Can general measures be...selective? Some thoughts on the interpretation of a state aid definition

Abstract

Selectivity constitutes a sine qua non condition of application of Article 87(1) EC. Therefore, in theory, general measures open to all undertakings do not constitute State aid. This article tries to explore and clarify the notion of general measures, by reviewing and analysing the relevant ECJ case law, Commission decisions and communications. The analysis shows that there is a grey area, where there are no coherent borders between general and selective measures. It may appear in practice that the ECJ case law limits to a large degree the scope of general measures, and almost every State measure, even that of general economic policy, can ultimately be found selective and constitute State aid. The question of where to draw the line between general and selective measures is addressed. It is argued that it should be accepted that there is no such a thing as a measure that affects all undertakings identically. Some undertakings will always profit more from the measure than others. This should not, however, make such measures automatically selective. More coherent approach to general measures by all actors is needed in order to make sure that the notion is not stretched too far, at the same time avoiding virtually all economic policy actions involving State resources being brought under the scope of Article 87(1) EC.