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State Aid Law of the European Union edited by Hofmann, Herwig C H; Micheau, Claire (11th August 2016)
- Preliminary Material
- Main Text
- Part I Rationales for State Aid Rules
- Preliminary Material
- 1 State Aid Review in a Multi-level System: Motivations for Aid, Why Control It, and the Evolution of State Aid Law in the EU
- 2 Evolution of Aid in the EU: Classifying Different Types of Countries, and the Financial and Economic Crisis
- 3 Evolution of State Aid Rules: Conceptions, Challenges, and Outcomes
- 4 The Legal Framework to Subsidies and State Aid Review
- Part II The Notion of State Aid
- Preliminary Material
- 1 Criterion of State Origin
- 2 The Notion of Undertaking
- 3 Criterion of Advantage
- s.1 Notion of Advantage in State Aid Law
- s.2 Assessing the Advantage in State Aid: Altmark Case Law and Services of General Economic Interest (SGEI)
- A Advantage in the context of SGEI
- B The relevance of the Altmark case law
- C Sector-based examples
- D Conclusion
- s.3 The Market Economy Operator Test
- Conclusion
- 4 Criterion of Selectivity
- s.1 Selectivity as a General Canon
- s.2 The Discretion of National Authorities
- s.3 Selectivity in Tax Matters
- A Tax law and selectivity: Some general issues
- B Case study of the three-step (derogation) test as regards the different types of selectivity
- 1 Material selectivity (in particular, in fiscal matters)
- 2 The elaboration and application of the derogation test: Definition of the reference system and assessment of the treatment of the undertakings concerned
- 3 Justification by the logic of the tax system
- 4 Selectivity between policy choices and economic analysis
- Conclusion
- 5 Distortion of Competition and Effect on Trade between EU Member States
- 6 Public Procurement and State Aid
- 7 European Structural and Investment Funds and State Aid Control: Two Policies at Odds with Each Other?
- Part III Rules for the Compatibility of State Aid
- Preliminary Material
- 1 General Theory on Compatibility of State Aid
- s.1 On the Distribution of Powers
- s.2 On the Burden of Proof for Compatibility
- s.3 On the Broad Discretion of the Commission and its Limits
- s.4 On the Application of Rules on Compatibility Ratione Temporis
- s.5 On the Assessment of State Aid Directly on the Basis of Article 107(3)(c) TFEU
- s.6 On the Discretion of the Commission under Article 106(2) TFEU
- s.7 On the Relationship between Regulation and State Aid
- s.8 On the Relationship with Other Rules of the Treaty
- s.9 On the Role of Economic Analysis and Reform and Modernization
- 2 De Jure Compatible Aid under Article 107(2) TFEU
- 3 Aid Subject to a Discretionary Assessment under Article 107(3) TFEU
- Introduction
- s.1 Regional Aid (Article 107(3)(a) and (c) TFEU)
- A Scope of regional aid
- B Architecture of the compatibility rules (GBER, RAG)
- C Application of the common principles and the balancing test under RAG 2014
- 1 Contribution to a common objective
- 2 Need for State intervention (market failure vs equity objective)
- 3 Appropriateness of the aid measure
- 4 Incentive effect
- 5 Proportionality
- 6 Avoidance of undue negative effects
- 7 Transparency of aid
- 8 Overview of the application of the common principles in the GBER and RAG
- D Conclusion
- s.2 Rules on Economic and Financial Crisis (Article 107(3)(b) TFEU)
- A Introduction
- B The approach of the Commission in the assessment of the compatibility of State aid in the financial sector before the crisis of October 2008
- C The reaction to the 2008 crisis: The temporary framework to support financial institutions and access to finance
- D The trade-off between financial stability and competition law in the temporary framework
- E The modifications of the temporary framework
- F The application of the temporary framework and its scrutiny before the General Court (GC)
- G The New Banking Communication of August 2013: Bridging the gap between the crisis and a long-term approach
- H Concluding remarks
- s.3 Research, Development, and Innovation (R&D&I) Aid (Article 107(3)(c) TFEU)
- A Introduction
- B Delimitation of the notion of State aid in the R&D&I field
- 1 Funding of research organizations and research infrastructures
- 2 Indirect aid to undertakings through publicly funded research organizations and infrastructures
- 3 Research on behalf of undertakings (contract research or research services)
- 4 Collaboration with undertakings
- 5 Public procurement of research and development services
- C Scope
- D Architecture of the rules
- E Application of the common principles and the balancing test
- F Rescue and restructuring aid
- G Conclusion
- s.4 The Cultural Derogation (Article 107(3)(d) TFEU)
- 4 Transport Aid
- 5 Aid Exempted from Notification to the Commission: The General Block Exemption Regulation (GBER)
- s.1 Introduction
- s.2 Safeguards to Ensure a Positive Balance of the Aid Exempted from Notification
- s.3 Exclusion of Potential Distortive Aid Measures from the Scope of GBER
- s.4 General Compatibility Criteria under GBER (Chapter I of the GBER)
- s.5 Newly Introduced Categories in the GBER
- A Aid to mitigate damages caused by certain natural disasters
- B Social aid for transport concerning people living in remote regions
- C Aid for broadband infrastructures
- D Aid for culture, heritage conservation, and audio-visual
- E Aid for sport and multifunctional recreational infrastructure
- F Local infrastructure
- s.6 Conclusion
- Part IV Procedures before the Commission
- Preliminary Material
- 1 The Administrative Procedure—the Privileged Dialogue
- 2 The Different Stages in the State Aid Procedure
- s.1 Categories of State Aid
- s.2 Initial Stages of the State Aid Inquiry
- A Preliminary investigation for notified measures
- B The preliminary examination: Non-notified (unlawful) aid
- 1 Preliminary examination of unlawful aid: Key features
- 2 Preliminary investigation for unlawful aid: Role of third parties
- 2.1 The plus factors and the burden of proof on third parties to make a case of breach of their procedural rights
- 2.2 Commission discretion in conducting the investigation as a limitation to third-party procedural rights
- 2.3 Conclusion on third-party rights in the preliminary investigation phase in case of unlawful aid
- s.3 The Legal Status of the Complainant and the Commission’s Ability to Reject Complaints
- s.4 Information Injunctions
- s.5 Misuse of State Aid
- s.6 The Formal Investigation
- 3 Recovery of Unlawful Aid and the Role of National Courts
- s.1 Introduction
- s.2 Legal Framework
- s.3 General Principles of EU Law and their Exceptions
- Conclusion
- Part V Judicial Review before the Court of Justice of the European Union
- 1 Introduction: EU State Aid Litigation in a Quasi-Federal System
- 2 Direct Actions and Judicial Review before the Union Courts
- s.1 Introductory Remarks
- s.2 State Aid Measures Amenable to Judicial Review under Article 263 TFEU
- A Types of applicants and of challengeable acts
- B The notion of challengeable act
- 1 The requirement of producing autonomous binding legal effects from the perspective of Member States/institutions as well as natural and legal persons
- 2 Challenges of intermediate or preparatory acts
- 3 Challenges of Commission decisions to initiate the formal investigation procedure
- 4 Challenges of Commission letters informing on the rejection of a State aid complaint
- s.3 The Requirements of Locus Standi
- A The concept of (legal) interest in bringing proceedings
- B The concepts of direct and individual concern under Article 263(4) TFEU
- C Standing to challenge regulatory acts not entailing implementing measures according to Article 263(4) third limb TFEU
- D Admissibility criteria governing the action for failure to act under Article 265 TFEU
- E Admissibility criteria governing the action for damages under Articles 268 and 340(2) TFEU
- s.4 Scope and Degree of Judicial Review on the Merits, Notably in Annulment Actions
- A Grounds of review and their legally binding nature for the Union judge
- B Comprehensive vs limited scope of judicial review
- 1 Objective notion of State aid vs complex assessments
- 2 Judicial review with respect to the Altmark criteria
- 3 Manifest error: Plausibility check and standard of evidence
- 4 Judicial review of discretionary assessments governed by ‘soft law’
- 5 Judicial review of conditions/commitments attached to compatibility decisions
- C Distinction between review on the substance and of procedural legality, in particular on the basis of the duty to state reasons
- D Scope and degree of judicial review with regard to (phase I) decisions not to raise objections and opening decisions
- E Judicial review in the context of actions for failure to act under Article 265 TFEU
- F Judicial review in the context of actions for damages under Article 268 in combination with Article 340(2) TFEU
- 3 Decentralized Judicial Review and Enforcement of EU State Aid Rules
- s.1 Union Institutions Involved—‘Centralized’ Enforcement
- s.2 Decentralized Enforcement—National Courts
- s.3 The Standstill Clause in Article 108(3) Last Sentence TFEU
- A Direct effect
- B Consequences for the national court
- C The development of the competences of the national judge in the course of a State aid procedure
- D Consequences of the annulment of an approval of lawful measures
- E Are alternative measures instead of ordering recovery allowed?
- F Procedures to be applied
- s.4 Recovery Decisions
- s.5 Block Exemption Regulations
- Part VI Global Approach of State Aid Law—WTO Law and EU Trade Defence Instruments
- Preliminary Material
- 1 WTO Subsidy Laws: The International Regulation of State Aid
- s.1 Introduction: Importance of WTO Subsidy Laws
- s.2 Brief Outline of WTO Subsidy Laws: Historical Evolution, Regulatory Framework, Rationales
- s.3 The Definition and its Issues: A Matter of Scope
- s.4 Specificity
- s.5 Categories of Subsidies
- s.6 Countervailing Duties: Substance and Procedure
- s.7 Specific Sectors
- s.8 Transparency
- s.9 Conclusion: Lessons and Conflicts
- 2 Anti-subsidy Law and Practice of the European Union
- Introduction
- s.1: History and Basics of the EU Anti-subsidy Legislation
- s.2: Use of the Anti-subsidy Instrument Since 1995
- s.3 Key Elements of a Countervailing Subsidy—the EU Perspective
- s.4: Injury, Causation, and Union Interest Assessments
- s.5: Remedies in EU Anti-subsidy Cases, Imposition, and Duration of Measures
- s.6: Procedural Aspects and Judicial Review of EU Anti-subsidy Measures
- Conclusion
- Annex 1 Correlation Table between the SCM Agreement and the EU Basic Anti-subsidy Regulation
- Annex 2 EU Anti-subsidy Cases Since 1995
- Part I Rationales for State Aid Rules
- Further Material
