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State Aid in Pre-Accession Power Purchase Agreements: Strict Requirement for a Global Assessment When Applying the Private Investor Test

Annotation on the Judgment of the Court (Third Chamber) of 1 October 2015 in Case C-357/14 P - Electrabel and Dunamenti Erőmű v Commission

Dimitris Vallindas

In this judgment, the Court reiterated the Commission’s obligation to carry out a global assessment when applying the private investor test. Therefore, while the date of reference to assess the existence of aid in a pre-accession power purchase agreement is the date of accession, the Commission’s global assessment must also include all relevant elements that precede that date. The Court ruled that the Commission had not done so, but decided to simply substitute the grounds of the General Court’s judgment on this point without setting it aside (the General Court had rejected the application for annulment of the Commission’s decision). Interestingly, while the Advocate General in this case had expressed the same criticism in his opinion, he had concluded that the General Court’s judgment should be set aside. This was likely the result of a different reading of the relevant ground of appeal, which shows how important it is to carefully and accurately draft any document to be submitted to the EU Courts.

Dimitris Vallindas, Counsel at Sheppard Mullin Richter & Hampton, Brussels.


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