The NOx case demonstrates that selectivity continues to be the lynchpin in the assessment of State aid measures. Even though the case has not provided much guidance, it has shown tendencies that were confirmed in later case law: a wide interpretation of selectivity; uncertainty about the application of the selectivity criterion by the Commission, the GC and the CJEU; and divergent views of the CJEU and the GC. For the sake of legal clarity, the CJEU should have clarified which factors it deemed pertinent to determine the ‘similarity’ of undertakings subject to the NOx scheme. This would have provided clarity for the determination of the correct ‘reference framework’ in future cases, which in turn would have made it easier to identify ‘comparable’ market situations. We are focusing in this note on two of the conditions for the existence of State aid under Article 107(1) TFEU, namely selectivity and State resources.
Keywords: Material Selectivity; State Resources; Comparability; Reference Framework; NOx Emissions.