Abstract
The legal basis the European Commission (EC) choses for its actions when it finds a Member State’s action (or inaction) to be in breach of its obligations stemming from its EU membership vary in different fields of law. This is particularly visible in State aid on one side, and general infringement proceedings on the other. But the line between the general character of a possible infringement and that of State aid law is sometimes blurred and difficult to establish. This article analyses if the EC does not abuse its powers when it chooses Article 108(2) TFEU, instead of Article 258 TFEU. A positive answer to that question is difficult to find and controversial. However, given the benefits the EC gains by taking action under Article 108(2) TFEU, it is visible that the EC’s choice can be biased because of those benefits.
Highlights
According to Article 5(1) TEU, the limits of European Union competences are governed by the principle of conferral, which refers to the granting of powers to the EU to act in a certain area
Even if an action by the EC is confirmed, that is even if the CJ finds the Member State to be in breach of its European Union membership obligations, the CJ judgment confirming the general infringement proceedings is purely declaratory in nature (Lenaerts, Maselis and Gutman, 2014, p. 205)
Whatever were the genuine motives of the EC’s choice of the legal basis for its actions, namely, if it was the need to eliminate the infringement caused by the Member State or if it was designed as a tool to make a Member State act in accordance with the will of the EC, it must be concluded that State aid law generally, and Article 108(2) TFEU proceedings in particular, are perfect tools to attain such an aim
Summary
According to Article 5(1) TEU, the limits of European Union competences are governed by the principle of conferral, which refers to the granting of powers to the EU to act in a certain area. Notwithstanding this fact, for the sake of this article the general premise is taken that the national acts questioned in the abovementioned EC decisions do not infringe State aid law, but they do not involve State aid at all This premise may eventually turn out to be false based on the results of the pending judicial disputes, but that should not diminish the importance of answering the main question in this text: Does the EC have the right to choose the Article 108(2) TFEU proceedings for its actions, instead of the Article 258 TFEU proceedings, if an alleged breach objectively does not touch upon State aid rules, but the EC believes it does? Exclusive competence over those areas that were not conferred on the Union, but this does not limit the Union’s (and on its behalf the EC’s) exclusive competences to examine national measures taken in those areas with respect to their compatibility with the Internal Market, as State aids
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