The Treatment of State-owned Enterprises in EU Competition Law: New Developments and Future Challenges

The Treaty on the Functioning of the European Union (‘TFEU’) provides that the European Union (‘EU’) must remain neutral in matters of ownership of companies, i.e. vis-à-vis privately and State-owned enterprises (‘SOEs’).2 This is an important issue for Member States, as some of them own a relatively large number of companies active in sectors they consider to be of strategic or public interest. The energy sector in particular is a field where the number and importance of SOEs is notable. The EU Merger Regulation3 (‘EUMR’) reiterates the principle of non-discrimination between the public and the private sector exposed in the TFEU. However, compared to private companies, SOEs may be subject to specific corporate governance models, which could make them independent or, to the contrary, controlled by the State in their commercial decision making. The EUMR therefore includes specific rules on the treatment of SOEs,4 and in particular as regards the assessment of their autonomy from the State.