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

Pursuant to Article 107(1) TFEU, State measures constitute prohibited aid where they distort or threaten to distort competition. Any State measure which strengthens the position of beneficiary undertakings in relation to competitors is likely to constitute a prohibited aid . The Commission Notice on the notion of State aid recalls that it is enough that the aid allows an undertaking to maintain a  …

Appreciable anticompetitive effect

Pursuant to Article 107(1) TFEU, State measures constitute prohibited aid where they distort or threaten to distort competition. Any State measure which strengthens the position of beneficiary undertakings in relation to competitors is likely to constitute a prohibited aid . The Commission Notice on the notion of State aid recalls that it is enough that the aid allows an undertaking to maintain a stronger competitive position than it would have had if the aid had not been provided (pt. 189) . The risk of the aid recipient being in a dominant position does not mean that this negative effect of the aid in terms of distortion of competition outweighs the positive effects of the project in terms of its contribution to an objective of European interest .

State aid may affect trade between Member States and distort or threaten to distort competition, even though the market concerned is only partially open to competition. It is sufficient that, at the time an aid measure is put into effect, there is a situation of effective competition on the market concerned, since classification as State aid is not subject to the condition that the market concerned has first been fully liberalized .

To assess the existence of a State aid, the Commission is not required to check the real effect of the measure on competition . A merely potential effect is sufficient to classify the measure as State aid . It is also not necessary to delimit the relevant market . For the purpose of assessing the effect on competition of the measures  granted to an operator, it is necessary to take account of the  activities of which that undertaking is itself specifically and actually  in charge . When assessing  both the actual and potential effects of an aid on competition, the EU authority, which conducts its analysis in a dynamic perspective, may further rely upon assessment criteria arising after the adoption of a plan to grant or alter aid . Thus, the privatization of the beneficiary of unlawful aid does not bring about the effective repayment of that aid, even if the Member State was able to profit from it, insofar as that circumstance would not have prevented that company from continuing to have the actual benefit, after the change in share ownership, of the advantage flowing from the electricity contract at issue, without removing the distortion of competition caused by the advantage arising from it . The date that the measure is liable to distort competition is the date of the acquisition by the beneficiary of a definitive right to receive the aid .

Case C-66/02 Italy v Commission [2005] ECR 10901, LawLex200700001460JBJ; Cases T-755/15 and T-759/15 Grand Duchy of Luxembourg, Judgment of 24 September 2019, LawLex201900001129JBJ, holding that the tax ruling by the national tax authorities reducing the undertaking's tax burden and providing additional resources to the whole group to which it belongs, is liable to affect competition and distort trade on the market insofar as it has the effect of reducing the pricing conditions of its intra-group loans. The fact that a Member State entrusts a public service subject to a legal monopoly to a public undertaking does not lead to distortion of competition just as an advantage granted to that undertaking does not distort competition, unless the legal monopoly excludes not only competition in the market, but also for the market, in the sense that it rules out any potential competition to become the exclusive provider of the service in question, Case C-385/18 Arriva Italia Srl and others, Judgment of 19 December 2019, LawLex202000000276JBJ, concerning the allocation of the sum of EUR 70 million to the exclusive provider of railway infrastrcuture management services used for passenger transport services in the Apulia Region of Italy.

For an example, see Case T-216/21 Ryanair DAC, Judgment of 20 December 2023, LawLex202400004760JBJ, considering that the granting of an aid measure is likely to strengthen the position of a national airline to the detriment of a low-cost airline and to lead prima facie to substantial damage to its competitive position on the market, by causing a loss of earnings or a less favorable development than that which would have been recorded in the absence of this measure, given that the airlines compete on a large number of routes to and from the Member State in question, that the applicant was planning to expand its business by launching new routes, and that it was in a relatively strong position compared with the national airline, which was facing the risk of insolvency or even of leaving the market, having announced an action plan aimed at intensifying competition with low-cost airlines.

Case C-638/19 P Commission v Germany, Judgment of 25 January 2022, .

Case T-390/20 Scandlines Danmark ApS, Judgment of 28 February 2024, LawLex202400007947JBJ.

Case C-702/20 “ DOBELES HES ” SIA and Sabiedrisko pakalpojumu regulēšanas komisija, Judgment of 12 January 2023, LawLex202300001359JBJ.

Case C-372/97 Italy v Commission [2004] ECR I-3679, LawLex200500004506JBJ.

Case T-298/97 Alzetta and others v Commission [2000] ECR II-2319, LawLex200500005194JBJ; Case T-314/15 Greece v Commission, Judgment of 13 December 2017, not available in English.

Case T-304/04 Italy v Commission [2006] ECR II-64; Case T-314/15 Greece v Commission, Judgment of 13 December 2017, LawLex202000002128JBJ : insofar as the Commission has explained how the disputed aid is likely to distort competition and affect trade between Member States, it is not required to carry out an economic analysis of their potential consequences on the competing ports, to identify the relevant geographical market, or to check whether or not the recipient has used the aid.

Cases C-174/19 P and C_175/19 P Scandlines Danmark ApS, Judgment of 6 October 2021, LawLex202100005507JBJ.

Case T-132/96 Freistaat Sachsen and others v Commission [1999] ECR II-3663, LawLex200500005160JBJ.

Case C-357/14 P Electrabel (SA), Judgment of 1 October 2015, LawLex201500001182JBJ.

European Competition Law

393. Appreciable anticompetitive effect

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Les notions juridiques connexes

393. Appreciable anticompetitive effect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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