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Commission and Kingdom of Spain v. Government of Gibraltar and United Kingdom  ∙ Joined cases C-106/09P and C 107/09P ∙ Annotation by Maarten Aalbers

DOI https://doi.org/10.21552/estal/2017/3/19

Maarten Aalbers


The material selectivity test resembles a non–discrimination analysis, under which the Commission can assess whether undertakings, which operate under comparable legal and factual situations, are treated unequally by general measures. The Commission has to establish whether measures confer “an advantage of general application” and if so, whether this advantage effectively results in unequal treatment. This contribution, celebrating the 15th jubilee of ESTAL, highlights the effect-based approach of the Gibraltar-judgment, as was commentated by Rossi-Maccanico (EStAL 2012/2), and places developments in case law on the notion of material selectivity in the context of this landmark judgment.
Keywords: Material Selectivity; Non-Discrimination; Gibraltar Case-Law; Effect-Based Approach.

Maarten Aalbers is a PhD fellow at the Europa Institute of the University of Leiden and collaborateur scientifique at ULG Liège, <m.aalbers@law.leidenuniv.nl>.

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