Christopher McMahon

European State Aid Law Quarterly, Volume 23 (2024), Issue 1, Page 4 - 14

The State aid rules apply to a wide range of interventions on the internal market that take a variety of different forms. This poses challenges for the case law on the identification of aid within the meaning of Article 107(1) TFEU as it seeks to adapt the standards it applies to different circumstances while avoiding formalism. Criticisms in the academic literature of the application of the prohibition on aid to fiscal measures are frequently premised on the assumption that the rules should apply in a different way to such measures on account of their relationship with the sovereignty of Member States in the field of taxation. The manner in which the law on the application of the State aid rules to fiscal measures remains unsettled. This article examines a substantial doctrinal obstacle to any form of differentiation in the standards used to identify fiscal and non-fiscal measures in the form of two related maxims which recur throughout the case law. The first holds that aid is defined in relation to its effects. The second is that regulatory technique is irrelevant to the classification of a measure as aid. This article will chart the development of these established formulae in the case law and explain their relationship to one another, arguing that they represent a significant, but not absolute impediment to the articulation of distinct standards to identify aid in the form of fiscal measures. Keywords: Effects; Objectives; Selectivity; Fiscal Measures; Taxation; Article 107(1) TFEU; Formalism

Christopher McMahon

European State Aid Law Quarterly, Volume 22 (2023), Issue 4, Page 427 - 430

Christopher McMahon

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 427 - 433

A recent decision of the General Court to annul the Commission’s decision not to raise objections to individual aid for the development of a youth hostel raises important questions about the burden that the Commission must bear in establishing that there are no serious doubts as to the compatibility of the contested measures with the internal market. The case related to a contract between the regional government of Berlin and a non-profit organisation allowing the latter to occupy a site rent-free provided that it developed and operated a youth hostel there. A competing provider of low-cost tourist accommodation that made a complaint regarding the contract applied for the annulment of the Commission’s decision not to raise objections after a preliminary assessment. After dismissing a number of speculative arguments on the admissibility of the action, the General Court annulled the decision due to the Commission’s failure to rule out the existence of serious doubts as to compatibility with the internal market. The decision will require the Commission to tread carefully in refusing to rule on the existence of aid as part of the preliminary assessment, particularly where this relates to uncertainty on the condition of economic advantage. This may limit the ability of the Commission to conserve resources by refraining from identifying and quantifying any economic advantage.

Christopher McMahon

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 249 - 257

During the pandemic, many Member States have engaged in more interventionist policies to sustain their economies through tough public health restrictions. This has manifested itself in the provision of large quantities of State aid to elements of the aviation industry by Member States, facilitated by the relatively permissive policies of the European Commission. The Irish low-cost airline Ryanair has been a notable and outspoken critic of these measures, describing them as ‘state aid crack cocaine’ and their beneficiaries as ‘state aid junkies’ and has launched an aggressive programme of litigation to annul the decisions approving the aid. This article reviews the first nine of the judgments of the General Court that this litigation has produced to date, three of which have led to the annulment of the Commission’s approval of the aid. This article will go on to assess the impact of these decisions and examine the contribution they make towards understanding the State aid response of the EU and its Member States to the pandemic. It will be suggested that the General Court has generally taken a tolerant attitude towards pandemic-related aid for aviation, upholding the approval of individual aid and allowing Member States to confine the aid to recipients with a close connection to their own economies. Keywords: COVID-19; Temporary Framework; aviation; non-discrimination.