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The Three Poisons of Post-Covid State Aid Control:

Emerging Trends in Interpretation and Legislative Approach to Member States’ Aid Measures


Jakub Kociubiński


This work is distributed under the Creative Commons Licence Attribution 4.0 International (CC BY 4.0).

Keywords: COVID-19, market economy operator test, MEOP, moral hazard, ad hoc regulation, common assessment criteria

Even though the economic situation remains precarious, the Covid-19 economic shock has subsided enough to allow us to take stock of the European Union (EU) responses to the pandemic and appraise them in the context of emerging trends. The author argues that there are early precursors of such trends – referred to as the ‘Three Poisons’ – observable in interpretive and legislative approaches to Member States’ aid measures. These are: the easier justification of extended lifelines without adequately recognising the need for adaptation to new market conditions, and moral hazard associated with subsidy dependence; the blurring of lines between what is theoretically rational and what is obtainable under crisis market conditions thereby distorting the results of the Market Economy Operator Test; the increasing reliance on ad hoc frameworks, and highly situation-specific interpretations potentially eroding the pre-existing acquis. In this context, the purpose of this article is to identify post-Covid trends which negatively affect or might affect the long-term effectiveness of the EU State aid control system. Based on this, to assess whether these ‘poisons’ can and should be opposed. This analysis will conclude with de lege lata and de lege ferenda recommendations.
Keywords: COVID-19; market economy operator test; MEOP; moral hazard; ad hoc regulation; common assessment criteria

Jakub Kociubiński LLM, PhD, DSc (Dr hab. prof. UWr), Faculty of Law, Administration and Economics, University of Wrocław, Poland []. ORCID: 0000-0002-4391-7439. This publication has been supported by National Science Centre, Poland (Narodowe Centrum Nauki) under project no 2021/43/B/HS5/00548. For the purpose of Open Access, the author has applied a CC-BY public copyright licence to any Author Accepted Manuscript (AAM) version arising from this submission.


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