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

The private operator test applies to transactions conducted both with undertakings in difficulty and those which are sound and profitable , even public undertakings . It is the Commission's responsibility to ask the Member State concerned to provide all relevant information enabling it to verify whether the conditions for application of the private operator principle have been met, since proof of  …

Conditions of application

The private operator test applies to transactions conducted both with undertakings in difficulty and those which are sound and profitable , even public undertakings . It is the Commission's responsibility to ask the Member State concerned to provide all relevant information enabling it to verify whether the conditions for application of the private operator principle have been met, since proof of the existence of an advantage constituting State aid cannot result from a negative presumption, based on the absence of information leading to the opposite conclusion, in the absence of other elements capable of positively demonstrating the existence of such an advantage . The only relevant factors are the elements available and foreseeable developments at the time the decision to grant the measure in question was taken . It is also up to the Commission to prove, on the basis of these elements, that the conditions for the application of the private operator principle have not been met, and that the State intervention involves State aid .

The assessment of the behavior of a private creditor towards a debtor in financial difficulties does not imply to consider that the creditor necessarily makes cautious and pessimistic assumptions .

The private investor test can be applied in several consecutive interventions by the State. In this case, it is necessary to examine whether these interventions are so closely linked, particularly in terms of their chronology, purpose and the beneficiary's situation at the time, that they cannot be dissociated and must therefore be considered as a single intervention .

The private operator test cannot be used to assess the conduct of the State where it is acting as a public authority . When the way in which an investor would have behaved is being assessed, the role of the State as the seller of an undertaking should not be mixed up with its obligations as a public authority . A Member State which seeks, through its declarations, to influence the reaction of the financial markets and obtain the maintenance of the rating of the incumbent telecommunications operator with a view to a future solid and less costly refinancing, is merely adopting the prudent and diligent attitude of a private investor preparing to make an irrevocable commitment to support the incumbent telecommunications operator . Further, the behavior of an undertaking entrusted with a service of public interest towards its subsidiary cannot be compared to that of a parent company and its subsidiary .  In the absence of any possibility of comparing the situation of such an undertaking with that of a private group of undertakings not operating in a reserved sector, normal market conditions, which are necessarily hypothetical, must be assessed by reference to the objective and verifiable elements which are available .  

Lastly, it is not sufficient that the Member State concerned considers that the contested measure constitutes State aid and does not invoke the private creditor test to deduce that this criterion is indeed inapplicable, insofar as the beneficiary may also rely on it and, when applicable, the test is one of the elements that the Commission is required to take into account to establish the existence of such aid . 

Commission Decision No 2000/392/EC of 8 July 1999, Measure implemented by the Federal Republic of Germany for Westdeutsche Landesbank, LawLex200400002589JBJ.

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

Case C-83/01 P Chronopost v Ufex and others [2003] ECR I-6993, LawLex200500004606JBJ; Decision in the same case: Commission Decision No 98/365/EC of 1st October 1997, Alleged State aid granted by France to SFMI-Chronopost, LawLex200400002559JBJ: the conditions of the transaction between La Poste, an undertaking operating in a reserved market, and its subsidiary operating in a competitive market, may be compared to the transaction between a private parent company in a monopoly situation, and its subsidiary; Case C-341/06 P Chronopost and La Poste v UFEX and others [2008] ECR I-4777, LawLex200900000067JBJ.

Case C-83/01 P Chronopost v Ufex, cited above.

Case T-103/14 Case Frucona Košice AS, 16 March  2016, LawLex201600000604JBJ.

Case T-423/14 Larko Geniki Metalleftiki kai Metallourgiki AE, Judgment of 4 May 2022, LawLex202300002493JBJ.

Case C-758/21 P Ryanair DAC, Judgment of 23 November 2023, LawLex202400004965JBJ; Case C-445/22 P Larko Geniki Metalleftiki kai Metallourgiki AE, Judgment of 12 October 2023, not available in English.

Case C-445/22 P Larko Geniki Metalleftiki kai Metallourgiki AE, Judgment of 12 October 2023, not available in English.

Case T-11-07 Frucona KoŠice a.s., Judgment of 7 December 2010, LawLex201100000199JBJ, having nevertheless held that the preference given by a tax authority to judicial composition proceedings (concordant judiciaire) rather than judicial liquidation proceedings in respect of a debtor experiencing financial difficulties does not correspond to the normal conduct of a private creditor in a market economy, where the reasonably foreseeable proceeds from the sale of assets in the context of judicial liquidation appear to be much greater than those that would be received in execution of the composition.

Case T-1/12 France v Commission, Judgment of 15 January 2015, LawLex201700000974JBJ.

Case T-196/04 Ryanair v Commission [2008] ECR II-3643, LawLex200900000253JBJ; Case C-287/12 P Ryanair Ltd. v Commission, Judgment of 13 June 2013.

Cases T-268/08 and T-281/08 Land Burgenland and Austria v Commission [2012], LawLex201200000661JBJ.

Cases T-425/04 RENV France and Orange v Commission, Judgment of 2 July 2015, LawLex202500006734JBJ.

European Competition Law

382. Conditions of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

382. Conditions of application

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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