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Part II The Notion of State Aid, 4 Criterion of Selectivity

Viktor Kreuschitz, Hanns Peter Nehl

From: State Aid Law of the European Union

Edited By: Herwig C. H. Hofmann, Claire Micheau

From: Oxford Competition Law (http://oxcat.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 15 January 2021

Selective distribution agreements — State aid

This chapter addresses the criterion of selectivity. The need to ascertain the selectivity of a measure in order to determine whether it constitutes a State aid derives directly from the text of Article 107(1) TFEU. Intuitively, it is actually the very fact that a measure favours only some of the market players that makes it apt to undermine the existence of a level playing field. Therefore, the ‘selectivity’ character seems to be conceived as a means by which a given measure distorts or threatens to distort competition. Article 107(1) TFEU seems to exclude from its scope general measures which are not selective but which may nevertheless be capable of distorting or threatening to distort competition; such general measures should not be qualified as a State aid. Therefore, where an anti-competitive effect of a measure is detected, it can be considered as selective only if, in its functioning, it favours certain undertakings or the production of certain goods.

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