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 condition of selectivity may be fulfilled even if the number of recipients of the aid is not limited . Limiting the benefit of the measure to undertakings of a certain size, belonging to one or more specific sectors of activity, or located on a same territory, does not prevent from identifying a selective advantage, unless the nature and general scheme of the system justify such a differentiat …

Definition of categories of undertakings

The condition of selectivity may be fulfilled even if the number of recipients of the aid is not limited . Limiting the benefit of the measure to undertakings of a certain size, belonging to one or more specific sectors of activity, or located on a same territory, does not prevent from identifying a selective advantage, unless the nature and general scheme of the system justify such a differentiation. Thus this is the case for State measures granted to undertakings in relation to their sector of activity  or territory , size , date of creation  or legal form . However, it is possible that the geographic limitation of the measure does not constitute a selective criterion where the jurisdiction of the body dispensing the aid is limited to that territory . By contrast, the fact that the State at issue intends ultimately to extend the measure to all undertakings does not give out its selective nature .

The presence of one criterion of selection is sufficient for the condition of selectivity to be fulfilled. The selective nature of a tax measure which applies without distinction to all sectors of activity, all types of investments in real or movable property, and to all undertakings regardless of size, sector or seat, can therefore only result from a condition that the investments must be made in a geographically-limited area within a Member State .

Case C-409/00 Spain v Commission, Judgment of 13 February 2003, LawLex200500004601JBJ: the number of beneficiary undertakings  and the diversity of the sectors of activity concerned are not sufficient to call into question the selective nature of a State aid.

Case C-172/03 Heiser [2005] ECR I-1627, LawLex200500005299JBJ: the condition of selectivity inherent to the concept of State aid may be fulfilled for a tax provision applicable to all operators in the medical field as the offense may exist even if the measure concerns a whole economic sector; Case C-148/04 Unicredito Italiano [2005] ECR I-11137, LawLex200600001240JBJ: a tax aid scheme reserved for an economic sector, in this case the banking sector, even reserved for undertakings in that sector carrying out specific operations, is selective and cannot be considered to be a general measure of tax or economic policy; Case C-222/04 Cassa di Risparmio di Firenze and others [2006] ECR I-289, LawLex200800000247JBJ: a tax advantage in the form of exemption from retention of tax on dividends, granted by reference to sectors in which the undertaking exercises its activity, is selective; Case T-233/04 Netherlands v Commission [2008] ECR II-591, LawLex200800001087JBJ: a national measure which sets out an emission trading scheme for nitrogen oxides in favor of industrial facilities with an installed total thermal capacity of more than 20 MWth, is not selective where it relies upon an objective criterion without any sectoral connotation.

Case T-850/19 of 19 October 2022, LawLex202200008753JBJ: the Member State, which takes measures allowing undertakings in disaster areas to benefit from loans with interest which it subsidizes in whole or in part, or from guarantees which it grants without payment of commission, must be considered to have granted an advantage to those undertakings which would not have been able to benefit from it without its intervention in normal market conditions, without it being necessary to ascertain whether the market was functioning normally or was in a crisis.

Case C-200/97 Ecotrade v Altiforni e Ferriere di Servola [1998] ECR I-7907, LawLex200500005081JBJ: a system of special administration for insolvency is a State aid where it enables solely large industrial undertakings in difficulty which owe particularly large debts to certain classes of creditors to benefit from advantages derogating from the rules of ordinary law; Case C-295/97 Piaggio [1999] ECR I-3735, LawLex200500005302JBJ: a national legislation derogating from the rules of ordinary insolvency law, which gives large industrial undertaking in difficulty owing particularly large debts to public creditors advantages which cannot be claimed by other insolvent undertakings, sets out a State aid; Case T-55/99 CETM v Commission [2000] ECR II-3207, LawLex200500005208JBJ, the subsidy granted, among users of commercial vehicles, only to natural persons, SMEs, local and regional public authorities and local service providers, constitute a specific measure where it excludes large undertakings; Case C-409/00 Spain v Commission [2003] ECR I-1487, LawLex200500004601JBJ: an aid scheme in favor of natural persons and SMEs, to the exclusion of large undertakings, constitutes a selective measure within the meaning of Article 107(1) TFEU where the differentiation does not arise from the nature and structure of the system of charges in the general interest; See also on a measure in favor of SMEs only: Case C-351/98 Spain v Commission [2002] ECR I-8031, LawLex200500004850JBJ.

Commission Decision No 2000/795/EC of 22 December 1999, Aid implemented by Spain for Ramondín SA and Ramondín Cápsulas SA, LawLex200400002595JBJ: a tax measure constitutes a selective measure within the meaning of Article 107(1) TFEU where it reserves a reduction in the basis of assessment for corporation tax to newly established companies which invest a certain amount and create at least 10 jobs; Case T-346/99 Diputación Foral de Álava and others v Commission [2002] ECR II-4259, LawLex200500005046JBJ: a tax concession granted only to newly-established undertakings, to the exclusion of all others, constitutes a measure reserved to certain undertakings, within the meaning of Article 107 TFEU; Case T-92/00 Diputación Foral de Álava v Commission [2002] ECR II-1385, LawLex200500005052JBJ.

Case C-222-04 Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA, 10 January 2006, LawLex200600000429JBJ: the tax advantage in the form of an exemption from withholding tax on dividends granted in consideration of the legal form of the undertaking, whether a legal person under public law or a foundation, is selective. See also, Case T-679-16 Athletic Club v European Commission, Judgment of 26 February 2019, not available in English: the measure which is not intended to differentiate between non-profit entities and commercial undertakings, but between professional sports clubs with regard to access to the legal form of non-profit entity and its tax regime, is selective within the meaning of Article 107 TFEU.

Case C-88-03 Portuguese Republic, Judgment of 6 September 2006, LawLex200600001850JBJ: an aid measure in the form of a tax rate reduction is not selective on the sole ground that it applies only in a part of the national territory when it has been adopted by an autonomous infra-state entity acting within its geographical area of competence. See also, Case T-211-04 Government of Gibraltar, and others, Judgment of 18 December 2008, LawLex200900000023JBJ.

Case C-75/97 Belgium v Commission [1999] ECR I-3671, LawLex200500005080JBJ: When a Member State informs that it intends to extend to its entire economy measures restricted to a sector, even through elements likely to constitute a first stage towards generalization, this does not prevent those measures from being classified as State aid due to their effects.

Case T-308/00 Salzgitter v Commission [2004] ECR II-1933, LawLex200500004801JBJ.

European Competition Law

390. Definition of categories of undertakings

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390. Definition of categories of undertakings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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