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Passing-On and Recoverable Unlawful State Aid under European Union Law journal article

Édouard Louis Jean-Baptiste Bruc

European State Aid Law Quarterly, Volume 17 (2018), Issue 1, Page 54 - 65

The willingness to encourage private parties to seek compensation has emphasised the necessity to push forward economic analysis regarding antitrust cases. The question concerning a passing-on defence thus entered the sphere of public enforcement of EU State aid law via a judgment which highlighted the possibility to take a passing-on defence regarding the ‘undercharge’ passed on to the consumer through the entrustment (lowering prices). However, the ECJ quashed the judgment, preferring a more deterrent approach, implicitly stressing that it can only be a‘Pyrrhic victory’ because it would require predictions as regards the behaviour of the benefiting undertaking and its results. In the author’s view, this rollover is an opportunity to underline the difference between public and private enforcement aims, and to understand the role of private enforcement under State aid law which in fact requires a passing-on analysis. Keywords: Passing-on, Private Enforcement; Unlawful State aid; Recovery.


The Case of the Spanish Tax Lease System · Case C-128/16 P Commission v Spain · Annotation by Phedon Nicolaides journal article

Annotation on the Judgment of the Court (Second Chamber) of 25 July 2018 in Case C-128/16 P European Commission v Kingdom of Spain and Others.

Phedon Nicolaides

European State Aid Law Quarterly, Volume 17 (2018), Issue 3, Page 412 - 418

A tax measure can be selective in relation to both direct and indirect beneficiaries. A beneficiary that passes on all benefits to third parties may still derive a selective advantage. The selectivity of such advantages have to be determined on the basis of their effects, not the form of the tax. Keywords: Selectivity; Direct beneficiaries; Indirect beneficiaries; Passing on advantage.

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