The Role of Competitors in the Enforcement of State Aid Law

The Role of Competitors in the Enforcement of State Aid Law

by Fernando Pastor-Merchante

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Overview

The Role of Competitors in the Enforcement of State Aid Law by Fernando Pastor-Merchante

This book explores the tools that the European rules on State aid place in the hands of competitors when it comes to fighting subsidies and other state measures of financial assistance to firms. In order to do so, the book scrutinizes the means of redress available to competitors before national courts (private enforcement), as well as the opportunities that they have to make their voice heard in the course of the European Commission's enforcement procedures (public enforcement). The insights provided by the book will lead to a better understanding of the rights of private parties under the rules and practices that govern the enforcement of State aid law. Revised Dissertation. (Series: Hart Studies in Competition Law Vol. 16) [Subject: Competition Law]

Product Details

ISBN-13: 9781509906598
Publisher: Hart Publishing
Publication date: 04/20/2017
Series: Hart Studies in Competition Law
Pages: 232
Product dimensions: 6.20(w) x 9.30(h) x 0.70(d)

Table of Contents

Acknowledgements v

Table of Cases xi

Table of Legislation xix

Introduction 1

I Background 1

II Aim of the Book 2

III Literature Review 6

IV Structure of the Book 10

Part I

1 The Substantive Rules on State Aid 15

Introduction 15

I The Political Economy of Subsidies and Other Forms of State Aid 15

II The Political Economy of State Aid Control 17

1 The Institutional Rationale 17

2 The Internal Market Rationale 19

3 The Efficiency Rationale 20

4 Competitors and the Rationales of State Aid Control 21

III The Operation of the Rules on State Aid 22

1 Overview of the Rules on State Aid 22

2 The Definition of State Aid 23

3 The Administration of the Exemptions 28

4 Competitors and the Operation of the Rules on State Aid 32

Conclusion 33

2 The Institutional Design of the System of State Aid Control 34

Introduction 34

I The Involvement of Competitors in the Enforcement of State Aid Law 35

1 Harm to Competitors and State Aid Law 35

2 The Instrumental Rationale 36

3 The Legal Protection Rationale 41

4 The Instrumental and the Legal Protection Paradigms 43

II The Bilateral Design of the System of State Aid Control 45

1 Overview of the System of State Aid Control 45

2 The Bilateral Design of State Aid Procedures 46

3 The Elite Model of Accountability 48

4 The Subordination of Private to Public Enforcement 51

Conclusion 53

3 The Private Enforcement of State Aid Law 55

Introduction 55

I The Private Enforcement of EU Antitrust Law 55

II The Foundations for the Private Enforcement of State Aid Law 59

1 The Direct Effect of Article 108(3) TFEU 59

2 Remedies for Breach of the Standstill Clause 61

3 The Independence of National Courts 63

III The Role of the Commission in Fostering the Private Enforcement of State Aid Law 67

1 The Policy Preferences of the Commission 67

2 The De Minimis and Block Exemption Regulations 70

3 Advocacy and Transparency 72

IV The Limitations of the System of Private Enforcement of State Aid Law 74

1 The Underuse of Private Enforcement in the Field of State Aid Law 74

2 Obstacles to the Private Enforcement of State Aid Law 75

3 The Bifurcation Between Substantive and Procedural Regularity in State Aid 76

Conclusion 79

Part II

4 The Position of Complainants in State Aid Procedures 83

Introduction 83

I The Position of Complainants in EU Administrative Law 84

1 Administrative Authorities, Complaints and Enforcement Discretion 84

2 The Enforcement Discretion of the Commission Under EU Administrative Law 85

3 Limits: The Principle of Good Administration 88

II The Road to the Adoption of the Procedural Regulation 91

1 The Opening of the State Aid Procedure to Complainants 91

2 State Aid Complainants Before the European Courts 93

3 The Position of Complainants Under the Original Procedural Regulation 98

III The Status of Complainants in State Aid Procedures 102

1 The Athinaïki Techniki Case 102

2 The Reform of the Procedural Regulation 106

3 The Consolidation of Complainants Within State Aid Procedures 110

Conclusion 111

5 The Participation of Competitors in State Aid Procedures 113

Introduction 113

I Participation in EU Administrative Procedures 114

1 The Fundamental Right to a Hearing in EU Administrative Law 114

2 The Consultation Rights of Third Parties in ELT Administrative Law 117

3 Participation in State Aid Procedures 120

II The Participation of Competitors in State Aid Procedures 122

1 The Notion of 'the Parties Concerned' Under Article 108(2) TFEU 123

2 The Asymmetrical Design of the Consultation Phase of Article 108(2) TFEU 123

3 Minimising the Asymmetry: The Cook/Matra Case Law 125

III The Content of the Right to Participate in State Aid Procedures 128

1 The Right to Submit Comments 129

2 The Right To Be Informed of the Procedure 131

3 Access to the File and Access to Documents 134

Conclusion 137

6 Judicial Review of State Aid Decisions 138

Introduction 138

I The Position of Individuals in Judicial Review of EU Administrative Action 139

1 General Rules on Access of Individuals to the European Courts 139

2 The Objective Condition as Applied in Judicial Review of State Aid Decisions 140

3 The Subjective Requirement as Applied to Judicial Review of State Aid Decisions 142

II Judicial Review of 'Phase 1 Decisions' 148

1 The Refinement of the Cook/Matra Rule of Standing 148

2 Judicial Review of Phase 1 Decisions in the First Scenario 151

3 Judicial Review of Phase 1 Decisions in the Second Scenario 155

III Judicial Re-view of 'Phase 2 Decisions' 159

1 The Refinement of the Cofaz Rule of Standing 159

2 Type of Judicial Review Exercised Over Phase 2 Decisions 167

3 Competitors, Participation and Judicial Review 171

Conclusion 176

Conclusion 178

Bibliography 185

Index 197

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