A Further Step Towards A Proceduralisation Of The Market Economy Investor Test

A considerable number of State aid decisions have been adopted by the European Commission in the context of the financial crisis and thousands of papers have been written about it. Yet, only twice have the European judges been requested to rule on the legality of those decisions. The first opportunity to give clarifications in that respect arose in case ING. At the heart of the dispute between the Commission and Netherlands State lies the application of the Market Economy Investor Test. The appeal judgment commented upon clarifies that the Commission cannot evade its obligation to assess the economic rationality of an amendment to the repayment terms in the light of the private investor test solely on the ground that the capital injection subject to repayment itself already constitutes State aid. The reasoning unfold by the Court in its judgment - which can be undoubtedly defined as overly concise - confirms however the presence of two trends in European case law. The first is the increasingly clear attempt to “proceduralise” the application of MEIT in order to respond to the lack of legal certainty inherent in the nature of the test itself. The second, which emerges from the most recent jurisprudence, is the gradual shift from the traditional profit-oriented paradigm of private investor to the different model of “reasonable investor”. In those two respects, the ruling must certainly be welcomed by the legal community.