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The market operator test (MEO) is a key economic test for the assessment of whether a measure grants an advantage under Article 107 TFEU. The Commission has also provided some clarifications on the notion of aid and the measures to apply the market operator test. The present contribution analyses a recent Grand Chamber case of the Court of Justice, Commission v FIH Holding and FIH Erhversbank ((C-579/16 P) EU:C:2018:159), where the complex and intricate analysis of this (economic) criterion under Article 107 TFEU was made for the recapitalisation of a credit institution in Denmark. The examination of the case gives grounds to discuss some essential elements of the MEO test: the various facets of the MEO test, the distinction between “applicability” and “application” of the test, the case of measures granted by the State as public authority and those as a market operator, the situation of previously granted aid. While the analysis critically looks at the above points raised in the judgment, it submits that the Court provides limited guidance on the interpretation of the MEO test and the way in which it should be logically framed when State measures are granted. Rather the Court seems to adopt an excessively formalistic approach and to complicate further an already complex and intricate test in EU law.
