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Problem 8 (European Union Law)
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This document contains the learning objectives of problem 8 (European Union Law). In English.
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PROBLEM 8Learning objectives:
1. What are the rules regarding the offering by states of (State) aid (in EU competition law)?
2. Solve the problem: Are the alleged tax advantages granted by Italy to Samsung in beach of European
competition law / can the alleged tax advantages be qualified as unlawful State aid? (niet uitgewerkt)
Literature:
- E-lesson on State aid (Articles 107-108)
Other:
- De Minimis Regulation, Commission Regulation (EU) No 1407/2013 of 18 December 2013 on the application
of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid
- Council Regulation (EU) No 2015/1589 of 13 July 2015 laying down detailed rules for the application of
Article 108 of the Treaty on the Functioning of the European Union
Case law:
PreussenElektra (C-379/98) Belgium v. Commission-case (C-75/97)
Stardust (C-482/99) Portugal v. Commission-case (C-88/03)
Commission v. Italy-case (C-75/97) Heiser (C-172/03)
Adria-Wien (C-143/99) CELF (C-199/06)
1. WHAT ARE THE RULES REGARDING THE OFFERING BY STATES OF (STATE) AID?
Introduction
Sometimes a (private) sector or undertaking receives aid from a Member State.
• This may happen to create or rescue jobs or to stabilize or stimulate an economic sector.
• As a result, the (private) sector or the undertaking in question is given an advantage over other
similar sectors or undertakings that do not receive such aid.
• This can interfere with competition, but is also detrimental for taxpayers, because it is paid with
taxpayers' money that could have been used differently.
• Given that the financial capacities of Member States within the EU differ significantly, allowing
them to freely subsidize their home industries would endanger a fair level-playing field within the
internal market.
In view of these potential dangers for free competition and the internal market, the EU Treaties contain
a second section within the competition chapter.
• Article 108(3), third sentence TFEU provides for a standstill clause for Member States for all state
aid that is incompatible with the internal market, as defined by Article 107 TFEU.
• This means that Member States are, as a matter of principle, not allowed to provide any kind of
state aid to companies or sectors.
• Article 107 TFEU sets out criteria for when a public intervention constitutes State aid that is
incompatible with the internal market and Article 108 TFEU provides the procedural frame for
the control of State aid within the EU.
1
, Step-by-step overview to solve case study on State aid (Article 107 TFEU):
Article 107 TFEU
• Contains a general prohibition of State aid that distorts competition and affects trade within the
internal market.
• Paragraphs 2 and 3 contain examples of measures that are allowed
In order for a measure to constitute State aid falling under Article 107(1) TFEU, it must:
(1) Involve the grant of an economic advantage
(2) Be financed by the State or through State resources
(3) Be selective (favoring certain undertakings or the prohibition of certain goods)
(4) Distort or threaten to distort competition, and
(5) Affect trade between Member States
Economic advantage (1)
• Not all payments made by the State out of State resources will automatically constitute State
aid
• For Article 107(1) TFEU to apply, the State must also act above the market
o Where the State acts under ‘normal market conditions’ (for instance when buying
office equipment), the use of State resources will not count as State aid
2
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