European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

The transfer of State resources may consist in the allocation of funds by the public authority and also in the waiver of revenues, even if this is on a temporary basis . In the case of foregone State revenues, it must be established whether the State is acting as a regulator: it may then legitimately decide not to maximize the revenues that would normally have been collected, without falling under …

Methods

The transfer of State resources may consist in the allocation of funds by the public authority and also in the waiver of revenues, even if this is on a temporary basis . In the case of foregone State revenues, it must be established whether the State is acting as a regulator: it may then legitimately decide not to maximize the revenues that would normally have been collected, without falling under State aid rules. In such circumstances, the operators concerned must be treated in accordance with the principle of non-discrimination, and there must be a clear link between the achievement of the regulatory objective and the renounced revenue.

An aid cannot be assessed without taking into account the method by which it is financed as this forms an integral part of the measure . Thus, both the allocation to a specific undertaking of part of the revenue from charges and the collection from users of the proportion corresponding to the sum so allocated can constitute unlawful State aid . The question whether a tax is an integral part of an aid financed by a tax depends not on the existence of a competitive relationship between the person liable to pay the tax and the beneficiary of the aid, but on whether the method of financing was necessarily hypothecated to the aid in question under the relevant national legislation in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid . Thus, the fact that taxes have been levied in order to cover the financing of public broadcasting in general, does not in itself establish that those taxes have been allocated for the funding of the aid at issue, in the absence of any binding rule of allocation under the provisions of the budget . The revenue must not be used for measures other than the aid measure in accordance with the competent authorities' discretion . A difference in the treatment of operators in relation to allocation may however be justified due to the nature and general scheme of the system of charges in question . Lastly, the transfer does not need to be based on a legal obligation, where the State has given commitments, in particular through declarations of support .

The waiving of resources by the State may also be characterized as aid since, even if it does not involve an actual transfer of resources, it places the persons to whom it applies in a more favorable situation than other undertakings . The transfer may consist of measures which mitigate the charges which are normally included in the budget of an undertaking . A waiver of claims, the rescheduling of debts, exemptions  or tax concessions  interest subsidies  or the free allocation of emission allowances  therefore constitute State aid.

Commission Decision No 93/625/EC of 22 September 1993, Aid granted by the French Government to the Paris mutuel urbain (PMU), LawLex200400002492JBJ.

Case 47/69 France v Commission [1970] ECR 487, LawLex200400003456JBJ; Commission Decision No 2000/206/EC of 20 July 1999, Aid scheme applied in Greece to cotton, LawLex200400002582JBJ; Case C-34/01 Enirisorse [2003] ECR I-14243, LawLex200500004598JBJ.

Case C-6/97 Italy v Commission [1999] ECR I-2981, LawLex200500005078JBJ; Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, LawLex200500005001JBJ.

Case C-156-98 Federal Republic of Germany, Judgment of 19 September 2000, LawLex200500004914JBJ: the tax relief which enables investors to acquire holdings in undertakings on more advantageous tax terms constitutes a transfer of state resources to those undertakings, despite the interposition of an autonomous decision on the part of the investors; Case C-465/20 P Commission v. Ireland, Judgment of 10 September 2024, LawLex202400006328JBJ, which holds that a Member State forgoes tax revenue from the branches of a large group if the taxable profits of the group are not used to finance the investment. Case C-465/20 P, LawLex202400006328JBJ, which holds that a Member State forgoes tax revenue from the branches of a large group when the tax rulings in question approve profit allocation methods which lead to a result that separate and autonomous undertakings acting under market conditions would not have accepted, by reducing the taxable profits of the branches and, therefore, the amount of corporation tax they are required to pay compared with other companies taxed in that Member State whose taxable profits reflect prices determined on the market under arm's length conditions; Case T-724/22, Judgment of 23 October 2024, not available in English, which held that a derogatory tax regime benefiting, in particular, companies registered in a free zone, on a purely formal basis and exclusively for the purposes of international transfers of income, implies an absence of tax receipts in the coffers of the Member State in question, with the result that this regime was financed by means of State resources.

Case T-850/19, Judgment of 19 October 222, LawLex202400008126JBJ, which considers that interest subsidies necessarily encumber the financial resources of the Member State which granted the loan in question when the interest payable was financed, in whole or in part, by State resources.

Case C-279-08/P Commission v Netherlands [2011] ECR p. I-7671, LawLex201200000112JBJ.

Case C-34/01 Enirisorse [2003] ECR I-14243, LawLex200500004598JBJ.

Case C-174/02 Streekgewest [2005] ECR I-85, LawLex200600000034JBJ; Case C-449/14 P DTS Distribuidora de Televisión Digital SA, Judgment of 10 November 2016, LawLex201700000246JBJ: if such hypothecation of aid exists, the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market; in such a case, the notification of the aid must also cover the method by which it is financed, so that the Commission may consider it on the basis of all the facts, since, if this requirement is not satisfied, it is possible that the Commission may declare that an aid measure is compatible, when, if the Commission had been aware of its method of financing, it could not have been so declared.

Case T-275-11 TF1, Judgment of 16 October 2013, not available in English.

Case C-175/02 Pape [2005] ECR I-127, LawLex200600000035JBJ; Case C-333/07 Regie Networks [2008], LawLex200900000241JBJ.

Case C-128/03 AEM [2005] ECR I-2861, LawLex200500009576JBJ.

Commission Decision No 2006/621/EC of 2 August 2004, State aid in favor of France Telecom, LawLex200700001457JBJ.

Case C-387/92 Banco Exterior de España v Ayuntamiento de Valencia [1994] ECR I-877, LawLex200500005001JBJ; Case C-6/97 Italy v Commission [1999] ECR I-2981, LawLex200500005078JBJ.

Case C-404/97 Commission v Portugal [2000] ECR I-4897, LawLex200500004963JBJ.

European Competition Law

376. Methods

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Les décisions de justice citées dans ce paragraphe :

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376. Methods

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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