EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Communities , para. 148, referencing Dansk Rørindustri and Others v Commission ; C-501/06 P GSK and Others above referencing C-431/07 P Bouygues , para. 155). It is common ground that the rules on Articles 101 and 102 TFEU and those on state aid are subject to a common Chapter of Title VII of the FEU Treaty (“Rules on Competition”), and that there are certain overlaps between the “Rules applying to undertakings” and those on “Aids granted by States”. This includes the concept of an “undertaking”, common for the field of competition law in general (Case C-222/04 Ministero dell’Economia e delle Finanze v Cassa di Risparmio di Firenze SpA, Fondazione Cassa di Risparmio di San Miniato and Cassa di Risparmio di San Miniato SpA , para. 107). As such, in particular, where a given issue was not explicitly decided in a purely “state aid” case, it was not unreasonable to expect a certain middle ground as regards the scope of judicial review between state aid cases and other cases in the field of competition law, especially those involving Articles 101 and 102 TFEU. 3.2 C-160/19 P Comune di Milano and issues raised thereby The case at issue, C-160/19 P Comune di Milano v European Commission , which among other things involved the application of the “private investor” test (also known as a market economy operator principle) on appeal, was preceded by Case [T]he Commission is required to make a complex economic assessment when it examines whether particular measures can be described as State aid because the public authorities did not act in the same way as a private investor. However, in the context of the review conducted by the European Union Courts on complex economic assessments made by the Commission in the field of State aid, it is not for those Courts to substitute their own economic assessment for that of the Commission (…) and they must confine their review to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts have been accurately stated and whether there has been any manifest error of assessment of those facts or a misuse of powers (para. 107). The GC added that “in order to establish that the Commission committed a manifest error in assessing the facts such as justifying the annulment of the contested decision, the evidence adduced by the applicants must be sufficient to make the factual assessments used in the decision in question implausible (para. 108)”. This was complemented by a passage that T-167/13 Comune di Milano v European Commission . On the issue of review, the General Court found that

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