EU State Aid Law
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EU State Aid Law

Emerging Trends at the National and EU Level

Edited by Pier L. Parcu, Giorgio Monti and Marco Botta

The recent State Aid Modernization has decentralized the enforcement of State aid law. In particular, under the General Block Exemption Regulation a number of aid schemes do not require the preventive “check” by the European Commission, while national courts play a growing role in private enforcement of State aid law. This insightful book analyzes the enforcement of State aid law in the aftermath of the State Aid Modernization, identifying a number of emerging trends at the national and EU level.
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Chapter 7: New trends in State aid enforcement by national courts: damages claims and the State aid cooperation tools

Simone Donzelli and Bernadette Willemot-Nieuwenhuys

Abstract

Competitors can suffer damage due to the national authorities’ granting of unlawful and incompatible aid. In such cases, they can start a claim for damages against the granting authority before national courts. The previous studies on that subject, made for the European Commission in 2006 and 2009, showed that this possibility was rarely relied upon in the Member States. The first section of this chapter will examine, on the basis of a very recent case from a French court, the possibilities for third parties to introduce a claim for damages against the aid grantor to compensate the damages suffered as a consequence of the breach of the notification obligation. This possibility requires three elements: the fault (that is, the breach of the standstill obligation by the Member State), the serious breach and a direct causal link between the breach and the damage. This chapter analyses the general EU case law in that field and highlights some recent examples in national law. The second part of the chapter is focused on the forms of cooperation between the Commission and national courts in State aid proceedings. The 2015 Procedural Regulation codified the tools available for national courts to request information and opinions from the European Commission. In addition, it introduced the possibility for the Commission to submit amicus curiae observations to national courts, mirroring the set of cooperation tools already available for antitrust matters. This section presents the scope of the cooperation tools and their procedural aspects, and analyses their use and trends. Finally, it discusses their current and potential role from the wider standpoint of State Aid Modernisation.

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