Einde inhoudsopgave
State aid to banks (IVOR nr. 109) 2018/2.3.4
2.3.4 Criterion 4: The advantage must favour certain undertakings or economic activities
mr. drs. R.E. van Lambalgen, datum 01-12-2017
- Datum
01-12-2017
- Auteur
mr. drs. R.E. van Lambalgen
- JCDI
JCDI:ADS591761:1
- Vakgebied(en)
Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht
Voetnoten
Voetnoten
Case C-143/99 (Adria-Wien), para. 35.
Case T-55/99, para. 39; Case C-241/94 (France v Commission), para. 24; Case C-200/97 (Ecotrade), para. 40 and 41; Case C-75/97 (Belgium v Commission), para. 26.
Gebski 2009, p. 92.
Notwithstanding these clarifications, it has been argued in the literature that the concept of selectivity is still far from clear. See, for instance: Bartosch 2010, p. 729-752.
See Case T-55/99, para. 40: “The fact that the aid is not aimed at one or more specific recipients defined in advance, but that it is subject to a series of objective criteria pursuant to which it may be granted, within the framework of a predetermined overall budget allo-cation, to an indefinite number of beneficiaries who are not initially individually identified, cannot suffice to call in question the selective nature of the measure and, accordingly, its classification as State aid within the meaning of Article 92(1) of the Treaty. At the very most, that circumstance means that the measure in question is not an individual aid. It does not, however, preclude that public measure from having to be regarded as a system of aid con-stituting a selective, and therefore specific, measure if, owing to the criteria governing its application, it procures an advantage for certain undertakings or the production of certain goods, to the exclusion of others.”
See C-143/99 (Adria-Wien), para. 48: “Neither the large number of eligible undertakings nor the diversity and size of the sectors to which those undertakings belong provide any grounds for concluding that a State initiative constitutes a general measure of economic policy.”
A State measure which benefits all undertakings in national territory, without distinction, cannot constitute State aid.1 Only measures that favour certain undertakings or economic activities can be considered State aid. This is known as the “selectivity-criterion” or “specificity-criterion”. This criterion is very understandable from the rationale of State aid control. Aid measures that favour only certain undertakings distort the level playing field. They affect the balance between the beneficiary and its competitors.
The Court formulated the ‘selectivity-criterion’ as follows:
“It should be observed that the specific nature of a State measure, namely its selective application, constitutes one of the characteristics of State aid within the meaning of [Article 107(1) TFEU]. In that regard, it is necessary to determine whether or not the measure in question entails advantages accruing exclusively to certain undertakings or certain sectors of activity.”2
Measures that meet the selectivity-criterion are capable of being categorised as State aid. There are several ways in which the selectivity-criterion is met. Firstly, individual aid is selective. Secondly, aid that is granted to certain classes of undertakings meets the selectivity-criterion. Thirdly, aid that is granted to certain sectors of the economy is selective. Sectoral aid has always been considered by the Court as selective.3 Fourthly, aid that is granted to certain regions is selective.
Selective measures are thus capable of being categorised as State aid. General measures, on the other hand, fall outside the scope of the State aid rules. A general measure means that the measure is open to all undertakings. It can be difficult to draw a line between selective measures and general measures. In the case-law of the Court, some clarifications can be found.4 First of all, discretion is an important factor when assessing the selectivity of an aid measure. When a public authority has discretion in granting aid, then the measure – even though it is of a general nature – may fall under the scope of Article 107(1) TFEU. Furthermore, the fact that there is no prior identification of the aid beneficiaries does not preclude the selective nature of the measure.5 In addition, the fact that a large number of undertakings are eligible for the aid measure does not mean that the aid measure is not selective.6
The question whether a measure is general or selective often occurs with respect to tax measures. Taxation is usually a general measure, but a preferential tax treatment could be selective.