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The Three Poisons of Post-Covid State Aid Control: journal article open-access

Emerging Trends in Interpretation and Legislative Approach to Member States’ Aid Measures

Jakub Kociubiński

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 4 - 16

Even though the economic situation remains precarious, the Covid-19 economic shock has subsided enough to allow us to take stock of the European Union (EU) responses to the pandemic and appraise them in the context of emerging trends. The author argues that there are early precursors of such trends – referred to as the ‘Three Poisons’ – observable in interpretive and legislative approaches to Member States’ aid measures. These are: the easier justification of extended lifelines without adequately recognising the need for adaptation to new market conditions, and moral hazard associated with subsidy dependence; the blurring of lines between what is theoretically rational and what is obtainable under crisis market conditions thereby distorting the results of the Market Economy Operator Test; the increasing reliance on ad hoc frameworks, and highly situation-specific interpretations potentially eroding the pre-existing acquis. In this context, the purpose of this article is to identify post-Covid trends which negatively affect or might affect the long-term effectiveness of the EU State aid control system. Based on this, to assess whether these ‘poisons’ can and should be opposed. This analysis will conclude with de lege lata and de lege ferenda recommendations. Keywords: COVID-19; market economy operator test; MEOP; moral hazard; ad hoc regulation; common assessment criteria


Another Turn in the MEOT-Burden of Proof Saga or Just Clarification of the MEOT-Stages? · Case C-148/19P BTB · Annotation by Cees Dekker journal article

Annotation on the Judgment of the Court of Justice of 7 May 2020 in Case C-148/19P BTB Holding Investments SA and Duferco Participations Holding SA v European Commission

Cees Dekker

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 346 - 351

When applying the market economy operator test the Commission is required to conduct the examination procedure for the measures in question carefully and impartially in order to take its final decision on the existence and, where applicable, incompatibility or illegality of the aid on the basis of information which is as complete and reliable as possible. This case, read in context with other recent case law and Commission decisions shows that the Commission still has to prove an actual advantage and, on the other hand, the Member State may submit ex-post (e)valuations that could prove that no advantage was conferred on the beneficiary.

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