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Author: Caroline Buts

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Article 346(1) TFEU and Strategic Autonomy: journal article

A Possible Loophole to Grant State Aid in the Context of Geopolitical Struggles?

Wout De Cock, Gregory Kegels, Caroline Buts, Cind Du Bois

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 150 - 160

The current geopolitical situation has led to various calls for investment in Europe’s strategic autonomy, for example with regard to the defence and security sector. However, the possibility for Member States to grant financial support is restricted by EU State aid law, leading some stakeholders to argue that there is a friction between the geopolitical need to invest in Europe’s strategic autonomy on the one hand, and EU State aid law on the other. In this contribution, we examine whether Member States could avoid and/or alleviate this friction by invoking Article 346(1)(b) TFEU. This Treaty provision, often overlooked by legal scholars, stipulates that Member States may, in principle, take all measures they consider necessary for the protection of their essential security interests, without having to consider EU State aid law. By analysing relevant case-law of the EU Courts, however, we argue that the aforementioned Treaty provision has a limited scope, and that, therefore, Member States, in principle, must comply with the EU State aid rules when they contribute to Europe’s strategic autonomy. Keywords: Article 346(1)(b) TFEU; (open) strategic autonomy; investments; essential security interests; dual-use goods; R&D; defence sector

Eesti Pagar: A Formalistic Approach to Incentive Effect and Recovery Procedures journal article

Caroline Buts, Péter Staviczky

European State Aid Law Quarterly, Volume 20 (2021), Issue 4, Page 546 - 559

Eesti Pagar constitutes a milestone in State aid law. This article provides an overview of the judgment and discusses, in chronological order, the topics of the five questions dealt with by the Court. First, we review the importance of the criterium incentive effect and more specifically the timing of the aid application in relation to the start of the project. Second, we analyse the obligation of a national authority to recover unlawful aid, also in the absence of a Commission decision. Third, we investigate whether actions by national authorities (in breach of EU law) can cause legitimate expectations for an aid beneficiary. Fourth, regarding recovery procedures without a Commission decision, we reflect on the pertinent limitation period. Finally, we examine the applicable recovery interest rate. Keywords: incentive effect; complaints; recovery; (recovery) interest rate/reference rate; limitation period, GBER, illegal aid, obligation of national granting entities Milestones Preview: this article is based on a chapter of the upcoming second edition of the book 'Milestones in State Aid Case Law' (Lexxion 2022).

Comparing China’s Fair Competition Review System to EU State Aid Control journal article

Shuping Lyu, Caroline Buts, Marc Jegers

European State Aid Law Quarterly, Volume 18 (2019), Issue 1, Page 37 - 60

The promulgation of the Opinions of the State Council on Establishing a Fair Competition Review System During the Development of Market-oriented Systems in 2016 marked the creation of China’s Fair Competition Review System. Interestingly, a remarkable resemblance is found with the EU’s State aid control. The competition authorities of both sides also stress the importance of cooperation in this area. In June 2017 they signed a Memorandum of Understanding creating a dialogue, linking State aid control and the Fair Competition Review System. By means of a comparative analysis and expert interviews, this article focuses on two questions: i) What are the similarities and differences between the EU’s State aid control and China’s Fair Competition Review System regarding objectives, basic provisions and procedures? and ii) What are the reasons for these commonalities and differences? Keywords: China’s Fair Competition Review System; Comparative analysis; International cooperation.

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