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When State Aid Goes Wrong:

Member State’s Liability Towards the Aid Beneficiary – A Belgian Case Study

Julie Leroy

DOI https://doi.org/10.21552/estal/2022/4/5

Keywords: Article 108(3) TFEU, standstill-obligation, recovery of unlawful (and incompatible) State aid, liability of Member States, Belgium

A Member State which violates the standstill-obligation under Article 108(3) TFEU is not directly held responsible for his failure to comply with his obligations under EU law, as it is the aid beneficiary who will be obliged to repay the unlawful (and incompatible) State aid. This contribution evaluates if the aid beneficiary can nevertheless hold the Member State somehow responsible, through a damage claim based on the latter’s extra-contractual liability for the violation of EU law. The Belgian case study shows that such a claim can be successful, as the conditions of Articles 1382-1383 Old Civil Code might be fulfilled. However, the aid beneficiary is in a difficult position. One the one hand, this undertaking bears the ‘risk of proof’. On the other hand, a full compensation will be rare as, amongst others, the aid beneficiary’s own fault might lead to a liability apportionment. Finally, the obligation to repay the unlawful State aid (with interest) as such will never qualify as a damage that is eligible for a compensation, as this would undermine the effectiveness of EU law.
Keywords: Article 108(3) TFEU; standstill-obligation; recovery of unlawful (and incompatible) State aid; liability of Member States; Belgium

Dr Julie Leroy, Lawyer at Eubelius (Belgium, Brussels Bar) and Research Fellow at Hasselt University (Law, Tax & Business Unit). For correspondence: <mailto:julie.leroy@eubelius.com>.The views and opinions expressed in this contribution are those of the author only and do not (necessarily) reflect the position of the organisations of which she is a part.


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