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The Objectivity of the Concept of Presumed State Aid and The Problem of Deficient Circumstantial Interpretation

Carina Barbosa Gouvêa, Pedro Hermílio Villas Bôas Castelo Branco


Keywords: Presumed State aid, Circumstantial interpretation, Objective and subjective concept of aid

In its judgment in Case T-791/16 Real Madrid Club de Fútbol v European Commission, the Court of Justice annulled the Commission Decision on aid measure SA.33754. The judgment allowed the rekindling, from the perspective of political science, of the discussions surrounding what represents the semantic definition of State aid, granted by the States or coming from State resources. The innovation brought by the European Commission was to establish a new subcategory for the term - presumed State aid. We discuss whether this type of aid can be fitted into the control by and decisional standards of the European Commission from a purely objective standpoint. The judgment leads us to reflect on the role played by the Commission regarding the evolution of the concept of State aid. However, this evolution, as an update of the directions of Article 107(1) TFEU, must take into consideration a methodology that necessarily goes through a path aimed at the market analysis based on the economic and social context of the State in question. The answer must be in accordance with the objectives and purposes of Community law and this does not represent a literal exegesis of the legal text.
Keywords: Presumed State aid; Circumstantial interpretation; Objective and subjective concept of aid.

Carina Barbosa Gouvêa, Phd in law, is Professor at the Federal University of Pernambuco (PPGD / UFPE), Brazil, researcher and legal consultant. For correspondence: <>. Pedro Hermílio Villas Bôas Castelo Branco is Professor at the Institute of Social and Political Studies (IESP) of the State University of Rio de Janeiro (UERJ) and the Graduate Program in Law of University Veiga de Almeida (UVA). For correspondence: <>.


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