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The search returned 4 results.

Legal Basis of the Proposal for a Regulation on Foreign Subsidies Distorting the Internal Market journal article

Justyna Smela Wolski

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 153 - 172

This article explores the possible legal bases of the Proposal for a Regulation on Foreign Subsidies, which, at first glance, displays elements of competition, internal market, and common commercial policy. It is argued, in particular, that the Proposal does not fulfil the requirements regarding the use of Article 114 TFEU established in the Court’s case law despite its self-proclaimed goal of removing ‘distortions within the internal market’. Firstly, it is disputed that foreign subsidies can fall within the scope of a Member State’s competence. Secondly, even if the former reasoning were proved to be wrong, it is difficult to hold that the goal of the Regulation is to harmonize in order to prevent future obstacles to trade between Member States. In any case, should a general basis be needed due to the effects of the Regulation on the internal market, Article 352 TFEU would be a more plausible option, insofar as it applies to non-harmonisable areas and to the creation of new legal forms, such as foreign subsidies, which are at the crossroads of the notion of State aid of Article 107 TFEU and the notion of subsidy of the Anti-Subsidy Regulation. Nevertheless, it is concluded that the entirety of the Proposal could be based on Article 207 TFEU if a teleological and wide interpretation of the common commercial policy, such as that of Opinion 1/78, is followed. Notably, it is argued that the restoration of effective competition within the internal market is not a goal in itself, but rather a consequence of remediating undesirable trade-related behaviours of third countries. Finally, the role that the Regulation, if adopted, will play in Moldova and Ukraine is studied. Keywords: foreign subsidies; common commercial policy; trade; competition; internal market; legal basis


Shedding Light into the ‘Black Box’ of State Aid: journal article

The Impact of Hinkley Point C on the Assessment of the Compatibility of State Aid

Phedon Nicolaides

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 4 - 14

The article argues that the judgment of the Court of Justice in case C-594/18 P Austria v Commission, which appeared to limit the criteria that the Commission uses to determine the compatibility of State aid, may have a positive impact on State aid control if it makes the assessment of the Commission more transparent. There is a need for greater transparency in the ‘weighing’ of the positive and negative effects of State aid and the ‘balancing’ of those effects. The weighing and balancing of the effects of State aid are not easy tasks. But it will be necessary for the Commission to be more explicit about the model it relies on to conclude that aid is compatible or not. Keywords: Article 107(3)(c) TFEU; compatibility with internal market; common interest; affectation of trade; distortion of competition; Hinkley Point C


How Flexible Should State Aid Control Be in Times of Crisis? journal article

Carole Maczkovics

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 271 - 283

The COVID-19 pandemic requires massive State intervention in the economy. To allow EU Member States to act decisively, the Commission committed to make flexible use of State aid rules. This article examines how, over the first four months of the crisis, these rules have been applied to measures notified by EU Member States in view of addressing the consequences of the crisis on their economy. It further highlights the risks that the more flexible application of State aid rules in the context of the current crisis can present for the level playing field and the internal market, and argues that the EU Recovery Plan would not be able to remove those risks. Finally, it recommends that the Commission reviews whether aid measures comply with the general principle of equal treatment and, where it is given discretion under the Treaty, considers imposing conditions counter-balancing distortions of competition, and as the case may be, enabling the green and digital transition so as to ensure, to the largest extent possible, fair competition and the integrity of the internal market. Keywords: COVID-19, level playing field, internal market, equal treatment, conditionality


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