Criteria for Qualifying State Aid Under Article 101 §1 TFEU: A Comprehensive Analysis Guide

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[...] The ruling Stardust CJCE 2002 posed cumulative conditions. - The measure must result from behavior attributable to the State. - It must be granted through state resources. The Court preferred to have a restrictive view so as not to find that each intervention of the State, qualified as state aid NOTWITHSTANDING expansion to include aid delivered by sub-state entities: - State aid qualified when it is the legislative power that organizes it - Being qualified details when it is a territorial community that grants with the resources of the State - Problems of independent bodies - If the body was created for this purpose, then it is subject to the regime of state aid - If the body acts under the influence and state, CJCE 1969 regarding a benefit granted by the Bank of France on behalf of the government Then Cour uses the criterion of imputability allowing to broaden the notion by including the aid delivered by bodies acting under the influence of the State - One looks at: - Statutory elements of the organisation + - their degree of autonomy Test of the private investor in a market economy =born in 1980 means that the State, if it acts in a similar way to a private individual or private investor, then there is a presumption of the non-existence of a state aid - Critique : quite contradictory to the entire JP CJCE as it has always defined the notion according to its effects and not according to the objectives pursued by the E. [...]

[...] derogation allows the State to provide aid to these public companies that manage SPs TPICE French Federation of Insurance Companies regarding cross-subsidy The court considered that the tax aid constituted a state aid but that it was part of the derogations of Article 106§2 TFUE as it only aimed to compensate for the additional costs caused by its IG mission CJCE Altmark 2004 = necessary condition so that a compensation is not considered as state aid ? = 4 cumulative conditions 1st beneficiary enterprise of the financing must be charged with a clear SP mission defined 2° The compensation paid by the E must not exceed the strict necessary to cover the cost of the SP mission 3° The parameters for calculating the compensation must have been established in advance in an objective and transparent manner 4° If the choice of the enterprise in charge of a SIEG was not made as a result of a MP procedure, the cost level must be determined in accordance with the rules If 4 conditions are met then no state aid in the sense of the Court and exempt from notification to the Commission ? [...]

[...] Hence, the necessity for the national judge to be able to rule on the qualification of State aid. There are 4 conditions: State intervention or through State resources to obtain an abnormal advantage to affect trade between Member States beneficiary has the quality of an undertaking Therefore, in what way has the Court intervened to clarify the criteria for the qualification of State aid in the sense of Article 107§1 of the TFUE I. The first two conditions: difficulties involving a precision of the jurisprudence A. [...]

[...] aids Difficulty : distinguish individualized state aid and general aids CJCE 26 September 1996, Kimberly Clark: extensive assessment of the notion ? it was a commitment to reduce the number of layoffs of a company in exchange for a financial commitment of the State by a convention of the FNE ? The commission challenges this, it qualifies as state aid, supported by the Court which judges that a regulation applicable to the entire economy becomes a regime of aid if it gives rise to discretionary application by the public authorities. [...]

[...] However, a service offered or non-reimbursed at its fair value can be qualified as state aid. The economic advantage is very broad since it can be about positive services or negative actions. Therefore, the provision of goods or services at preferential conditions and to constitute a State aid is considered as such. - The provision of a subsidiary, acting on a competitive market - The provision of logistical and commercial assistance (example of the case, Chronopost of 2003) Qualification of financial compensations granted by public authorities to companies managing a SP CAR derogation from the incompatibility of state aid with public market ? [...]