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Inextricably Linked? The Limits of a State Aid Inquiry · Case T-101/18 Republic of Austria v European Commission (Paks II) · Annotation by Tamás Kende and Gábor Puskás

Annotation on the Judgment of the General Court of 30 November 2023 in Case T-101/18 Republic of Austria v European Commission (Paks II)

Tamás Kende, Gábor Puskás

DOI https://doi.org/10.21552/estal/2023/2/12

Keywords: objective, EURATOM Treaty, TFEU, limits of Article 108(2) TFEU, criteria application Article 107(3)(c), nuclear energy, environmental protection, public procurement, infringement


Article 107(3)(c) TFEU requires a delicate balancing of the positive effects of the aid aiming the development of certain economic activities and the negative effects thereof. The Paks II judgment provides clarifications as to the limits of this balancing process and the European Commission’s obligations to take into account primary and secondary EU laws other than those related to State aid, as well as fundamental goals of the EU Treaties like the protection of environment. The Paks II judgment also confirms that State aid rules are also applicable concerning activities falling under the EURATOM Treaty and clarifies the relationship between State aid and public procurement and an infringement procedure and a State aid procedure. The Paks II judgment also shows that Member States have a hard time with challenging the Commission’s State aid decisions if they rely on an alleged err in law or they attack the Commission’s discretionary powers and the proper application thereof.

Dr Tamás Kende, partner at Kende, Molnár-Bíró, Katona (KMBK), Budapest, Hungary and Associate Professor, Elte Law School Budapest. For correspondence: <mailto:tkende@kmbk.hu>. Gábor Puskás, legal counsel at MFB Hungarian Development Bank.

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