Speech delivered at King's College London

1. EU State Aid Control ; whatEU State Aid Control ; what
is the Commissionis the Commission
supposed to control ?supposed to control ?
LondonLondon
11 March 201511 March 2015
Marc van der WoudeMarc van der Woude

2. IntroductionIntroduction
I. The place of State aid rules in the TreatyI. The place of State aid rules in the Treaty
II. Four recent issuesII. Four recent issues
1, Fiscal differentiation1, Fiscal differentiation
2, Private investor test2, Private investor test
3, State aid law and other areas of law3, State aid law and other areas of law
4, Recovery issues4, Recovery issues

3. I. The place of State aid rules inI. The place of State aid rules in
the Treatythe Treaty
EEC 1957 :EEC 1957 :
•Part II, The Foundations of the CommunityPart II, The Foundations of the Community
•Part III, The Policy of the CommunityPart III, The Policy of the Community
•
Title 1 Common rulesTitle 1 Common rules
• Chapter 1 Competition rulesChapter 1 Competition rules
•
Section 1 rules applying to undertakingsSection 1 rules applying to undertakings
•
Section 2 aid granted by StatesSection 2 aid granted by States
• Chapter 2 Tax provisionsChapter 2 Tax provisions
• Chapter 3 Approximation of lawsChapter 3 Approximation of laws

4. The place of State aid rules inThe place of State aid rules in
the Treatythe Treaty
Telefonica, T-151/11, 11 July 2014, ground
98 :
« …, the TFEU makes a clear distinction between, on the
hand, rules concerning State aid, as laid down in Articles
107 TFUE to 109 TFEU, and, on the other hand, rules
concerning distortions resulting from disparities between
legislative, regulatory and administrative provisions of the
Member States, and in particular fiscal provisions, laid
down in Articles 116 TFEU and 117 TFEU (…). »
[free translation]

5. The place of State aid rules inThe place of State aid rules in
the Treatythe Treaty
Ryanair T-500/12, 5 February 2015, groundRyanair T-500/12, 5 February 2015, ground
6565
… that the concept of State aid is an objective one and that the
question of whether there is an advantage within the meaning of
Article 107(1) TFEU must be examined in the light of the anti-
competitive effects caused by the aid measure in question, and not
in the light of other factors such as the lawfulness of the measure
by which the aid is granted (…).

6. II. 1) Tax MeasuresII. 1) Tax Measures
From Banco Exterior (C-387/92) toFrom Banco Exterior (C-387/92) to
Luxleaks ?Luxleaks ?
Selectivity : the Paint Graphos testSelectivity : the Paint Graphos test
(C78/08)(C78/08)
Autogrill (T-319/10)Autogrill (T-319/10)

Tax differentation is not always aidTax differentation is not always aid

No predetermined category of undertakings orNo predetermined category of undertakings or
productionsproductions

National reference frameworkNational reference framework

7. II.2) Private investor testII.2) Private investor test
The difficulties of second guessingThe difficulties of second guessing
business decisionsbusiness decisions
Poste Italiane (T-525/08)Poste Italiane (T-525/08)

Not whether State is making a good deal butNot whether State is making a good deal but
whether undertaking receives an advantagewhether undertaking receives an advantage
Public undertakings and imputability :Public undertakings and imputability :
Commerz Nederland (C-242/13)Commerz Nederland (C-242/13)

8. II.3) Other areas of EU lawII.3) Other areas of EU law
Castelnou, T-57/11, 3 December 2014Castelnou, T-57/11, 3 December 2014

Consistent application EU lawConsistent application EU law

Matters intrinsically related to the subjectMatters intrinsically related to the subject
matter of the aid schemematter of the aid scheme
Greek Casinos, T-425/11, 11 SeptemberGreek Casinos, T-425/11, 11 September
20142014

controlling entry feescontrolling entry fees

106 or 107 ?106 or 107 ?

9. II.4) Recovery issuesII.4) Recovery issues
Ryanair T-500/12, 5 February 2015, groundRyanair T-500/12, 5 February 2015, ground
112112
… it must be recalled that the objective of the obligation on a State
to abolish aid found by the Commission to be incompatible with the
internal market is to restore the previous situation. That objective is
accomplished when the recipients have repaid the sum paid by way
of unlawful aid, thereby forfeiting the advantage which they had
enjoyed over their competitors on the market, and when the
situation prior to payment of the aid is restored (…)

10. II.4) Recovery issuesII.4) Recovery issues
Ryanair T-500/12, 5 February 2015, groundRyanair T-500/12, 5 February 2015, ground
112112
… it must be recalled that the objective of the obligation on a State
to abolish aid found by the Commission to be incompatible with the
internal market is to restore the previous situation. That objective is
accomplished when the recipients have repaid the sum paid by way
of unlawful aid, thereby forfeiting the advantage which they had
enjoyed over their competitors on the market, and when the
situation prior to payment of the aid is restored (…)