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Finding Selectivity or the Art of Comparison  ∙ Joined Cases C-78 to 80/08 ∙ Annotation  by José Luis Buendía Sierra

Annotation on the Judgment of the Court of Justice of the European Union  (First Chamber) of 8 September 2011 in Joined Cases C-78 to 80/08, Paint Graphos

DOI https://doi.org/10.21552/estal/2018/1/10

José Luis Buendía Sierra


This case note examines the analysis of ‘Selectivity’ undertaken by the ECJ and AG Jääskinen in Paint Graphos and subsequent case law. In that case, the ECJ set out some clear limits on the notion of selectivity: Selectivity is ultimately about finding a material discrimination between similar situations and not merely about a formal exception to an alleged general rule. Hence, the Commission can no longer assume the presence of selectivity without, first, defining correctly the reference system ‘strictu sensu’ or universe of situations that are similar, both from a legal and factual perspective. The Commission would also need to prove that the measure gives an advantage to the beneficiaries compared with other undertakings in the same situation. It is only at this stage that we could speak of ‘prima facie’ selectivity.
Keywords: Selectivity; Fiscal Aid; Comparability; Reference System; Burden of Proof.

José Luis Buendía Sierra, Partner at Garrigues Brussels, visiting professor at King’s College London and co-editor of the European State Aid Law Quarterly (EStAL). A previous version of this annotation has been published in C Buts and JL Buendía Sierra (eds), Milestones in State Aid Case Law (Berlin: Lexxion Publisher 2017), 410-422.

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