In Case T-257/18, Iberpotash S.A. v European Commission, CJEU General Court Judgment on 16 January 2020, the first issue was whether there was a transfer of State resources.  The Court said:-

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In Schofield v Jones (2019) EWHC 803 (Ch) the Court exercised its power under Section 306 of the Companies Act 2006 to direct the holding of a Company General Meeting with a quorum of only one. The purpose of the Meeting was to remove one of two members as one of four Directors. That Director was alleged to be in breach of fiduciary duty and had lost the confidence of the other Directors.  That Director can and had thwarted the holding of a General Meeting by not

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Case C-405/16P, Germany v Commission, CJEU Judgment on 28 March 2019, is concerned with aid supporting renewable energy. The CJEU said:-

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The Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2019, S.I. 2019/396, make amendments to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146) (“the 2003 Regulations”). The technical amendments define the investments that shall not be treated as capital expenditure within local authority accounts. They also amend the categories of local authority investments in relation to which fluctuations in fair value are subject to specific accounting treatment.

Under the 2003 Regulations, local authorities must follow CIPFA’s Code of Practice on Local Authority Accounting in the United Kingdom, as amended or reissued in every financial year. The Government can modify local authorities’ duties to follow the proper practices set out in the Code on Local Authority Accounting, by including specific provisions in the 2003 Regulations. It also has a specific power to provide through regulations which expenditure of local authorities is, or is not, accounted for as capital expenditure. The 2003 Regulations make provision for capital finance and accounts under Part 1 of the Local Government Act 2003 (“the 2003 Act”). Regulation 25 of the 2003 Regulations provide for expenditure which is, and which is not, to be treated as capital expenditure for the purposes of Chapter 1 of Part 1 of the 2003 Act. Since 2004, Regulation 25 has excluded local authority investments in money market funds from treatment as capital expenditure in local authority accounts. Regulation 30K of the 2003 Regulations provides for specific accounting treatment for fair value gains and losses of local authority investments in pooled investment funds, including money market funds.

The Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2018, SI 2018/1207 amend the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (the “2003 Regulations”). Regulation 3 amends regulation 23 of the 2003 Regulations in order to allow a local authority to use capital receipts to make a payment to an employee or officer under new regulation 30AA. Regulation 4 inserts a new regulation 30AA into the 2003 Regulations.

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The Government has announced that it intends to:-

• Require local authorities to account for fair value movements in financial instruments in accordance with proper practices as set out in the Code on Local Authority Accounting published by CIPFA
• Introduce a mandatory statutory override requiring local authorities to reverse out all unrealised fair value movements resulting from pooled investment funds. This will be effective from financial year commencing 1 April 2018
• Extend the proposed period for which the statutory override applies to five years. The Government will keep use of the override under review
• Require Local Authorities to disclose the net impact of the unrealised fair value movements in a separate unusable reserve throughout the duration of the override
• Introduce a 2 year extension of the unequal pay regulation.

There will be no override for the expected loss model or for the extra disclosures that the new standard requires. Read more »

In R (Sky Blue Sports & Leisure Ltd) v Coventry City Council (2018) EWCA Civ 2252 the Court of Appeal rejected a challenge brought by the owners of Coventry City Football Club against the City Council. The Council had a half-owned subsidiary, Arena Coventry Limited (“ACL”). ACL has operated the Ricoh Arena in Coventry, where the Football Club play home games. The Claimants sought to challenge by judicial review the Council’s decision to extend ACL’s lease of the Arena.

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The Local Authorities (Capital Finance and Accounting) (Wales) (Amendment) Regulations 2018 (SI 2018/325 (W.61)) amend the Local Authorities (Capital Finance and Accounting) (Wales) Regulations 2003 by: introducing new definitions of “securitisation transaction” and “money market fund”; providing that a securitisation transaction must be treated as a “credit arrangement” for the purposes of the Local Government Act 2003 s.7; making a substitution to provide for the calculation of the cost of a securitisation transaction; replacing the term “fixed asset” with the current terminology in local government accounting practice; making it clear that sums received by the local authority in respect of the redemption of a bond on its maturity, or disposal of a bond, must not be treated as a capital receipts, unless the bond was acquired before 1 April 2018 and the expenditure on acquisition was treated as “capital expenditure”; inserting a new reg.8A which provides that the value of any consideration received as a result of a securitisation transaction by a local authority must be treated as a capital receipt; removing the requirement that only capital receipts received in respect of a disposal of an interest in land other than housing land may be used to meet the costs of, or incidental to, the disposal, provided such costs do not exceed 4% of the capital receipt arising from the disposal; removing the requirement for expenditure by local authorities on the acquisition of loan capital to be treated as “capital expenditure”; extends the ability of local authorities to defer charging liabilities for back pay due to equal pay claims to revenue account until the date on which the local authority must pay that back-payment; and removing the reference to one of the documents identified as constituting “proper practices” for the purposes of the Local Government Act 2003 s.21.

Does a transfer of property-related assets from the public to the private sector constitute State Aid. This was the issue before the Grand Chamber of the ECJ in Case C-579/16 P, FIH Holding A/S v FIH Erhversbank A/S, Judgment on 6 March 2018.  The Court reiterated:

(1) Classification of a measure as “State aid” for the purposes of Article 107(1) TFEU requires all of the conditions set out in that provision to be fulfilled;

(2) First, there must be an intervention by the State or through State resources;

(3) Second, the intervention must be liable to affect trade between Member States;

(4) Third, it must confer a selective advantage on the recipient;

(5)  Fourth, it must distort or threaten to distort competition; Read more »

Case C-127/16 P, European Commission v French Republic, ECJ Judgment on 7 March 2018, has concerned unlawful State Aid by SNCF in the context of restructuring and recapitalisation and the application of the private investor test to an assignment of debts en bloc.   The Court stated as follows:-

(1) In interpreting a provision of EU law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part;

(2) The operative part of a Union act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption;

(3) State aid law is not concerned with the legal forms that transactions may take, but rather focuses on their economic reality; Read more »