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The Impact of the Cases Marinvest and Ighoga on the Notion of the Criterion “Effect on Trade Between Member States”

Theresia de la Cruz Rothenfusser


Keywords: interstate trade, commission practice, Marinvest, Ighoga

This article analyses the impact of the General Court’s recent caselaw on the notion of “effect on trade between member states” under Article 107(1) TFEU. While the criterion was traditionally interpreted very broadly, the Commission changed its approach and developed criteria to restrict its application, essentially excluding cases where the effect on trade was not more than marginal. In Marinvest and Ighoga, the General Court endorses this new interpretation and provides further details for the application of the new criteria. This contribution evaluates the implications of the decisions for the interpretation of “interstate trade” on the one hand and its practical application by the Commission and Member States on the other hand. It concludes that the GC decisions contribute to a higher operability of the criteria and facilitates their application by the Member States, but ultimately cannot significantly advance legal certainty. This can only be achieved by a decision of the CJEU ruling on the admissibility of the Commission’s new interpretation and more consistent decisions going forward of both the Commission and the Courts adopting the new reading that allow the Member States more confidence in applying the criterion.
Keywords: interstate trade; commission practice; Marinvest; Ighoga


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