2.3.0 Introductie

Documentgegevens:

mr. drs. R.E. van Lambalgen, datum 01-12-2017

Datum: 01-12-2017
Auteur: mr. drs. R.E. van Lambalgen
JCDI: JCDI:ADS586999:1
Vakgebied(en): Financieel recht / Europees financieel recht
Mededingingsrecht / EU-mededingingsrecht

In the previous section, the economics of State aid have been explained. In the present and following sections, the legal aspects of State aid will be discussed. The State aid rules can be found in the Treaty on the Functioning of the European Union (TFEU). The State aid rules date from the very beginning of the European treaties. There have been several treaty changes and the provisions on State aid have been renumbered several times, but their contents have (largely) remained the same.1 The substantive State aid rules are laid down in Article 107 TFEU. Article 107, paragraph 1, TFEU states that:

“Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Mem-ber States, be incompatible with the internal market.”

For a measure to fall under the definition of “State aid”, six criteria have to be fulfilled:

1): The aid must be granted by the state or through state resources
2): The recipient of aid must be an undertaking
3): The aid must confer an advantage to the recipients
4): The advantage must favour certain undertakings or economic activities
5): The aid must affect trade between Member States
6): The aid must distort competition in the common market

These criteria are cumulative. This means that a measure only constitutes State aid if all these criteria are met. It should also be noted that although I have distilled six criteria from Art. 107(1) TFEU, some authors only distil five criteria.2 Furthermore, the Court usually identifies four criteria.3

It is important that the notion of “State aid” is clearly defined. An overly broad interpretation of “State aid” would mean that many measures fall under the scrutiny of the Commission.4 This would result in an enormous administrative burden for both the Member States and the Commission. As a consequence, the effectiveness of State aid control will be reduced.

In that regard, it is worth stressing that the criteria of Article 107(1) TFEU have been interpreted and clarified in the case-law of the Court. In the context of the State aid Modernisation (SAM), the Commission announced its intention to provide clarification and better explanation of the notion of State aid.5 This led to the Commission Notice on the notion of State aid.6 Notwithstanding this Commission Notice, the Court has the final say on the interpretation of the notion of “State aid”. As the following subsections clearly illustrate, the Court has had an important role in clarifying the notion of “State aid”.

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The original provisions were Article 92 and 93 of the Treaty establishing the European Economic Community (EEC Treaty). Following the Treaty of Maastricht (which entered into force on 1 November 1993), the EEC Treaty was renamed as the Treaty establishing the European Community (EC Treaty) and renumbered: the State aid rules were laid down in Article 87 and 88 EC. The State aid provisions were renumbered again on 1 December 2009, when the Treaty of Lisbon entered into force. Following this treaty, the EC treaty was renamed as the Treaty on the Functioning of the European Union (TFEU) and renumbered. The State aid rules are now laid down in Article 107 and 108 TFEU.

For instance, Adriaanse (2006, p. 19) identifies five criteria. He treats the criterion that the aid must favour “certain undertakings” as a single criterion, while I have separated it into two distinct criteria: “certain” (i.e. criterion 4) and “undertaking” (i.e. criterion 2).

See, for instance: Case C-677/11, para. 25: “Article 107(1) TFEU makes that incompatibility subject to the confirmation that four conditions have been met. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition.”

Prek & Lefevre 2012, p. 335. See also: Lopez 2010, p. 807-819. Hancher 2003, p. 365-373.

SAM, para 23a.

Communication from the Commission – Commission Notice on the notion of State aid pursuant to Article 107(1) TFEU. NB: the Commission first published a Draft Notice.