Bartosch, Andreas --- "The Concept of Selectivity?" [2011] ELECD 704; in Szyszczak, Erika (ed), "Research Handbook on European State Aid Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on European State Aid Law

Editor(s): Szyszczak, Erika

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802741

Section: Chapter 8

Section Title: The Concept of Selectivity?

Author(s): Bartosch, Andreas

Number of pages: 17

Extract:

8 The concept of selectivity?
Andreas Bartosch


Like a human being the concept of selectivity has two legs. One is its
geographical dimension, the other its material one. Whilst the former has
been clarified to a large extent by the EU Courts in the more recent past,
the latter still remains a highly controversial subject as is evidenced by the
numerous publications that have been dedicated to it.1
One of the conditions of the prohibition on the granting of State aid laid
down in Article 107 TFEU is `the favouring of certain undertakings or the
production of certain goods' which is commonly referred to as the notion
of selectivity. This concept of selectivity consists of two components,
the first component being a geographical one, meaning in essence that a
measure is selective if undertakings in a specific part of the entire territory
of a Member State are treated differently, that is, more favourably than
in the rest of this territory, and, the second component, a material one
looking at all other forms of unequal treatment of undertakings by the
intervention of a Member State.
This chapter covers both notions of selectivity, but places greater
emphasis on the much more controversial concept of material selectivity.
As will be explored in some detail on the basis of the pertinent jurispru-
dence of the EU Courts, I assert that the same rules apply when it comes to
selectivity, whether material or geographical, inside and outside the area
of fiscal measures.


I. GEOGRAPHICAL ...