagnie nationale Air France (SA), Judgment of 12 December 1996, LawLex200500005147JBJ: aid granted by the Caisse des dépôts et consignations, an institution belonging to the public sector and subject to parliamentary oversight, constitutes aid imputable to the French State despite the legal autonomy it enjoys and even if the disputed investment did not receive government approval.

Case T-228/99 Westdeutsche Landesbank Girozentrale v Commission [2003] ECR II-435, LawLex200500004822JBJ.

Case C-305/89 Italy v Commission [1991] ECR I-1603, LawLex200500004651JBJ.

CA Admin Nancy No 03NC00859 of 18 December 2003.

Commission Decision No 2008/136/EC of 22 June 2006, The ad hoc financing of Dutch public service broadcasters, LawLex200800000282JBJ.

Case C-242/13 Commerz Nederland, Judgment of 17 September 2014, LawLex201400000915JBJ.

Case 290/83 Commission v France [1985] ECR 439, LawLex200500004431JBJ: a solidarity grant constitutes a State aid where it is decided and financed by a public body and where its implementation is subject to the approval of the public authorities; Case T-67/94 Ladbroke Racing v Commission [1998] ECR II-1, LawLex200500005200JBJ: unclaimed winnings made available to the PMU constitute State resources where their use is subject to prior authorization from the responsible national authorities; Commission Decision No 2005/173/EC of 12 May 2004, Aid implemented by Spain, LawLex200700001548JBJ: aid granted by a State holding company whose activity is closely linked to public policy and which has already granted public aid, constitutes State aid granted by a public corporation.

Regional or local authorities: Case T-37/97 Forges de Clabecq SA v Commission [1999] ECR II-859, LawLex200500005219JBJ: a capital contribution, advances and waivers of claims, made in favor of private undertakings by a company wholly owned by a local authority, the articles of association of which specifically mention its capacity as regional economic instrument, and the conduct of which is directly linked to deliberations within the government of that authority, emanate from the State within the meaning of Article 107 TFEU; Commission Decision No 2000/392/EC of 8 July 1999, Measure implemented by the Federal Republic of Germany for Westdeutsche Landesbank, LawLex200400002589JBJ; No 2002/14/EC of 12 July 2000, Aid granted by France to Scott Paper SA Kimberly-Clark, LawLex200500004730JBJ: the preferential price of a piece of land is a measure chargeable to the State within the meaning of Article 107(1) TFEU, where it is fixed by local authorities and an agreement was concluded between the buyer and those authorities and where the sale was carried out by an undertaking governed by private law at least 50% of the capital of which is held by those authorities; Case T-228/99 Westdeutsche Landesbank Girozentrale v Commission [2003] ECR II-435, LawLex200500004822JBJ: the availability of the capital of an institution governed by public law, of which a local authority is the sole shareholder and whose funds come from the income of that authority, involves a transfer of State resources within the meaning of Article 107(1) TFEU.

Commission Decision No 2003/284/EC of 11 December 2002, Aid implemented by Spain for Sniace SA, LawLex200500005431JBJ: the very active role played by local authorities in the re-launch of an undertaking in difficulty benefiting from a loan and in the implementation of a viability plan indicates that the public authorities were involved in the process of granting the loan; No 2005/173/EC of 12 May 2004, Aid implemented by Spain, LawLex200700001548JBJ: Imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators such as the intensity of the supervision exercised by the public authorities over the management of the undertaking, or any relevant indicator of an involvement by the public authorities in the adoption of a measure, having regard also to the compass of that measure, its content or the conditions which it contains.

Commission Decision No 2008/136/EC of 22 June 2006, The ad hoc financing of Dutch public service broadcasters, LawLex200800000282JBJ: funds granted by a foundation of public broadcasters receiving direct contributions from the media budget and revenues generated by the copyright payments, and whose transfers can be only made available to broadcasters under conditions determined by the State, constitute State resources.

Commission Decision No 85/215/EEC of 13 February 1985, The preferential tariff charged to glasshouse growers for natural gas in the Netherlands, LawLex200400002431JBJ: the advantage resulting from the fixing of preferential tariff for natural gas in favor of undertakings of a sector are from a State, within the meaning of Article 107 TFEU, where the price is fixed by a private-law company, 50% of which is held by the State which has a dominant influence on the level of tariff in the form of a right of veto although it does not control a decisive majority of the votes; Commission Decision No 2003/284/EC of 11 December 2002, Aid implemented by Spain for Sniace SA, LawLex200500005431JBJ: a loan granted by a private banking institution over which the public authorities may have a dominant influence constitutes an aid imputable to the State where they actually exercise their control.

Case C-677/11 Doux Élevage SNC, Judgment of 30 May 2013, LawLex201300000884JBJ.

Case C-262/12 Association Vent De Colère and others, Judgment of 19 December 2013, LawLex201300001868JBJ.

Case T-351-02 Deutsche Bahn c. Commission, Judgment of 5 April 2006, LawLex200600001228JBJ.

Case T-346/99 Diputación Foral de Álava and others v Commission [2002] ECR II-4259, LawLex200500005046JBJ.

Case C-72/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, LawLex200500004927JBJ.  

Case C-701/21 P Mytilinaios AE - Omilos Epicheiriseon, Judgment of 22 February 2024, LawLex202400007942JBJ, which states that the existence of a court decision on the legality of an arbitration award cannot, in any event, suffice to qualify the award, as endorsed by that decision, as a measure liable to constitute state aid.

Case T-364/20 Kingdom of Denmark, Judgment of 28 February 2024, LawLex202400007941JBJ: the notion of “activity connected with the exercise of prerogatives of public authority” covers, in particular, activities which involve the use of prerogatives exorbitant to ordinary law, such as regulatory or coercive powers, or privileges of public authority which are imposed on citizens and undertakings, or activities whose purpose is to ensure compliance with the regulations in force.

Case T-525/20 ITD, Danske Fragtmænd A/S, Judgment of 13 September 2023, LawLex202400004923JBJ.

Shareholding up to 100%: Case T-37/97 Forges de Clabecq SA v Commission [1999] ECR II-859, LawLex200500005219JBJ; - Shareholding up to 50%: Case C-328/99 Italy and SIM 2 Multimedia v Commission [2003] ECR I-4035, LawLex200500004597JBJ; Commission Decision No 2004/167/EC of 17 September 2003, Aid implemented by Germany for Space Park Development GmbH & Co., KG, LawLex200500004531JBJ.

European Competition Law

371. State-controlled organizations

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Les décisions de justice citées dans ce paragraphe :

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371. State-controlled organizations

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise