On 5 June 2012, Vassilios Skouris, President of the Court of Justice of the EU, pronounced the judgement in the case C-124/10 P Commission v EDF e.a. (State aid).
Electricité de France (EDF) produces, transports and distributes electricity, particularly throughout France. At the material time, EDF was a public undertaking, wholly owned by the French State. In 1997, within the framework of the opening up of the internal market in electricity the French State amended its legislation in order to clarify the legal and financial regime under which EDF operates, to restructure EDF's balance sheet and to increase its capital.
On 16 December 2003, the Commission adopted a decision finding that, in the context of the restructuring of EDF’s balance sheet and increasing of its capital, the French State had waived a tax claim valued at €888.89 million, corresponding to the corporation tax due from EDF. According to the Commission, the effect of that waiver had been to strengthen EDF’s competitive position in relation to its business rivals and that the waiver constituted State aid incompatible with the common market. The Commission calculated that the aid to be paid back by EDF amounted in total to €1.217 billion, including interest. EDF has repaid that sum to the French State.
The Court confirmed the annulment by the General Court of the Commission decision declaring that a tax measure taken by France in favour of EDF constitutes State aid
The Commission erred in law by refusing, simply because the measure was fiscal, to consider whether the French State had acted as a private investor in a market economy.
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