Schütte, Michael --- "Procedural Aspects of EU State Aid Law and Practice" [2011] ELECD 711; 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 15

Section Title: Procedural Aspects of EU State Aid Law and Practice

Author(s): Schütte, Michael

Number of pages: 18

Extract:

15 Procedural aspects of EU State aid law
and practice
Michael Schütte


I. INTRODUCTION

According to Article 108 TFEU, any State aid measure must be noti-
fied beforehand to the European Commission, giving it the possibility to
assess the measure under EU State aid rules. Member States are under an
obligation not to implement the aid measure before the Commission has
taken its position and either declared the measure compatible with the
internal market under Article 107 TFEU, has not raised any objections or
considers that the measure does not constitute aid.
These basic rules, as simple as they may sound in principle, provide
many pitfalls in practice. One of the main difficulties stems from the fact
that Article 108 TFEU ­ and the Procedural Regulation that has been
adopted to make the process more transparent and predictable1 ­ only
apply to measures that constitute a State aid within the meaning of Article
107(1) TFEU. If a measure is not a State aid, then no notification to the
European Commission is necessary, and the Member State is free to imple-
ment the measure without waiting for any reaction from the Commission.
A measure that does constitute a State aid, and that has been implemented
without prior notification to the European Commission, is considered an
unlawful aid, even if it may be declared compatible with the internal market
under Article 107 TFEU. The distinction between unlawful or illegal aid ­
aid that has not been duly notified ­ and incompatible aid ­ aid that ...