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Passing-On and Recoverable Unlawful State Aid under European Union Law

DOI https://doi.org/10.21552/estal/2018/1/7

Édouard Louis Jean-Baptiste Bruc


The willingness to encourage private parties to seek compensation has emphasised the necessity to push forward economic analysis regarding antitrust cases. The question concerning a passing-on defence thus entered the sphere of public enforcement of EU State aid law via a judgment which highlighted the possibility to take a passing-on defence regarding the ‘undercharge’ passed on to the consumer through the entrustment (lowering prices). However, the ECJ quashed the judgment, preferring a more deterrent approach, implicitly stressing that it can only be a‘Pyrrhic victory’ because it would require predictions as regards the behaviour of the benefiting undertaking and its results. In the author’s view, this rollover is an opportunity to underline the difference between public and private enforcement aims, and to understand the role of private enforcement under State aid law which in fact requires a passing-on analysis.
Keywords: Passing-on, Private Enforcement; Unlawful State aid; Recovery.

Édouard Louis Jean-Baptiste Bruc, Élève-avocat, École de Formation des Barreaux de Paris; LLM in Competition Law, Queen Mary University of London (Distinction); Magistère DJCE - Master II DJCE Montpellier (High Honours). Responsibility for the information and views set out in this article lies entirely with the author. Contact: <mailto:e.bruc@hotmail.fr>.

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