STATE AID LITIGATION BEFORE THE EU COURTS. THE CASE OF AID SCHEMES

Abstract

Both the European Commission’s decision-making and the EU case-law on state aid schemes are symptomatic of the uncertainty, and sometimes even contradiction, that is implicit in treatments of State aid, a discipline which form part of the Treaty’s rules on competition, in which, nonetheless the rights that undertakings enjoy are quite limited. This article examines the current position in the case-law on whether it is possible for undertakings (whether aid beneficiaries, or their competitors) to challenge the Commission’s decision on aid schemes, meaning state measures, often implemented in the form of legislation, that address a number of beneficiaries and that may fall under the prohibition set forth in Articles 107 et seq. TFEU. This is an area in which the Commission and the Community judicature are constantly doing battle. The Commission tends to view its decisions as purely general measures, and as such not open to challenge, the judicature has shown greater flexibility towards the undertakings that bring actions before it, frequently finding that these decisions affect applicants’ positions, and are thus subject to review. The article looks in particular at recent developments in the case-law that have applied Article 263(4) TFEU, final limb, to State aid, finding that a decision on an aid scheme may in some cases constitute a regulatory act not entailing implementing measures. The aim is to show how in this field the case-law of the European courts, while complex and not always consistent, has nonetheless sought to listen to businesses’ concerns, gradually eroding the principle favoured by the Commission, that decisions on aid schemes are an exclusive matter between the Commission and the Member States.