EU LAW, STATE AID Flashcards
(1) DGcomp description of state aid
An advantage, in any form whatsoever, conferred upon a selective basis, to undertakings, by national public authority.
(1) Relevance of “Poor Farmers” to the concept
Concept enjoys very broad definition, however as per “Poor Farmers” does not encompass MEESA (Measure having equivalent effect to state aid).
(1) What is the relevant quote on state aid
“State aid is a central instrument of EU economic law, seeking to level the playing field and reflecting the Union’s commitment to undistorted competition.
(2) Describe the criteria surrounding state aid
1- Requirement of state intervention.
2- Requirement of selectivity.
3- Requirement of actual or potential distortion of market.
4- Requirement of actual or potential effect on inter-state trade
(2) Describe the exceptions, and possible exceptions, to state intervention.
Outlined under ART.107
Actual: Germany (East), Natural Disaster
Possible: Abnormally low S.O.L, high unemployment, correction of drastic economic failing.
(3) With regard to state intervention, who does it apply to
Undertakings and not individuals
(3) What did the case of “Risparimo” dictate
That not all beneficiaries need to be undertakings
(3) What did the case of “Low Carbon” dictate
That is it only a presumption that measure that solely apply to individuals do not benefit undertakings, and this can be rebutted
(3) What did the case of “Van Der Kooy” imply
That only state intervention received under regular economic circumstances, and not financial crashes or health crises, may qualify as state aid
(3) What did the case of “Altmark” establish
The four principles governing state investment or intervention into the public services
(3) What were the four principles established under “Altmark”
- There must be clearly defined public service obligations.
- There must be an objective analysis of cost and general economic benefit
- There must be an avoidance of overcompensation (Commission v. Germany established wide margin of appreciation here)
- Assessment of overall efficiency and cost must be based on an efficient comparator
(3) What was the evolution witnessed between “Tiggle” and “Slom”
CJEU moved from a requirement that state intervention must have an affect on the “expenditure or revenue of the state” to it must be “imputable on the state”
(3) What factors were listed under “Stardust Marine” and “Poor Farmers” and how did they help
Factors such as degree of integration of undertaking in public administration, the legal status of the undertaking and public oversight of it are to be considered in deterring whether it can be imputed upon the state.
(4) What is the relevance of “Commission v, Italy” with regard to the criteria
Reinforced the fact that market must be distorted or potentially distorted, and the need for potential actual impact on inter-state trade
(4) What did Bacon QC have to say about ‘potential’ under criteria 3 and 4
That the incorporation of “potential risk”, and not just the use of “actual impact”, broadened the scope of ART.107. The chance of something having a potential risk is far higher than the actual affects it would have.
(4) What is the relevance of “Philip Morris” to the criteria in 3 and 4
CJEU listed a plethora of state interventions that could distort the market and affect interstate trade, such as grants, rebates, discounts, moratoriums, bettering of financial position etc.
(4) What was the key presumption established in “Deutsche Alpoverien”
If the identified undertaking or industry exports goods or services, it is axiomatic that criteria 3 and 4 have been fulfilled
(4) What was dictated in “Air Liquide Belgium”
Subsidising certain industries with regard to the expense of their exports may qualify as state aid
(4) What did Bacon QC have to say about “Deutsche Alpoverein” and “Air Liquide Belgium”
Cases further lower the threshold of criteria 3 and 4, increasing the scope of ART.107
(5) What did AG Jacobs have to say about the concept of selectivity
To prescribe a true definition to it is a difficult exercise, with an uncertain outcome
(5) What is the general idea behind selectivity
That if a measure is exclusively available, to certain undertakings or industries, then it is by definition selective
(5) What did the case of “Adria Wien” establish
The ‘Relative Comparison Test’
(5) What is required under the RCT
That the undertaking or industry accused of breaching state aid rules must be evaluated objectively, proportionately, and to a relevant comparative undertaking in a legal and factual situation that reflects the intention of the alleged state aid
(5) What did “Italy v. Commission” do to the RCT test
Emphasised a need for broad interpretation, and a wide margin of appreciation with regard to other ‘relevant’ undertakings or industries
(5) What did “British Aggregates” establish under the RCT
Potential, as opposed to actual, links to relevant industries and undertakings can be claimed
(6) What are the benefits of the concept of selectivity in EU law
Targeted control of distortion, consistency across the Union, flexibility for legitimate and legal climate, environmental, social or historical goals
(6) What are the criticisms of the concept of selectivity in EU law
Legal uncertainty, overreaching, favouritism (Howitzer)
(6) What do Barnard and Howitzer have to say about selectivity
Barnard; Praiseful, “crucial for distinguishing between general economic and social measures and distortive aid”
Howitzer; Critical, “Concept is misshaped, enriching upon areas of national autonomy such as taxation whilst blissfully ignoring structural measures by wealthy member states that provide state aid discreetly
(7) Give a brief synopsis of the “Apple” case
Fax: 1991-2007, Ireland gave effective tax rate of 1-0.005% to Apple, EU pushed by US Senate and Levin, investigated.
Issue: Did the scenario fulfil the criteria of state aid
Ruling: Yes, all four criteria fulfilled, Altmark not relevant, “Phillip Morris” established that betterment of financial position is state aid, “Deutsche Alpoverein” concerned exports
(7) What cases are similar to “Apple”
“Amazon Luxembourg”, “World Duty Free”
(7) What was the famous quote by Levin?
“Apple have a well earned reputation for creativity… crystallised in their engineering of a highly developed tax avoidance scheme”
