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Article 346(1) TFEU and Strategic Autonomy: journal article

A Possible Loophole to Grant State Aid in the Context of Geopolitical Struggles?

Wout De Cock, Gregory Kegels, Caroline Buts, Cind Du Bois

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 150 - 160

The current geopolitical situation has led to various calls for investment in Europe’s strategic autonomy, for example with regard to the defence and security sector. However, the possibility for Member States to grant financial support is restricted by EU State aid law, leading some stakeholders to argue that there is a friction between the geopolitical need to invest in Europe’s strategic autonomy on the one hand, and EU State aid law on the other. In this contribution, we examine whether Member States could avoid and/or alleviate this friction by invoking Article 346(1)(b) TFEU. This Treaty provision, often overlooked by legal scholars, stipulates that Member States may, in principle, take all measures they consider necessary for the protection of their essential security interests, without having to consider EU State aid law. By analysing relevant case-law of the EU Courts, however, we argue that the aforementioned Treaty provision has a limited scope, and that, therefore, Member States, in principle, must comply with the EU State aid rules when they contribute to Europe’s strategic autonomy. Keywords: Article 346(1)(b) TFEU; (open) strategic autonomy; investments; essential security interests; dual-use goods; R&D; defence sector


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