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Oxford Law Citator
Contents
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Preliminary Material
Disclaimer
Foreword
Summary Table of Contents
Detailed Table of Contents
Table of Cases
Court of Justice of the European Union (CJEU) – Court of Justice and General Court
International Cases
European Court of Human Rights (ECtHR)
Ombudsman
World Trade Organization
Table of Legislation
EU Law
Treaties and Conventions
Directives (in chronological order)
Regulations (in chronological order)
Decisions (in chronological order)
Notices (in chronological order)
Guidelines (in chronological order)
Other Instruments
National Legislation
Italy
Spain
United Kingdom
United States
International Instruments
World Trade Organization
List of Abbreviations
List of Contributors
Main Text
Part I Rationales for State Aid Rules
Preliminary Material
Introduction
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
s.1 Objectives of Aid and States’ Motivations for Giving
s.2 Why Control State Aid and Subsidies?
A Meta-regulation of national spending policies
B State aid control as competition law
C State aid control as contribution to integration through the creation and maintenance of the internal market
D State aid control as control of public spending
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
Introduction
s.1 The Early Negotiations to Conceive the Notion of State Aid
s.2 The Pioneering Role Played by the Court of Justice
s.3 The Role of the Commission as a Rule-maker
A Development of regulatory texts
B The soft law as informal rule-making
C The distinctive importance of the Procedural Regulation
s.4 Reforms Over the Last Decade: The Shifting Landscape of State Aid Rules
A The State Aid Action Plan: Objectives and outcomes
B The State Aid Modernization initiative
Conclusion
4 The Legal Framework to Subsidies and State Aid Review
s.1 WTO Law
s.2 EU Law
A EU primary law—treaties and general principles of law
1 State aid law in the context of the Treaties
2 General principles of EU law and procedural rights
2.1 Good administration, rights of defence, and participation rights
2.2 Right to an effective legal remedy and State aid
B Derived law and delegation of powers
1 Legislation
2 Group exemption regulations
3 Administrative guidelines
4 Sector investigations and reports
5 Agreements as forms of administrative rule-making
6 Single-case decision-making
C The extent of the delegation of powers: Discretion and its limits
1 Definition and consequences
2 Limitations of discretion
2.1 The expansion of the notion of facts
2.2 Duty of care
2.3 Self-limitation of discretion by the Commission
2.4 Limitation of Commission discretion in control of Member State action
s.3 Member State Law
Conclusion
Part II The Notion of State Aid
Preliminary Material
Introduction
1 Criterion of State Origin
s.1 Direct or Indirect Granting through State Resources
s.2 Imputability of a Measure to the State
Conclusion
2 The Notion of Undertaking
s.1 Notion of Undertaking in Competition Law
The key notion of economic activity
s.2 Sector-based Notion of Undertaking
A Public policy
B Social security
C Healthcare
D Education and research
E Infrastructures
Conclusion
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
1 What are SGEI and what is their purpose?
2 What is the legal basis for SGEI?
3 Which services are SGEI?
4 Who designates SGEI?
5 Why are SGEI State aid relevant?
B The relevance of the Altmark case law
1 The early case law: Pre-Altmark cases and the Altmark case
2 Relationship between Article 107(1) and Article 106(2) TFEU
3 The Altmark Package Mark I
4 The Altmark Package Mark II
5 Summary of the system of review of State aid and public service compensation
5.1 Transport sector and public services: Overview of Regulation 1370/2007
C Sector-based examples
1 SGEI in the context of healthcare
2 SGEI in the context of broadband
D Conclusion
s.3 The Market Economy Operator Test
A Historical origins
B Identification of the hypothetical market operator ‘in normal market conditions’
C Private vendor
D The nature of judicial review of Commission decisions
E Economic appraisal
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
3.1 The inherent logic of the system and the external objectives: Evaluation of a derogation from the application of the general tax system
3.2 Practical applications of the justification by the logic of the tax system
3.2.1 De facto material selectivity and the scope of application of the three-step test
3.3 Geographic selectivity
4 Selectivity between policy choices and economic analysis
4.1 Comparing undertakings’ position in the light of the objectives of a tax measure
4.2 The coherence of national legislations: Comparison with the freedoms of movement case law
Conclusion
5 Distortion of Competition and Effect on Trade between EU Member States
s.1 Distortion of Competition
s.2 Effect on Trade between the EU Member States
s.3 De Minimis Rules
Conclusion
6 Public Procurement and State Aid
Introduction
s.1 Common Themes in State Aid and Public Procurement
A The State through the prism of State aid acquis and public procurement regulation
s.2 Financial Engagement between Public and Private Sectors
A The notion of transferring resources through the prism of State aid acquis
B The notion of public contracts through public procurement regulation
s.3 Public Services as the Ground Where State Aid Meets Public Procurement
A The notion of public services
B The treatment of financing the delivery of public services in the EU
s.4 The Root of Exclusivity in State Aid and Public Procurement
A The ordo-liberal nature of public procurement regulation
1 Public procurement as part of the European Integration
2 Contract compliance and public procurement
2.1 A rule of reason
Conclusion
7 European Structural and Investment Funds and State Aid Control: Two Policies at Odds with Each Other?
Introduction
s.1 EU Cohesion Policy and ESI Funds: Objectives and Complex Administrative Structures
s.2 State Aid Control and ESI Funds: Concepts and Objectives
A Competition policy and cohesion policy: Clash or complementarity?
B The new legal framework: Is consistency achieved?
s.3 The New Legal Framework for ESI Funds
A Ex ante conditionalities, national administrative capacity building, and State aids
B Financial instruments in the ESI Funds and compliance with State aids
C Alignment with the SAM objectives
s.4 The Notion of State Aid and ESI Funds
A State resources and imputability to the State: Margin of discretion of the Member States in the implementation process
B Implications of the classification of ESI Funds as ‘State aids’: Aid intensities and cumulation rules
s.5 WTO and Union Subsidization
A CAP and export subsidies
B The Agreement on Subsidies and Countervailing Measures and the Agriculture Agreement (AG)
C WTO ruling on sugar and its implications
Conclusion
Part III Rules for the Compatibility of State Aid
Preliminary Material
Introduction
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
Introduction
s.1 Aid of a Social Character Granted to Individual Consumers
s.2 Aid to Make Good the Damage Caused by Natural Disasters or Exceptional Occurrences
s.3 Aids Granted to Certain Areas of Germany Affected by the Division of That Country
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
1 Sectoral scope
2 Material scope: Types of regional aid
2.1 Initial investment and operating aid
2.2 Stricter treatment of large enterprises
2.2.1 Eligible investments in ‘c’ areas
2.2.2 ‘Initial investment in favour of new economic activity’
2.2.3 ‘Diversification of an existing establishment into new products’ and ‘new process innovations’
3 Geographical scope
3.1 ‘a’ regions
3.2 ‘c’ regions
3.3 Regional aid maps
3.4 Maximum aid intensities
B Architecture of the compatibility rules (GBER, RAG)
1 Delineation between GBER and RAG
2 Architecture of the compatibility assessment
3 General compatibility conditions in the GBER
3.1 Investment aid (Article 14 GBER)
3.1.1 Eligible costs and aid intensities
3.1.2 Compatibility conditions
3.1.3 Incentive effect
3.2 Operating aid (Article 15 GBER)
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
6.1 Manifest negative effects
6.2 Negative effects: Balancing test
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
1 The Banking Communication
2 The Recapitalization Communication
3 The Impaired Assets Communication
4 The Restructuring Communication
5 The temporary framework for State aid measures to support 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
1.1 Public funding of non-economic activities
1.2 Public funding of economic activities
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
1 Sectoral scope
2 Material scope: Types of R&D&I aid
D Architecture of the rules
1 Delineation between the GBER and R&D&I Framework
2 General compatibility conditions (GBER)
2.1 Exclusions
2.2 Interlinks with EU funds managed by the Commission (eg Horizon 2020)
2.3 Eligible costs and aid intensities
2.3.1 Eligible costs
2.3.2 Aid intensities
E Application of the common principles and the balancing test
1 Contribution to a common objective
2 Need for State intervention (market failure)
3 Appropriateness of the aid measure
4 Incentive effect
5 Proportionality
6 Avoidance of undue negative effects
6.1 Distortions of the product market
6.2 Location effects
7 Transparency of aid
F Rescue and restructuring aid
G Conclusion
s.4 The Cultural Derogation (Article 107(3)(d) TFEU)
A Introduction
B The classification of State aids under Article 107(1) TFEU and the cultural derogation
C The cultural State aid derogation and its (residual) application to the broadcasting sector
D The cultural derogation and films
E Conclusion
4 Transport Aid
A Different legal bases: Article 93 TFEU (land) vs Articles 106 and 107 TFEU (air and maritime)
B Land transport
1 Secondary law in land transport: Regulations (EC) Nos 1370/2007 and 1192/1969
2 Guidelines and frameworks
3 Direct application of Article 93 TFEU
C Air and maritime transport
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
A Transparency
B Evaluation
C Monitoring and withdrawal of the benefit of the GBER
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
Introduction—EU State Aid Procedure: A Shakespearean Intrigue
Overall Structure of Part IV
1 The Administrative Procedure—the Privileged Dialogue
Introduction
s.1 The Addressee Factor
s.2 Dual Roles
s.3 The ‘One Size Fits All’ Approach
s.4 The Impact of the State Aid Modernization Reform
s.5 The (Lack of) Impact of the Charter of Fundamental Rights
Conclusion
2 The Different Stages in the State Aid Procedure
s.1 Categories of State Aid
A Notified vs non-notified, or unlawful, aid
B New aid vs existing aid
s.2 Initial Stages of the State Aid Inquiry
A Preliminary investigation for notified measures
1 Pre-notification: Key features
2 Preliminary investigation: Key features
3 Preliminary investigation: Role of third parties
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
(i) Complex structure of the measure and incompleteness of the Commission decision
(ii) Uncertainty of legal basis
(iii) Compatibility with other Treaty provisions
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
A The rules prior to the 2013 Modernization Package
B Information powers after the 2013 Modernization Package
1 Powers to obtain market information
2 Sector inquiries
3 Conclusion
s.5 Misuse of State Aid
A Parts of the compatibility decision prone to misuse
B Potential for misuse—types of State aid
s.6 The Formal Investigation
A The decision opening a formal investigation
B Access to the file
C Closure of the formal investigation—withdrawal of unlawful aid
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
A General principles on recovery
1 Compliance with national procedural rules
2 Obligation to take all necessary measures
3 Application of the principle of loyal or sincere cooperation
3.1 Relationships between the Commission and national courts: The Mediaset case
3.2 Strengthened role of the Commission: The new powers under the SAM initiative
B Exceptions to the general principles on recovery
1 Exception 1: General principles of EU law
2 Exception 2: Prescription period for recovery
3 Exception 3: Absolute impossibility to recover the aid
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
1 Preliminary remarks
2 The concept of ‘direct concern’
3 The concept of ‘individual concern’
3.1 Introductory remark
3.2 Individual concern regarding phase I decisions—the importance of procedural guarantees granted in phase II
3.3 Individual concern regarding phase II decisions
3.3.1 Standing of beneficiaries of individual aid
3.3.2 Standing of competitors of beneficiaries of individual aid or aid schemes
3.3.3 Standing of trade associations representing competitors or beneficiaries of aid
3.3.4 Standing of (actual/potential) beneficiaries of an aid scheme
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
1 Before (or without) notification
2 After initiation of the formal investigation procedure
3 Injunctions
4 Final decisions
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
A Objective of recovery orders
B National procedural rules apply
C Impossibility to recover
D The Deggendorf principle
E Interest and compound interest
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
A Historical evolution
B Rationale for controlling subsidies
C Dispute settlement and remedies
s.3 The Definition and its Issues: A Matter of Scope
A Financial contribution, income/price support, and regulatory measures
B Taxation
C Provision of goods/services, purchases of goods
D What is ‘government’?
E The benefit
s.4 Specificity
s.5 Categories of Subsidies
A Prohibited subsidies
B Actionable subsidies
C Non-actionable subsidies
s.6 Countervailing Duties: Substance and Procedure
A Substantive requirements
B Procedural steps
s.7 Specific Sectors
A Agriculture
B Energy
C Services
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
A History
B Overview of the EU Anti-subsidy rules
C EU basic Anti-subsidy regulation and the SCM Agreement from a comparative perspective
s.2: Use of the Anti-subsidy Instrument Since 1995
A Overview
B Developments and trends
s.3 Key Elements of a Countervailing Subsidy—the EU Perspective
A Financial contribution by a government
1 Government or public body
2 Forms of financial contribution
2.1 Direct and indirect transfer of funds, revenue foregone, provision of goods and services
2.2 Government entrustment and direction, payments via a funding mechanism
B Specificity
1 Subsidies specific to an enterprise or industry or a group of enterprises or industries
2 Regional specificity
3 Export contingent subsidies
3.1 Duty Drawback Schemes
3.2 EOUs and Special Economic Zones (SEZs)
3.3 Import duty exemption
3.4 Export credits
3.5 Tax exemptions
4 Import substitution subsidies
C Benefit and subsidy margin calculation
1 Calculation of subsidy amounts in practice
2 Subsidy margin calculation
3 Instances when subsidies were not countervailed
s.4: Injury, Causation, and Union Interest Assessments
A Injury and causation
B Union interest
s.5: Remedies in EU Anti-subsidy Cases, Imposition, and Duration of Measures
A Remedies in AS cases
B Imposition of AS duties
1 Individual and residual duty rates
2 Duty imposition and its modalities
C Reviews
s.6: Procedural Aspects and Judicial Review of EU Anti-subsidy Measures
A Procedural aspects
B Judicial review of 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
Further Material
Index
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Part IV Procedures before the Commission, Preliminary Material
Edited By: Herwig C. H. Hofmann, Claire Micheau
From:
State Aid Law of the European Union
Edited By: Herwig C. H. Hofmann, Claire Micheau
Content type:
Book content
Product:
Oxford Competition Law [OCL]
Published in print:
11 August 2016
ISBN:
9780198727460
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