- occurrence or existence together or in connection with one another
- Concomitance criterion: Bouygues Telecom argues that the concomitance principle has not been complied with.
- The French authorities maintain that the recapitalisation operation carried out on 24 March 2003 complies with the concomitance principle.
- Second, it has to be assessed whether the investment by all parties concerned take place at the same time (‘concomitance’).
- This approach, based on the concomitance of contributions, has been regularly upheld by the Court of First instance and the ECJ .
- The private shareholder participation is significant at 40 %, which has been held by the Court of Justice to be in keeping with the concomitance principle.
- Hence, in the present case, the fact that a banking syndicate undertook to underwrite the transaction cannot be taken as a basis for concluding that the concomitance principle is complied with.
- The concomitance of these interventions in combination with the elements referred to above make it unlikely that the public authorities were not involved in the decisions of CDC and Holding Communal to participate in the Dexia capital increase.
- Lastly, the Commission observes that only one investor, the State holding company Fintecna, will participate in AZ Servizi's capital increase so that the question of concomitance does not arise.
- In the opening decision , the Commission acknowledged that the municipality invested de jure at the same time as the private investors in the partnership GNA, but expressed some preliminary doubts about the de facto concomitance of the investments of all GNA shareholders, as the municipality had already undertaken initiatives and investments before a final agreement with all other investors was concluded.
- First, the Dutch authorities reiterate their position that the doubts of the Commission regarding ‘concomitance’ and ‘identical terms and conditions’ originating from the pre-investments of the Amsterdam municipality have been properly addressed by the reimbursement of the relevant pre-financed costs by GNA.
- On this basis, a capital contribution from public funds must be regarded as satisfying the market economy investor test and not constituting State aid if, inter alia, it was made at the same time as a significant capital contribution on the part of a private investor made in comparable circumstances (the ‘concomitance’ test) .
- Therefore, the Dutch authorities assert that the preliminary doubts of the Commission regarding ‘concomitance’ and ‘identical terms and conditions’ originating from the pre-investments of the Amsterdam municipality are properly addressed by the above-mentioned explanations provided and by the reimbursement of the relevant pre-financed costs to GNA.
- It also cast doubts concerning the second recapitalisation of EUR 8,75 million so far as concerns observance of the principles of concomitance of the individual and public investment and the similarity of the subscription conditions within the meaning of the case-law.
- The Commission would stress, moreover, that, in applying the concomitance criterion it cannot base the assessment of the State's conduct on the conduct of other economic operators in so far as their conduct and the market were influenced by the State's declarations.