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

An aid measure does not constitute a State aid where there is no transfer of a State resource . 
The Court of Justice retains a narrow definition of that concept; it considers that the obligation for private undertakings to purchase electricity at minimum prices does not involve any direct or indirect transfer of State resources to electricity supply undertakings, as the fact that this is an oblig …

Conditions

An aid measure does not constitute a State aid where there is no transfer of a State resource . 

The Court of Justice retains a narrow definition of that concept; it considers that the obligation for private undertakings to purchase electricity at minimum prices does not involve any direct or indirect transfer of State resources to electricity supply undertakings, as the fact that this is an obligation imposed by statute is not capable of conferring upon it the character of State aid . In this case, the measure is a simple price regulatory measure that does not involve a transfer of State resources.

The possibility for an undertaking to advertize on a public radio station , or the non-application of generally applicable legislation concerning fixed-term employment contracts for one undertaking , which do not involve any direct or indirect transfer of State resources, cannot be classified as State aid. The transfer cannot either be imputed to the State where the cost of the advantage granted is on its beneficiaries  or is borne by consumers .

Transfer in effect implies the existence of an additional financial burden borne directly or indirectly by the State or by bodies designated or established by the State for that purpose . A tax concession may thus characterize a transfer of State resources where it represents a loss of tax revenue . This is not the case where the State waives an irrecoverable debt . Lastly, an aid granted to operators to purchase shares in producers' organizations constitutes an indirect economic advantage to those organizations due to an increase in their capital . The classification as State aid may be upheld in relation to indirect beneficiaries without it being necessary to establish the existence of aid in respect of direct beneficiaries .

On the other hand, the origin of the resources is irrelevant, as long as they are subject to public control, even if they do not become the property of the public authority. State resources may also be transferred if they are available to several Member States which jointly decide on their use. Similarly, resources originating from the EU, the European Investment Bank or the European Investment Fund, or from international financial institutions such as the International Monetary Fund or the European Bank for Reconstruction and Development, are considered to be State resources, provided that the national authorities have discretionary powers as to their use. On the other hand, a regulation that leads to a financial redistribution from one private entity to another without further State intervention does not entail a transfer of State resources if the money circulates without passing through a public or private body designated by the State to manage the transfer. This is the case when network operators use their own resources to grant the sums provided for by law to beneficiaries, and the funds transit from private entity to private entity, retaining a private character throughout their journey .

See concerning the absence of a transfer, Case C-508/21 P Commission v Interessengemeinschaft der Grenzhändler (IGG) and Dansk Erhverv, Judgment of  14 September 2023,  which held that insofar as the practice of border shops of not collecting deposits constitutes conduct previously defined as legal and lawful, which does not expose these shops to penalties, the absence of a fine is not a measure granted through state resources.

Case C-379/98 PreussenElektra [2001] ECR I-2099, LawLex200500004892JBJ.

Case T-445/05 Associazione italiana del risparmio gestito and Fineco Asset Management v Commission [2009] ECR II-289, LawLex200900001316JBJ.

Case T-409/21 Germany v Commission, Judgment of 24 January 2024, .

Case T-613/97 Ufex and others v Commission [2000] ECR II-4055, LawLex200500005209JBJ.

Case C-52/97 Viscido and others v Ente Poste Italiane [1998] ECR I-2629, LawLex200500005090JBJ, See also: Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, LawLex200500004877JBJ: the national system of protection of workers, which exempts small businesses from the obligation to pay compensation to employees for unjustified dismissal, does not constitute State aid in the absence of any direct or indirect transfer of State resources.

Case C-345/02 Pearle and others [2004] ECR I-7139, LawLex200500004505JBJ: the funding of a collective advertising campaign for the benefit of the undertakings in a sector from levies imposed by a public-law trade association, does not constitute the transfer of a State resource insofar as the costs incurred for the campaign are offset in full by the levies payable by the undertakings.

Case 82/77 Van Tiggele [1978] ECR 25, LawLex200500005387JBJ: the fixing by a national authority, at the exclusive expense of consumers, of minimum retail prices for a product does not constitute a State aid in the absence of any direct or indirect transfer of State resources. Case

Case C-200/97 Ecotrade Srl, Judgment of 1 December 1998, LawLex200500005081JBJ.

Case C-156/98 Germany v Commission [2000] ECR I-6857, LawLex200500004914JBJ: a tax concession which enables investors to take up holdings in undertakings on conditions which are more advantageous in tax terms constitutes a transfer of State resources to those undertakings; Case T-93/02 Confédération nationale du Crédit mutuel v Commission [2005] ECR II-143, LawLex200500005214JBJ: the fact that a Member State renounces tax revenues may involve an indirect transfer of State resources, capable of being treated as aid to economic operators other than those to which the tax advantage is accorded directly.

Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907, LawLex200500005081JBJ: the possible losses of tax revenues as a result of the application of a legal system laying down a framework for relations between insolvent undertakings and theirs creditors, which absolutely prohibits individual actions for enforcement, decides the suspension of interest on all debts owed by the undertaking, and the correlative reduction in creditors' profits, do not constitute a State aid insofar as the existence of an additional financial burden borne directly or indirectly by the public authorities may not be automatically inferred therefrom; Case T-110/97 Kneissl Dachstein v Commission [1999] ECR II-2881, LawLex200500005237JBJ; Case T-123/97 Salomon v Commission [1999] ECR II-2925, LawLex200500005236JBJ: the conversion of a shareholder loan into equity by a public undertaking does not result in a transfer of public resources where, due to a serious over indebtedness of the beneficiary undertaking, it only involves a waiver of repayment of an irrecoverable debt; also: Commission Decision No 1999/395/EC of 28 October 1998, State aid granted by Spain to Sniace SA, LawLex200500005336JBJ: the non-payment of environmental levies by the tax authorities from an undertaking in difficulty or the partial cancellation of debts granted by a city council does not constitute State aid where they relate to unenforceable debts.

Commission Decision No 2007/57/EC of 7 June 2006, Aid granted by Germany for the acquisition of shares in winegrowers' cooperatives, LawLex200700000282JBJ.

European Competition Law

375. Conditions

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375. Conditions

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Les décisions de justice citées dans ce paragraphe :

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