EU State Aid Control ; what EU State Aid Control ; what is the Commission is the Commission

supposed to control ? supposed to control ? LondonLondon

11 March 201511 March 2015

Marc van der WoudeMarc van der Woude

IntroductionIntroduction

I. The place of State aid rules in the Treaty I. The place of State aid rules in the Treaty

II. Four recent issuesII. Four recent issues

1, Fiscal differentiation1, Fiscal differentiation

2, Private investor test 2, Private investor test

3, State aid law and other areas of law3, State aid law and other areas of law

4, Recovery issues4, Recovery issues

I. The place of State aid rules in I. The place of State aid rules in the Treatythe Treaty

EEC 1957 : EEC 1957 : •Part II, The Foundations of the CommunityPart II, The Foundations of the Community•Part III, The Policy of the CommunityPart III, The Policy of the Community

• Title 1 Common rulesTitle 1 Common rules• Chapter 1 Competition rulesChapter 1 Competition rules

• Section 1 rules applying to undertakingsSection 1 rules applying to undertakings• Section 2 aid granted by StatesSection 2 aid granted by States

• Chapter 2 Tax provisions Chapter 2 Tax provisions • Chapter 3 Approximation of laws Chapter 3 Approximation of laws

The place of State aid rules in The place of State aid rules in the Treatythe Treaty

Telefonica, T-151/11, 11 July 2014, ground 98 :« …, the TFEU makes a clear distinction between, on the hand, rules concerning State aid, as laid down in Articles 107 TFUE to 109 TFEU, and, on the other hand, rules concerning distortions resulting from disparities between legislative, regulatory and administrative provisions of the Member States, and in particular fiscal provisions, laid down in Articles 116 TFEU and 117 TFEU (…). »

[free translation]

The place of State aid rules in The place of State aid rules in the Treatythe Treaty

Ryanair T-500/12, 5 February 2015, ground Ryanair T-500/12, 5 February 2015, ground 6565

… that the concept of State aid is an objective one and that the question of whether there is an advantage within the meaning of Article 107(1) TFEU must be examined in the light of the anti-competitive effects caused by the aid measure in question, and not in the light of other factors such as the lawfulness of the measure by which the aid is granted (…).

II. 1) Tax Measures II. 1) Tax Measures

From Banco Exterior (C-387/92) to From Banco Exterior (C-387/92) to Luxleaks ?Luxleaks ?

Selectivity : the Paint Graphos test Selectivity : the Paint Graphos test (C78/08)(C78/08)

Autogrill (T-319/10)Autogrill (T-319/10) Tax differentation is not always aidTax differentation is not always aid No predetermined category of undertakings or No predetermined category of undertakings or

productionsproductions National reference frameworkNational reference framework

II.2) Private investor testII.2) Private investor test

The difficulties of second guessing business The difficulties of second guessing business decisions decisions

Poste Italiane (T-525/08)Poste Italiane (T-525/08) Not whether State is making a good deal but Not whether State is making a good deal but

whether undertaking receives an advantagewhether undertaking receives an advantage

Public undertakings and imputability : Public undertakings and imputability : Commerz Nederland (C-242/13)Commerz Nederland (C-242/13)

II.3) Other areas of EU lawII.3) Other areas of EU law

Castelnou, T-57/11, 3 December 2014Castelnou, T-57/11, 3 December 2014 Consistent application EU lawConsistent application EU law Matters intrinsically related to the subject Matters intrinsically related to the subject

matter of the aid schemematter of the aid scheme

Greek Casinos, T-425/11, 11 September Greek Casinos, T-425/11, 11 September 20142014 controlling entry fees controlling entry fees 106 or 107 ? 106 or 107 ?

II.4) Recovery issuesII.4) Recovery issues

Ryanair T-500/12, 5 February 2015, ground Ryanair T-500/12, 5 February 2015, ground 112112

… it must be recalled that the objective of the obligation on a State to abolish aid found by the Commission to be incompatible with the internal market is to restore the previous situation. That objective is accomplished when the recipients have repaid the sum paid by way of unlawful aid, thereby forfeiting the advantage which they had enjoyed over their competitors on the market, and when the situation prior to payment of the aid is restored (…)