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 concept of aid is an objective concept based on the economic concept of advantage irrespective of its legal form . Article 107 TFEU does not distinguish between the measures of State intervention concerned by reference to their causes or aims but defines them in relation to their effects . The social , economic  or environmental nature  of the objectives pursued by the aid has no influence on  …

Objective advantage

The concept of aid is an objective concept based on the economic concept of advantage irrespective of its legal form . Article 107 TFEU does not distinguish between the measures of State intervention concerned by reference to their causes or aims but defines them in relation to their effects . The social , economic  or environmental nature  of the objectives pursued by the aid has no influence on the assessment of the competitive advantage granted. The capacity of the beneficiary  or the status of the institutions entrusted with the distribution and administration of the aid  is also irrelevant. It does not matter whether the State has granted its aid to offset its own role in the financial deterioration of the recipient undertakings , the costs of the public service obligations  or any additional costs generated by collective agreements . The subjective choices that might have been made by the beneficiaries of a tax scheme in the absence of such a scheme are not taken into account either . Likewise, the pursuit of a public health objective is not sufficient to rule out the classification of State aid .

The concept of advantage is determined in relation to other undertakings in the same Member State and not to undertakings in other Member States . In effect, where the classification as State aid involves the existence of effective competition between undertakings established in several Member States, the effects of that aid are assessed independently of the situation of competitors in the other States . A public scheme may therefore constitute an aid, although the advantage given does not place its beneficiary in a position as favorable as its competitors from other Member States . A State aid also cannot be justified by the existence of an unlawful aid in another Member State  or competition distortions resulting from disparities in legislation between the Member State and non-Member States insofar as EU undertakings are on an equal footing as regards those distortions .

As State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that  consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention. This could be the case in particular where several consecutive interventions constitute a single intervention where, having regard to their chronology, their purpose and the circumstances of the beneficiary undertaking, they are so closely linked that they are inseparable from one another . Similarly, although an arbitral award is not detachable from its execution, the payment of the sums at issue, in enforcement or by implementation of that award having constituted the measure subject to the Commission's assessment, the latter was therefore entitled to define the aid measure as the payment of the sums at issue in order to verify, as part of its assessment of the existence of State aid within the meaning of Article 107(1) TFEU, whether such a payment represented an economic advantage which the applicants would not have been granted under normal market conditions . Similarly, damages paid as compensation for loss of market share or as compensation for loss of storage of raw materials or, ultimately, for any head of loss resulting from the abolition of an aid scheme, escape classification as State aid if such damages meet the definition of an economic advantage within the meaning of these rules .

Commission Decision No 2006/621/EC of 2 August 2004, State aid in favor of France Telecom, LawLex200700001457JBJ; Case C-75/97 Belgium v Commission [1999] ECR I-3671, LawLex200500005080JBJ.

Case 173/73 Italy v Commission [1974] ECR 709, LawLex200400003458JBJ; Case C-56/93 Belgium v Commission [1996] ECR I-723, LawLex200500005307JBJ; Case T-67/94 Ladbroke Racing v Commission [1998] ECR II-1, LawLex200500005200JBJ, CMLR, 2002, 865-880, obs. HANCHER; Case T-204/97 EPAC v Commission [2000] ECR II-2267, LawLex200500005189JBJ: any responsibility which the State may bear for the financial deterioration of an undertaking does not affect the characterization of a State aid, defined in relation to its effects only; Case C-501/00 Spain v Commission [2004] ECR I-6717, at pt. 125.

Any responsibility which the Portuguese State may bear for the deterioration of EPAC's financial position does not affect the characterization of the guarantee in question as aid.

Case T-335/08 BNP Paribas and BNL v Commission, LawLex201000000822JBJ.

Case C-270/15 Belgium v Commission, Judgment of 30 June 2016, LawLex201600001201JBJ, State aid for financing of screening of transmissible spongiform encephalopathies in bovine animals.

Case 6/69 Commission v France [1969] ECR 523, LawLex200500005409JBJ: the classification as State aid may be upheld for a preferential rediscount rate applied for short and long-term credits given for exports even if that rate is close to those applied in the other Member States; Case T-298/97 Alzetta and others v Commission [2000] ECR II-2319, LawLex200500005194JBJ: an advantage conferred on an undertaking with a view to correcting an unfavorable competitive situation, which is not justified by economic criteria or which discriminates between economic operators established in different Member States, constitutes a State aid; Case C-73/03 Spain v Commission (Unpublished) [2004].

Case C-6/97 Italy v Commission [1999] ECR I-2981, LawLex200500005078JBJ: the aim, pursued by a Member State granting a tax credit to undertakings of a particular sector, intended to approximate the conditions of competition in that sector to those prevailing in other Member States, does not prevent that tax credit form being classified as State aid.

Case T-55/99 CETM v Commission [2000] ECR II-3207, LawLex200500005208JBJ: a public scheme cannot escape classification as aid on the grounds that the advantage conferred does not place its beneficiaries in a position as favorable as that of their competitors from other Member States. 

Case 78/76 Steinike & Weinlig [1977] ECR 595, LawLex200400002811JBJ: the potential existence of an unlawful State aid in another Member State should not justify a breach of Article 107 TFEU.

Commission Decision No 97/270/EC of 22 October 1996, Crédit d'impôt dans le secteur du transport routier de marchandises, LawLex200500005368JBJ: Disparities in legislation between the Member States on fuel tax levels in no way justify compensatory State aid in the form of tax credit granted to this industry only; No 98/182 of 30 July 1997, Aid granted by the Friuli-Venezia Giulia Region, LawLex200400002557JBJ.

Case C-399/10 P Bouygues, Judgment of 19 March 2013, LawLex201300000469JBJ.

Case T-624/15 RENV European Food SA, Judgment of 2 October 2024, LawLex202400007951JBJ.

Case 173/73 Italy v Commission [1974] ECR 709, LawLex200400003458JBJ: the alleged fiscal nature or social aim of a measure cannot suffice to exclude it from the scope of application of Article 107 TFEU where the measures of State intervention are defined in relation to their effects; Commission Decision No 97/811/EC of 9 April 1997, Aid granted by France to the textile, clothing, leather and footwear industries, LawLex200400002555JBJ: the reduction in social security contributions in the textile, clothing, leather and footwear industries, granted on an experimental basis for a period of 18 months in order to offset the costs involved in reorganizing working time for undertakings, constitute State aid; No 2007/256/EC of 20 December 2006, Aid scheme implemented by France under Article 39 CA of the General Tax Code, LawLex200700001560JBJ: the pursuit of a social objective consisting in combating tax avoidance does not prevent the classification as State aid from being found.

Case C-73/03 Spain v Commission (Unpublished) [2004]: a reduction in taxes usually owed as part of the income tax on capital gains realized when selling farm lands cannot be justified by a commercial or industrial policy objective such as the consolidating of farm lands; Case C-606-14 P Portovesme Srl, Judgment of 1 February 2017, not available in English: the fact that a Member State seeks, by unilateral measures, to harmonize the conditions of competition existing in a certain sector of the economy with those prevailing in other Member States or to compensate for potential disadvantages to which the companies set up in a certain region of a Member State are exposed, cannot prevent those measures from being characterized as State aid.

Commission Decision No 2001/371/EC of 21 December 2000, Exemption from mineral levies, LawLex200500004724JBJ: exemptions from a general regulation providing for fines under form of levies if pollution levels are exceeded; Case C-487/06 P British Aggregates v Commission [2008] ECR I-10505, LawLex200900000248JBJ: the need to take account of requirements relating to environmental protection cannot exclude selective measures, such as environmental levies, from the scope of Article 107.

Case T-228/99 Westdeutsche Landesbank Girozentrale v Commission [2003] ECR II-435, LawLex200500004822JBJ: it may be a public or private undertaking.

Case T-197/97 Weyl Beef Products and others v Commission [2001] ECR II-303, LawLex200500005169JBJ.

Case T-204/97 EPAC v Commission [2000] ECR II-2267, LawLex200500005189JBJ.

Case T-46/97 SIC v Commission [2000] ECR II-2125, LawLex200500005207JBJ.

Case C-251/97 France v Commission [1999] ECR I-6639, LawLex200500005070JBJ.

European Competition Law

378. Objective advantage

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Les décisions de justice citées dans ce paragraphe :

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378. Objective advantage

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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