Individual concern in the State aid action for annulment in light of the notion of State aid

Abstract

ABSTRACTCompetitors of aid beneficiaries bringing an action for annulment against a State aid decision must demonstrate that their position on the market is substantially affected. However, the interpretation of this criterion seems inconsistent with the concept of State aid, in particular with the notions of selective advantage and distortion of competition. Indeed, substantial effect privileges selective disadvantage over selective advantage and requires actual harm where a simple threat of distortion of competition is enough. This inconsistency has far-reaching implications because the interpretation of admissibility criteria encroaches upon the interpretation of the notion of State aid. Therefore, by narrowing down the scope of challengeable State measures, the Court effectively excludes from the scope of judicial review an important part of measures falling under Article 107(1) TFEU. Consequently, admissibility conditions should be mitigated and aligned with the logic of State aid law for the sake of completeness of EU State aid control.