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‘State’ Aid or Not – This Is the Question

Philipp Werner, Marcello Caramazza


Keywords: State resources, burden of proof, public funds, private funds

This article provides an overview of the interpretation by the Court of Justice of the European Union (CJEU) of the criterion of ‘State resources’ as an essential element for the definition of State aid provided under Article 107 (1) TFEU. In 2019, the CJEU issued four important judgments (ENEA, EEG, Tercas and Achema) towards clarifying when a measure can or cannot be considered as implemented using State resources, and the elements that the Commission can rely upon to prove the public nature of the resources. In light of earlier Case law in interpreting this criterion (in particular, the landmark Stardust Marine, PreussenElektra, and Pearle Cases), the authors analyse the new judgments and the CJEU’s efforts to strike a balance between the wide interpretation of the concept of ‘State resources’, encompassing public funds and contributions from private actors, and the Commission’s burden of proof in imputing monies to the State.

Philipp Werner is Partner and Marcello Caramazza Associate at Jones Day. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.


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