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1 Preussen Elektra Article 107(1) TFEU Aid granted by a member state and through stateresources
Only advantages that are granted directly or indirectly
through State resources must be considered State aid as
embedded in Art. 107(1) TFEU (positive dimension)
Or = and
1 Stardust Article 107(1) TFEU Aid granted by a member state or through state resources
The mere fact that a public undertaking is under State
control is not sufficient for measures taken by that
undertaken to be imputed to the State. It is also necessary
to examine whether the public authorities must be
regarded as having been involved, in one way or another,
in the adoption of those measures (set of indicators for
imputability).
(positive and negative dimension)
Or = and
The fact that they constantly remain under public control
is sufficient for them to be categorized as State resources.
1 Adria- Wien Article 107(1) TFEU Aid
The concept of aids embraces not only positive benefits,
such as subsidies, but also measures which in various
forms relieve the charges normally included in the budget
of an undertaking (negative and positive dimension)
Favouring certain undertakings: selectivity objective
justification
A measure which, although conferring an advantage on its
recipient, is justified by the nature or general scheme of
the system of which it is part does not fulfil that condition
of selectivity. The measure was not justified by the nature
or general scheme of the system, since the underlying
ecological considerations did not justify the differential
treatment of undertakings that manufactured goods and
undertakings that provided services.
1 Gibraltar taxs reform Article 107(1) TFEU Favouring certain undertakings: selectivity
Entire tax system classified as selective.
The regime at issue, even though they are founded on
criteria that are in themselves of a general nature, in
practice discriminates between companies which are in
comparable situations with regard to the objective of the
proposed tax reform, namely to introduce a general tax
system of taxation for all companies established in
Gibraltar.
Combining those bases of assessment not only results in
taxation according to the number of employees and the
size of the business premises occupied, but also, due to
the absence of other bases of assessment, excludes from
the outset of any taxation of offshore companies, since
they have no employees and also do not occupy business
property.
, A different tax burden resulting from the application of a
‘general’ tax regime is not sufficient on its own to
establish the selectivity of taxation for the purposes of
Article 107(1) TFEU.
The fact that offshore companies are not taxed is not a
random consequence of the regime at issue, but the
inevitable consequence of the fact that the bases of
assessment are specifically designed so that offshore
companies, which by their nature have no employees and
do not occupy business premises, have no tax base under
the bases of assessments adopted in the proposed tax
reform.
2 Höfner and Elser Article 101(1) TFEU Cartels
Definition undertaking: an undertaking encompasses
every entity engaged in an economic activity, regardless of
the legal status of the entity and the way in which it is
financed.
2 SAT v. Eurocontrol Article 101(1)TFEU Exception to the concept of economic activity: public
power exception
Taken as a whole, Eurocontrol’s activities, by their nature,
their aim and the rules to which they are subject, are
connected with the exercise of powers relating to the
control and supervision of air space which are typically
those of a public authority.
2 Poucet and Pistre Article 101(1) TFEU Exception to the concept of economic activity: exception
for non-commercial activities
Sickness funds and the organization involved in the
management of the public social security system fulfil an
exclusively social function. That activity is based on the
principle of national solidarity and is entirely non-profit.
2 Consten and Grundig Article 101(1) TFEU Forms of collaboration: agreements
The wording of the provision on the prohibition of cartels
does not make a distinction as to which agreements is
applies to all agreements which operate between the
parties no distinction between horizontal and vertical.
Affect trade between member states
The agreement is capable of constituting a threat, either
direct or indirect, actual or potential, to freedom of trade
between member states in a manner which might harm
the attainment of the objectives of a single market
between member states.
2 Bayer Article 101(1)TFEU Agreement: apparently unilateral behaviour
Agreement concurrence of wills between at least two
parties. In certain circumstances, measures adopted or
imposed in an apparently unilateral manner have been
regarded as constituting an agreement. Existence of an
acquiescence (instemming) by the other partners, express
or implied, in the attitude adopted by the manufacturer.
, 2 ICI v. Commission Article 101(1) TFEU Concerted practices
Concerted practice does not have all the elements of a
contract but may inter alia arise out of coordination which
becomes apparent from the behaviour of the participants.
Although parallel behaviour may not by itself be identified
with a concerted practice, it may however amount to
strong evidence of such a practice if it leads to conditions
of competition which do not correspond to the normal
conditions of the market, having regard to the nature of
the products, the size and number of the undertakings,
and the volume of the said market.
2 Cartes Bancaires v. Article 101(1) TFEU Collusive conduct by object or effect by object
Commission In order to determine whether an agreement between
undertakings or a decision by an association of
undertakings reveal a sufficient degree of harm to
competition that may be considered a restriction of
competition by object, regard must be had to the content
of its provisions, its objectives and the economic and legal
context of which it forms a part. When determining that
context, it is also necessary to take into consideration the
nature of the goods or services affected, as well as the
real conditions of the functioning and structure of the
market in question.
2 STM Article 101(1) TFEU Affect trade between member states
Addition to Consten and Grundig: ‘direct or indirect,
actual or potential’… + may have influence on the pattern
of trade between member states.
2 Delimitis Article 101(1) TFEU Collusive conduct by object or effect by effect
minimus rule network of agreements
The contract was part of a network of agreements and it
could potentially affect the trade between Member
States. It was therefore necessary to analyse the effects of
all of the beer supply agreements in the network to
conclude whether there was an effect that had an inter-
state dimension.
3 Hoffmann- La Roche Article 102(1) TFEU Abuse of a dominant position dominance
The concept of the relevant market in fact implies that
there can be effective competition between the products
which from part of it and this presupposes that there is a
sufficient degree of interchangeability between all the
products forming part of the same market.
The dominant position relates to a position of economic
strength enjoyed by an undertaking which enables it to
prevent effective competition being maintained on the
relevant market by affording it the power to behave to an
appreciable extent independently of its competitors, its
customers and ultimately of the consumers.
The existence of a dominant position may derive from
several factors which, taken separately, are not necessarily
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