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Private Enforcement of EU State Aid Law Through Damages Claims

Achieving Effective Redress

DOI https://doi.org/10.21552/estal/2019/2/6

Alvaro Ummen Almeida


A new enabling framework for damages claims based on competition law infringements has arisen in light of the European Damages Directive coming into force and its implementation across EU Member States. Hitherto, one of the reasons why damages awards derived from State aid infringements have been rare is the absence of EU cause of action in claims against the aid beneficiary and on the standards of proof in causality analysis. These obstacles can be surpassed by amplifying the scope of the Damages Directive and through a broader interpretation of the goals of Articles 107 and 108 TFEU with further instruments such as compensation. Aligned with the expectation of initiatives at the EU level, five steps are suggested: amplifying the scope of the Damages Directive to State aid infringements; joint and several liability between Member States and aid recipients; presumption of harm to reduce causal uncertainty; counterfactuals for quantifying damages; and a right of recourse from contractual liability by the aid recipient. A more economic approach in line with the overarching principle of effectiveness will enable an active role by competitors, promoting equivalence between antitrust and State aid harm redress, while also functioning as a complementary deterrence mechanism of enforcement by strengthening the recovery procedure.
Keywords: Damages; Enforcement; Framework Equivalence; Effective Redress.

Alvaro Ummen Almeida, LLM, is an EU Competition lawyer practising in-house at the Competition and Markets Authority of the United Kingdom.

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