On the Qualification of Municipal Authorities as Undertakings · Case C-656/20 P Hermann Albers eK v European Commission · Annotation by Anna Panarella

Abstract

On 24 March 2022 the Court of Justice of the European Union (CJEU) in Case C-656/20 P Hermann Albers v European Commission issued a ruling on whether the transfer of public funds between public authorities constitutes State aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union. The main issue underpinning this case is the qualification of the municipal transport authorities receiving funds as ‘regulators’ or ‘undertakings’ in light of their ownership interests in local transport enterprises. The case provides an opportunity to investigate the boundaries of the notion of ‘undertaking’ under EU competition and State aid law. To this end, the analysis focuses, on the one hand, on the constitutive elements of the notion at issue, and, on the other hand, it takes into consideration the notion of ‘emanation of a State’ that can be used for the correct qualification of complex entities performing multiple activities at the same time. The analysis shows that State ownership alone has no bearing on whether a certain public entity qualifies as an undertaking or not.