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The ‘Effect on Trade between the Member States’ Criterion: Is It the Right Criterion by Which the Commission’s Workload Can Be Managed? journal article

Cees Dekker

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 154 - 163

On 29 April 2015, the European Commission decided on several notified measures, ruling that in none of those cases State aid was involved because, as the accompanying press release stated, they were unlikely to have a significant effect on trade between Member States. According to the press release, the decisions give additional guidance on how to determine which cases should be assessed by the Commission and which should not, to allow the Commission to focus on cases with a larger impact on the internal market. A couple of decisions in 2016 followed the same line of reasoning. This article discusses the question of how these decisions relate to the Court’s case law and the Commission’s own practice regarding the criterion ‘effect on trade between Member States’ laid down in Article 107(1) TFEU. It will also explore to what extent these decisions give actual clarity on the application of this criterion and if there is a better alternative to reduce the workload of the national authorities and the Commission. Keywords: Interstate Trade; De Minimis; Appreciable Effect; Notice on the Notion of State Aid.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Damages Claims Based on State Aid Law Infringements journal article

Joanna Goyder, Margot Dons

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 418 - 430

Damages claims based on State aid law infringements may be brought in a number of situations. There is an EU law cause of action, and sometimes also a national law basis, for claims by competitors of the aid recipient, or by third parties, against the Member State or other body which granted the aid. Competitors may also claim damages from the beneficiary, but such claims can only be brought if national law provides a cause of action. Finally, the recipient itself may claim damages from the granting Member State or other body, but an EU law cause of action will normally not be available, so such a claim will also generally have to be based on national law. All these types of damages claim are rare in practice, and even more rarely successful. The main reason for this appears to be the difficulty for claimants to prove causation and to quantify their loss. Keywords: Damages Claims; Infringements; Enforcement Notice; National Courts.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ State Aid Assessment: What National Courts Can Do and What They Must Do journal article

Jose Luis Buendía Sierra, Miguel Ángel Bolsa Ferruz

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 408 - 417

The article explores the powers and duties of national courts when they enforce EU State aid law, particularly when, by virtue of the stand-still obligation pursuant to Article 108(3) of the Treaty on the Functioning of the European Union, they are faced with the assessment of whether a national measure constitutes illegal State aid. It also analyses a number of mechanisms or tools available in this context for national courts to cooperate with the European Commission and the European Courts, with the primary objective of preventing contradictory decisions or judgments rendered by different authorities at national and EU level. In this vein, the article also critically reviews the 2009 Commission Notice on the enforcement of State aid by national courts, which in the authors’ view sometimes goes beyond what is required by the applicable case law. The scope of measures available for national judges is certainly much wider than the scope of measures imposed on national judges. Keywords: Powers and Duties of National Courts; 2009 Commission Notice; State Aid Enforcement.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ How to Ensure State Aid Compliance at Local and Regional Level? journal article

Christian Berger

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 476 - 481

It is the Member State which is responsible for all State aid granted by authorities on its territory. At the same time, it might not even be aware of aid which may have been granted by a regional or local authority. Local and regional authorities are like the Member State itself active in many fields, both economic and non-economic and sometimes pursue an interventionist aid granting policy on its local territory. It is therefore paramount that the State establishes structures which make sure those local and regional authorities do not grant illegal aid. Member States have adopted different approaches towards this. Most rely on soft measures such as awareness-raising and training, while other have coupled this with more organised enforcement structures or hard legislation. Both central and more federative or devolved Member States face the same problem; the latter has just moved the enforcement responsibility to a different level of government. But in the end, the Member State’s fundamental responsibility remains. Keywords: State Aid Compliance; Local and Regional Level; Enforcement.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ National Judges and Training in EU State aid Law journal article open-access

Erika Szyszczak

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 470 - 475

The latest Call from the European Commission identifies the training of national judges in EU State aid law as one of its priority areas. The number of State aid cases at the national level is increasing and present complex issue of law and economics for national judges to solve. A recent training session at the Spanish Judicial School in Barcelona reveals how a successful programme of training can be organised, highlighting the many recent State aid issues that have been identified in European Commission policy documents and Decisions and case law of the European Courts. Keywords: National Judges; Training Programmes; Law and Economics.

ARTICLES - STATE AID AND NATIONAL JURISDICTIONS ∙ Taxation and Limits to State Aid: the Case Law of The CJEU on Regional Selectivity and Its Application by Spanish Courts journal article

Saturnina Moreno González

European State Aid Law Quarterly, Volume 16 (2017), Issue 3, Page 340 - 353

This work illustrates the Commission’s initial position and the evolution of EU case law regarding “regional, geographical or territorial” selectivity in tax matters, the issues raised by said case law and the interpretation and application made by Spanish judicial courts in this respect. Keywords: Regional Selectivity; Tax Benefit; Symmetrical and Asymmetrical Distribution of Tax Competences; Right of Proof.