Edited by Mel Marquis and Roberto Cisotta
This chapter briefly discusses the enforcement of State aid rules by national judges. The analysis first focuses on the main legal actions and remedies available to companies enforcing State aid rules as a ‘sword’, including damage claims against the issuance of unlawful aid. Then we examine the opposite scenario (in other words, State aid rules used as a ‘shield’), in particular the case of a beneficiary of allegedly unlawful aid challenging the validity of the national recovery order before national courts on the ground that the recovery order implements an invalid Commission decision finding the aid to be unlawful. The basic EU State aid rules are contained in Articles 107 through 109 of the Treaty on the Functioning of the European Union (‘TFEU’). Under Article 107(1) TFEU, a State measure is found to comprise elements of aid where the following four cumulative criteria are fulfilled: the measure is granted by the State or from State resources, and it is attributable to State action; the measure confers on the recipient an advantage (for example, a reduction in the tax base or in the amount of tax, a deferment or a cancellation) that it would not usually enjoy under normal market conditions; the measure is specific or selective (in other words, it favours a certain undertaking(s) or the production of certain goods); and the measure is capable of distorting competition and of affecting trade among Member States.
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