Research Fellow Malgorzata Cyndecka – “The Applicability and Application of the Market Economy Investor Principle (MEIP)”

The project deals with one of the most important, but also controversial and difficult in application legal tools that operate within the EU/EEA State aid legal regime. The MEIP, also referred to as the private investor test (PIT), enables to rule out the presence of State aid within the meaning of Article 107(1) TFEU and 61(1) EEA, respectively. This is the case if the state acted as a comparable private investor would have acted in similar circumstances and under normal market conditions when it intervened in the market by, for example, making a capital injection into a private or public undertaking, granting it a loan, procuring goods, selling land or buildings or privatising a public undertaking.

Even though the MEIP has been applied since the 1980s, such crucial questions like when one can use it and what conditions must be met in this regard, still requires a proper examination. Obviously, one cannot test every single state’s intervention against a benchmark of a commercial market operator that is motived by maximising its profit or, alternatively, minimising its losses. This would be against the logic of the dual capacity of the state. This means that the state can and does act as both the public authority and entrepreneur, which is confirmed by Articles 345 TFEU and 125 EEA, respectively, also known as Articles expressing the principles of neutrality of ownership and equality of public and private undertakings.

Importantly, while the question of how to apply the PIT has been addressed by inter alia developing and refining its numerous subtypes, like the private investor, creditor, vendor, market operator, supplier or guarantor, the problem of its applicability still raises much controversy and doubts. This has been well demonstrated in cases like Case T-196/04 Ryanair v Commission [2008] ECR II-3643, Case T-156/04 EDF v Commission [2009] ECR II-4503, Case C-124/10 P Commission v Électricité de France (EDF) [2012] ECR n.y.r. or Joined cases T-29/10, T-33/10 Netherlands and ING v Commission [2012] ECR n.y.r. The thesis focuses thus on distinguishing between the two dimensions of the state in order to provide more clarity on the applicability question. As regards the application part, only issues that are considered most relevant and controversial are addressed in more detail.