On the 15 December 2009, the General Court of the European Union annulled a Commission decision against EDF which declared aid it had received from the French State as incompatible with the common market.

The case dates back to December 2003, when the Commission found that EDF had enjoyed a tax concession worth approximately €888.89 million as a result of corporation tax it did not pay in 1997. EDF, supported by the French State, sought an annulment of the decision on the basis that the Commission had failed to consider their argument that the French State, as EDF’s sole shareholder, had acted like a private investor.

The General Court, in its decision, considered that it is not sufficient justification to regard State actions as attributable to the exercise of State authority by the simple fact that a State has access to resources accrued through the exercise of State authority. The Court considered that an undertaking whose share capital is owned by a public authority, and into which the State injects capital, can be assessed using the prudent private investor test.

Accordingly, the General Court concluded that by refusing to consider the contested measure in the context of the private investor test, the Commission had made an error in law and, therefore, annulled the Commission’s decision.

111/09 – 15 December 2009