July 05
2020
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EU State Aid Law. Emerging Trends at the National and EU level

Pier Luigi Parcu, Giorgio Monti, Marco Botta (Eds.)

review by

Anna Nowak-Salles

EU State Aid Law consists of nine contributions and provides an analysis of State aid law and enforcement that was hitherto missing in the existing literature on State aid. The contributions of several academics and professionals aim to pinpoint the evolution of the ambitions, objectives and tools in this area of law throughout recent years, as well as to identify new challenges that emerge together with these trends.

The book puts a lot of emphasis on the transition from negative to positive integration that EU State aid law aimed at, or in other words, on the development of an EU industrial policy in State aid. Indeed, while the wording of the Treaty has remained practically unchanged since the 1960s, the goals of State aid policy have shifted, the number of notifications has decreased with the 2012 State Aid Modernisation, and national courts have been able to support the Commission in the enforcement of State aid rules. The contributions selected for the book touch upon various aspects of State aid law, from the notion of aid, to enforcement by national authorities and courts.

More specifically, the traditional view that the Court of Justice has consistently broadened the definition of aid is challenged by Massimo Merola and Filippo Caliento: this notion has been stretched but sometimes it has also been narrowed by the EU Courts. The difficulties in building coherent interpretative guidance are related to the fact that State aid is deployed as a governance tool with a view to creating positive integration. Alberto Heimler criticises the lack of an effects-based approach at the definition stage of the aid. With regard to the General Block Exemption Regulation, he argues that individual assessment of certain State aid measures, especially regional aid, would be more effective than a general exemption. The contribution of Ginevra Bruzzone and Marco Boccaccio analyses some landmark cases concerning qualification of aid for infrastructure as services of general economic interest, and tracks down the evolution of the Court’s and the Commission’s approach. Finally, Pier Luigi Parcu and Maria Alessandra Rossi review the evolution of State aid enforcement in the broadband sector and its application in Member States, observing that public investments may affect private operators’ expectations and decrease, or at least delay, private investment in this sector.

As far as national enforcement is concerned, Fernando Pastor-Merchante and Giorgio Monti discuss the role played by national courts in private enforcement of State aid law. Although remedies have not been harmonised at the EU level, State aid law tightly constrains the strategy that national courts should adopt when assessing State aid claims. According to Simone Donzelli and Bernadette Willemot-Nieuwenhuys, who review damages claims and State aid cooperation tools, the potential of the latter has not been fully exploited, and damages actions would benefit from further cooperation. Adam Scott looks into the Achmea and Micula cases to check how the possible conflicts between bilateral investment treaties and EU law are dealt with by the CJEU.

The development of private enforcement has opened the door to possible conflicts between the Commission and national courts, inasmuch as the application of the definition of aid is a ‘shared competence’. The contributions of Josef Weinzierl and Juan Jorge Piernas López demonstrate divergent approaches: while German courts are reluctant to accept the binding character of the Commission’s preliminary assessment and to refer legal issues to the CJEU for a preliminary ruling, Spanish courts adapt their law for a more effective recovery.

The publication is oriented towards identification of trends that have emerged during recent years, without going into the details of individual cases unless they serve the overarching purpose of the book. By this focus on evolution of State aid law, the contributions distinguish themselves from article journals, which are limited rather to singular issues, and help the reader to better understand and more consciously observe EU State aid policy. Even those who deal with State aid as part of their daily routine will have the feeling that EU State Aid Law provides a useful and enriching overview of changes of State aid policy. At the same time, the book avoids overly abstract digressions, thanks to which it may be a reference not only for academics, but may very successfully also be useful for professionals as well as for EU law-makers, which would be particularly beneficial.

 

Anna Nowak-Salles is a PhD Researcher at the European University Institute. Her recent publications include: The Optimal Assessment Rule for EU State Aid Assessment’ 43(1) World Competition, 2020, and ‘Individual Concern in the State Aid Action for Annulment in Light of the Notion of State Aid,’ 15(2-3) European Competition Journal, 2019.

 

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