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Do Member States Grant State Aid When They Act as Regulators?

DOI https://doi.org/10.21552/estal/2018/1/3

Phedon Nicolaides


When Member States act as regulators, they need not maximise revenue from the granting of permits, licences or concessions rights. However, they must grant permits, licences or concession rights on the basis of procedures which are open, transparent, non-discriminatory and unconditional. This article argues that qualitative selection criteria may not in fact support the effective achievement of the stated regulatory objectives and, as a result, they may confer an advantage and transfer State resources to the chosen undertakings. Since the concept of State aid does not depend on policy aims or intentions, the regulatory objectives of the authority that grants the exclusive permits, licences or concessions should be irrelevant. EU law does not prevent Member States from using procedures that can aim simultaneously at revenue maximisation and achievement of public policy objectives.
Keywords: Competitive Selection; Regulation; Non-Discrimination.

Phedon Nicolaides, Professor at the College of Europe and University of Maastricht. I am grateful for comments on previous versions by Péter Staviczky and Katri Paas-Mohando. The two case studies included in this article were first published on the Lexxion blog “State Aid Uncovered” (StateAidHub.eu), available at < http://stateaidhub.eu/blogs/stateaiduncovered/post/9114> and <http://stateaidhub.eu/blogs/stateaiduncovered/post/9115> (last accessed on 4 February 2018).

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