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

To fall within the scope of application of Article 107(1) TFEU, the aid must consist in an advantage that is clear , i.e. particular and without consideration. According to the notice on the concept of State aid, an advantage exists when the financial situation of an undertaking is improved as a result of State intervention under conditions other than normal market conditions . Only the effect of  …

Definite advantage

To fall within the scope of application of Article 107(1) TFEU, the aid must consist in an advantage that is clear , i.e. particular and without consideration. According to the notice on the concept of State aid, an advantage exists when the financial situation of an undertaking is improved as a result of State intervention under conditions other than normal market conditions . Only the effect of the measure on the undertaking is relevant: the compulsory nature of the advantage for the undertaking is not taken into account. Furthermore, as the costs resulting from a regulatory obligation are considered as costs inherent to economic activity, their compensation provides an advantage to the undertaking. The fact that an advantage does not exceed the compensation does not exclude its existence, even when the measure offsets charges of a different nature and unrelated to the measure. Nor can the implementation of a call for tenders be the only means of excluding the existence of an advantage when the State sells or acquires goods or services from private undertakings not directly, but through other private undertakings, which are not subject to the obligation to use such a procedure .

The advantage must be particular , i.e. be clearly for one or more specific undertakings . This is the case where a subsidiary active in a competitive sector may have access to the customers of its parent company operating in a reserved market without providing consideration , where undertakings benefit from a mitigation of labor and budget costs as a result of public funding of the reduction in working hours , where operators declared insolvent may continue trading without complying with their tax and social security obligations as a result of the application by the State of legislation on bankruptcy , or where the measure in question gives the possibility to the undertakings concerned of monetizing the economic value of the emission reductions they achieve, by converting them into tradable emission allowances or avoiding the risk of having to pay fines when they exceed the NOx emission limit per unit of energy by buying such emission allowance from undertakings falling within the measure in question, whereas the other undertakings do not have those possibilities . By contrast, no particular advantage can be deduced from the possible loss of tax revenue as a result of the application of a legal system laying down a framework for relations between insolvent undertakings and their creditors, which prohibits absolutely individual actions for enforcement and rules on the suspension of interest on all debts owed by the undertaking and the correlated reduction in creditors' profits .

There must be no consideration for the advantage  or such consideration must be proportionally insufficient . This is the case where the remuneration received in consideration for the service is less than that which would have been claimed under normal market conditions . The EU authorities give a broad definition of the advantage for no consideration and a State measure may be classified as State aid despite the participation of its beneficiary in its funding. This is the case for a measure which is wholly or partially financed by contributions imposed by the public authority . Lastly, an advantage may be clear whether permanent or temporary . It may also not result from a direct and clear mobilization of State resources . However, the fact that, as a result of the measure under examination, the casinos charging an admission fee of EUR 6 pay less to the State than the casinos charging an admission fee of EUR 15 is not sufficient to demonstrate the existence of an advantage in favor of the casinos falling within the first category, insofar as the amounts paid to the State by the casinos in respect of public fees on the admission tickets are simply a proportion of what each casino receives as admission fees .

Case T-668/21, Judgment of 26 October 2022, Sicilia Regionale Marittima SpA, not available in English, which states that the fact that aid will not actually materialize until the occurrence of future and uncertain events precludes the existence of an advantage.

Case C-163/22 P Gmina Miasto Gdynia, Judgment of 22 June 2023, not available in English, which stresses that the fact that the beneficiary is not the owner of the airport land concerned or of the airport infrastructure does not call into question the existence of the advantage.

Commission Decision No 2000/392/EC of 8 July 1999, Measure implemented by the Federal Republic of Germany for Westdeutsche Landesbank, LawLex200400002589JBJ: transfer of the capital of a non-profit credit institution pursuing a particular task to a public-law institution engaged in commercial activities in order to raise new capital for the latter, without appropriate remuneration, constitutes a State aid; Commission Decision No 2002/C 280/04/EC of 16 October 2002, on EDF status of industrial and commercial public body: the fact that the Tax Authorities tolerated irregular provisions from an undertaking which enabled it to benefit from a substantial tax concession which was not owed, characterizes an advantage within the meaning of Article 107(1) TFEU; CA Admin Nancy No 03NC00859 of 18 December 2003: the contractual gap between the financial interest of a Chamber of Commerce and Industry and an airline's non-binding commitments, in consideration, to promote tourism and to fulfill objectives of attendance, characterizes a financial aid for that airline.

Case C-39/94 SFEI and others [1996] ECR I-3547, LawLex200500005133JBJ; Commission Decision No 97/81/EC of 30 July 1996, Aid granted by the Austrian Government to Head Tyrolia Mares, LawLex200500004783JBJ: capital injections and the offsetting of losses in connection with the privatization of an undertaking constitute State aid where they are not compensated by the sale price received by the public authorities; No 1999/718/EC of 24 February 1999, Daewoo Electronics, LawLex200500004736JBJ: the use of land for the purpose of building a plant nine months before the deed of sale was formalized constitutes a State aid insofar as, without paying any financial consideration for the land, the beneficiary of a subsidy for the construction of the plant could begin the construction works without delay; No 2000/480/EC of 8 July 1999, Aid granted by France to the Crédit Agricole group, LawLex200400002591JBJ: the right to collect notaries' mandatory deposits granted to a specific bank, on virtually free terms for collecting and keeping those deposits, mobilizes State resources within the meaning of Article 107(1) TFEU.

Case C-39/94 SFEI and others [1996] ECR I-3547, LawLex200500005133JBJ: the provision of a logistical and commercial assistance by a public undertaking to its subsidiaries, which are governed by private law, and carry on an activity open to free competition, is capable of constituting State aid if the remuneration received in return for the provided services is less than that which would have been demanded under normal market conditions. - The conduct of the public authority must systematically be compared to that of a private operator under normal market conditions to check whether or not the advantage is gratuitous in nature: Case T-127/99 Diputación Foral de Álava and others v Commission [2002] ECR II-1275, LawLex200500004880JBJ.

Case 78/76 Steinike & Weinlig [1977] ECR 595, LawLex200400002811JBJ: an advantage that is wholly or partially financed by contributions imposed by the public authority to its beneficiary does not lose its gratuitous character - contrary decision: Case C-345/02 Pearle and others [2004] ECR I-7139, LawLex200500004505JBJ, which rejects the classification as State aid where the costs incurred for a collective advertising campaign for the benefit of undertakings in a given sector from levies imposed by a trade association governed by public law are not covered by resources made available to national authorities but are offset in full by the levies imposed on the beneficiaries.

Case T-67/94 Ladbroke Racing v Commission [1998] ECR II-1, LawLex200500005200JBJ: a fiscal measure constitutes a State aid, whether permanent or temporary.

Case T-204/97 EPAC v Commission [2000] ECR II-2267, LawLex200500005189JBJ; Case C-278/00 Greece v Commission [2004] ECR 3997, LawLex200500004503JBJ; Case C-66/02 Italy v Commission [2005] ECR 10901, LawLex200700001460JBJ.

Case T-425/11 Greece v Commission, Judgment of 11 September 2014, LawLex201700000990JBJ.

Case C-331/20 P, Judgment of 17 November 2022, LawLex202200009900JBJ, which held that the General Court had erred in law in holding that airlines which had entered into contracts with airport operators for the provision of air transport, marketing and advertising services were to be considered as having been granted an “advantage” within the meaning of Article 107(1) TFEU, on the grounds that the remuneration paid to them under those contracts did not constitute consideration for services satisfying genuine needs on the part of the autonomous region in question, and that the contracts had moreover been concluded by the airport operators without the prior implementation of a tendering procedure or an equivalent procedure.

Case C-72/91 Sloman Neptun v Bodo Ziesemer [1993] ECR I-887, LawLex200500004927JBJ, which does not retain the classification as State aid where the system in question, which may result in a possible loss of tax revenue, only alters the framework within which contractual relations are formed between undertakings and their employees, without creating a particular advantage.

Case 61/79 Amministrazione delle finanze dello Stato v Denkavit italiana [1980] ECR 1205, LawLex200500005400JBJ: a national tax system, which enables a taxpayer to contest or claim repayment of a tax which is incompatible with EU law, does not constitute as State aid insofar as the duty to pay or repay is caused by the fact that those sums were not payable; See also: Case C-480/98 Spain v Commission [2000] ECR I-8717, LawLex200500004969JBJ: although the loss of tax and social security revenue for a State as a result of the application of legislation on court-supervised recovery schemes and insolvency should not in itself justify treating that legislation as aid, the undertakings declared insolvent on the application of private creditors only which could continue trading, free of any conditions, for several years without complying with their tax and social security obligations, have benefited from an unlawful particular advantage; Case C-5/01 Belgium v Commission [2002] ECR I-11991, LawLex200500004860JBJ.

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

Case C-5/01 Belgium v Commission [2002] ECR I-11991, LawLex200500004860JBJ.

Case C-480/98 Spain v Commission [2000] ECR I-8717, LawLex200500004969JBJ.

Case C-279/08 P Commission v Netherlands, LawLex201200000112JBJ.

Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907, LawLex200500005081JBJ.

European Competition Law

377. Definite advantage

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377. Definite advantage

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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