The recent judgment in case Club Hotel Loutraki e.a. is interesting in two respects. Firstly, the General Court of the European Union (the ‘GC’ or the ‘Court’) takes a further step towards a more pragmatic assessment of State aid measures. In cases where the economic effects of intertwined measures concern the same beneficiary and arise at the same time, the GC considers it appropriate to assess these in combination. This effects-based approach is to be welcomed as it avoids results that would militate against –or at the very least not support – the creation of a level playing field amongst competitors, one of the key aims of State aid rules. The judgment also addresses the question of when serious difficulties in the preliminary investigation would require the Commission to initiate a full investigation. In this respect, the GC takes a view which, whilst reaffirming to a large extent pre-existing case law, leaves more room for constructive dialogue between the Member State and the Commission early on. The judgment thus also provides incentives for Member States to be forthcoming at the preliminary stage of the Commission’s review: offering early commitments may prevent an in-depth investigation. This is of particular relevance to privatisation transactions where timing and legal certainty are crucial.
Keywords: Advantage; The procedure before the Commission; Serious difficulties; Joint assessment of aid measures