The EU state aid rules are directed to Member States. In situations where public undertakings take measures which can be seen as conferring an advantage on another undertaking, the question can arise whether that measure should in fact be imputed to the Member State which owns the public undertaking. Against this background the Court of Justice has developed jurisprudence as to the imputability to the State of measures taken by undertakings.
In the seminal case Stardust Marine the Court of Justice ruled in 2002 that in order to impute a certain measure taken by an undertaking to the State, "the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures by the public undertaking". The Court of Justice identified a set of indicators which can assist in establishing whether the public authorities must be regarded as having been involved in the adoption of a measure. In the context of a long-running case concerning guarantees granted by the Port of Rotterdam, the Dutch Supreme Court (Hoge Raad) considered that it was unclear on the basis of the indicators identified by the Court of Justice whether a measure can be imputed to the State on the basis of general, institutional (or "organic") indicators or whether it needs to be established that the State was in fact involved in the adoption of the specific measure at hand. The Hoge Raad suspended the case and asked for a preliminary ruling to the Court of Justice.
The facts of the case showed that the director of the Port of Rotterdam not only acted alone when granting the guarantees but that he also intentionally kept secret this course of action, while ignoring the relevant Articles of Association requiring him to involve the Supervisory Board. The Hoge Raad considered that it had to be assumed that the State (the municipality of Rotterdam) would not have supported the decision to grant the guarantees had it been properly consulted.
On 17 September 2014, the Court of Justice rendered judgment in Commerz Nederland (Case C-242/13). The Court of Justice considered that the organisational links between public undertakings and public authorities tend to demonstrate, in principle, that the public authorities were involved or that it was unlikely that they were not involved in the provision of a measure, such as the decision to grant guarantees. Moreover, the fact that a director of a public undertaking acts improperly and outside the boundaries of his competence, does not, of itself, exclude that the measure can be imputed to the State. The Court of Justice effectively held that all factual circumstances concerning a specific measure are relevant, including the possibility that the public authority would have opposed the measure had it been aware of the intention to adopt it. With reference to the specific facts concerning the decision to grant the guarantees, the Court of Justice held that they could exclude imputability to the State provided that it may be inferred from those facts that the guarantees at issue were provided without the involvement of the State.
