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

As for restrictive practices or abuse of a dominant position, the classification as State aid requires that trade between Member States is likely to be affected. This condition cannot be dissociated from the restriction of competition condition with which it is generally examined. The Court of Justice has held that the criteria relating to the distortion of competition and the effect on trade betw …

Concept

As for restrictive practices or abuse of a dominant position, the classification as State aid requires that trade between Member States is likely to be affected. This condition cannot be dissociated from the restriction of competition condition with which it is generally examined. The Court of Justice has held that the criteria relating to the distortion of competition and the effect on trade between Member States are met where an aid strengthens the position of an undertaking compared with other undertakings competing in the Union's internal trade .The assessment of the condition relative to the affect on trade between Member States consists in examining whether one Member State has an advantage over the undertakings or productions of the other States whereas the analysis of the condition relative to selectivity can only be assessed in the context of a single Member State and only results from an analysis of the difference in treatment between the undertakings or productions of that State alone . A measure could not affect trade if it falls within a market closed to competition .

Similarly, the relatively low amount of the aid or the relatively small size of the recipient undertaking does not, a priori, exclude the possibility that trade between Member States may be affected or that competition may be distorted, insofar as the fact that the recipient undertakings operate in a sector which is particularly exposed to competition plays a decisive role in the assessment of the effect of aid . Aid is therefore likely to affect trade between Member States when it provides additional funds to beneficiary clubs that enhance their ability to attract or retain the best players and their chances of winning the competitions in which they participate and when the national first and second division clubs, including the beneficiary clubs, compete with clubs in their own countries, but also abroad, to capture revenues derived from broadcasting, merchandizing and sponsorship fees considering, in addition, that the clubs have an international ownership structure . An export aid may affect trade between Member States although 90% of the production of the recipient undertaking is exported outside the European Union. The risk of trade between Member States being affected therefore results from the interdependence of markets on which EU undertakings operate . Furthermore, the granted aid, which can allow the recipient to withdraw from non-profitable third markets, creates a risk that its activities be redirected towards the internal market .

The fact that the activity of the recipient undertaking is limited to only one Member State does not prevent intra-Union trade from being affected. In a sector where there was no over-capacity, the indirect impact on competition could then result from the real or potential effects of the measure at issue on the internal production which can be maintained or increased, accordingly reducing the possibilities of import . Therefore, public subsidies granted to undertakings supplying, at a local or regional level, shipbuilding or ship conversion services have an effect on trade between Member States where it is quite possible that these undertakings are in competition with shipyards established in another Member State . Funds earmarked for the financing of a public interest service scheme in the electricity sector (PIS) are likely to affect trade between Member States, insofar as, where a Member State grants aid to undertakings, internal activity may be maintained or increased as a result and the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced, even if the recipient undertakings are not themselves involved in intra-Community trade . Likewise, aid which only concerns a local urban heating affects trade between Member States where it strengthens the recipient's in intra-Union trade of energy .

Effect on intra-Union trade does not assume that there has been effective participation in intra-Union trade stricto sensu . Trade between Member States may be affected although the recipient undertaking has not previously participated in intra-Union trade where the aid allows it to acquire a position which enables it to penetrate the market of another Member State . It is sufficient that the aid may affect intra-Union trade . Likely, effect on trade may be direct  or indirect . Therefore, on principle, State aid in the agricultural field may affect intra-Union trade whether their effect is current, potential, direct or indirect .

The effect on trade between Member States must be significant. The significance results from several factors being met; such factors, taken alone, would not be necessarily decisive. However, the finding of a State aid does not require a significant effect on intra-EU trade where the de minimis aid threshold is exceeded . To assess the significant effect on trade between Member States, the EU authorities take into account the market share of the recipient undertakings , the cumulative effect resulting from the multiplication of successive aid granted to the same undertakings , the strengthening of the export capacity ,  intensity of competition on the market , that the market in question has been involved in a liberalization process , the vulnerability of the market due to stagnant demand, unused production capacity and steady decline in employment  or the number of incompatibility decisions already adopted by the EU competition authorities in the same sector .

Case C-332/18 P Mytilinaios Anonymos Etairia, Judgment of 11 December 2019, LawLex201900001521JBJ.

Case T-538/11 Belgium v Commission, Judgment of 25 March 2015, LawLex201700001319JBJ.

Case T-303/05 AceaElectrabel v Commission.

Case 102/87 France v Commission [1988] ECR 4067, LawLex200500004462JBJ.

Case C-66/02 Italy v Commission [2005] ECR 10901, LawLex200700001460JBJ; Case C-148/04 Unicredito Italiano [2005] ECR I-11137, LawLex200600001240JBJ.

Case T-298/97 Alzetta and others v Commission [2000] ECR II-2319, LawLex200500005194JBJ; Case C-372/97 Italy v Commission [2004] ECR I-3679, LawLex200500004506JBJ; Case C-298/00 P Italy v Commission [2004] ECR I-4087, LawLex200500004504JBJ; Case C-66/02 Italy v Commission [2005] ECR 10901, LawLex200700001460JBJ: for tax benefits; Case C-148/04 Unicredito Italiano [2005] ECR I-11137, LawLex200600001240JBJ: for a tax relief; Case T-304/04 Italy v Commission [2006] ECR II-64.

Commission Decision No 97/762/EC of 9 July 1997, EPAC, LawLex200400002530JBJ; Case T-204/97 EPAC v Commission [2000] ECR II-2267, LawLex200500005189JBJ.

Case 102/87 France v Commission [1988] ECR 4067, LawLex200500004462JBJ: a national measure which favors the increase or maintaining of domestic production.

Case C-346/03 Atzeni and others [2006] ECR I-1875, LawLex200700000271JBJ.

Case T-92/00 Diputación Foral de Álava v Commission [2002] ECR II-1385, LawLex200500005052JBJ.

Case C-351/98 Spain v Commission [2002] ECR I-8031, LawLex200500004850JBJ; Case C-372/97 Italy v Commission [2004] ECR I-3679, LawLex200500004506JBJ; Case C-298/00 P Italy v Commission [2004] ECR I-4087, LawLex200500004504JBJ.

Case C-113/00 Spain v Commission [2002] ECR I-7601, LawLex200500004839JBJ; Case C-114/00 Spain v Commission [2002] ECR I-7657, LawLex200500004840JBJ.

Commission Decision No 98/693/EC of 1st July 1998, Aid for the purchase of commercial vehicles, LawLex200500004756JBJ; Case T-298/97 Alzetta and others v Commission [2000] ECR II-2319, LawLex200500005194JBJ.

Case 730/79 Philip Morris v Commission [1980] ECR 2671, LawLex200500004057JBJ; Case 62/87 Exécutif régional wallon v Commission [1988] ECR 1573, LawLex200500005401JBJ.

Case C-218/00 Cisal [2002] ECR I-691, LawLex200400003570JBJ.

Case C-667/13 Estado português, Judgment of 5 March 2015, LawLex201500000271JBJ.

Case 62/87 Exécutif régional wallon v Commission [1988] ECR 1573, LawLex200500005401JBJ.

Case T-52/12 Greece v Commission, Judgment of 16 July 2014, not available in English.

Case T-679/16 Athletic Club, Judgment of 26 February 2019, not available in English.

Case 142/87 Belgium v Commission [1990] ECR I-959, LawLex200500004634JBJ: in this case, due to the world-wide state of crisis, recession and increased competition in the sector in question, any advantage accorded to an operator therefore constitute an asset compared to its competitors, regardless of the relevant market; See also Case T-304/04 Italy v Commission [2006] ECR II-64.

Compare regarding restrictive practices for a prohibition from exporting to third countries which might affect trade between Member States where the amount of customs duties allows reimports to the EU: Commission Decision No 78/163/EEC of 20 December 1977, The Distillers Company Limited, Conditions of Sale and Price Terms, LawLex200400002397JBJ.

Case 102/87 France v Commission [1988] ECR 4067, LawLex200500004462JBJ; Case C-310/99 Italy v Commission [2002] ECR I-2289, LawLex200500004848JBJ.

Case C-71/04 Xunta de Galicia [2005] ECR I-7419, LawLex200600001233JBJ.

Case C-706/17 AB “Achema”, Judgment of 15 May 2019, LawLex201900000637JBJ.

European Competition Law

395. Concept

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

395. Concept

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise