paper aims to assess the likelihood that State aid enforcement can be
revitalised in the post-crisis period as a result of the 2012-2014 State
aid modernisation process (SAM). The paper takes the view that State
aid enforcement was left in a difficult impasse as a result of the
extraordinary measures the Commission implemented during and immediately
after the 2008 economic breakdown, which left the Commission in a
difficult position due to the unavoidable concessions and lowering of
standards that dealing with the soaring volume of State aid required.
The paper builds on this premise to critically assess whether a scenario
of stronger enforcement can be foreseen under the modernised, post-2014
procedural framework of SAM. It pays particular attention to the need
for the European Commission to (re)engage in a more substantive
assessment of aid measures and to promote judicial (or private)
enforcement of State aid rules in an effective manner. It concludes that
revitalisation of State aid enforcement under SAM is highly unlikely.
I have attempted some statistical analysis to support my view that State aid enforcement is not being efficient. As a taster (full details in the paper), I argue that 'it seems conservative to estimate at around 100 billion Euros the amount of (non-investigated) illegally-granted State aid in the EU28 between 2008 and 2013' and that the Commission is accumulating a significant backlog of State aid cases (of around 500 in the same period), despite having expanded its State aid workforce by 53% between 2007 and 2011.
I also argue that the Commission's push for more transparency of the awards of State aid will not result in an actual involvement of private parties and society at large as stewards of EU State aid rules, in particular due to the restriction of the locus standi to submit (admissible) complaints to the Commission (following Sarc v Commission and the rules under the revised art 11a of reg 794/2004) and the compounded effect of the mandatory use of a standard form that requires significant information.
I will present a reworked version of this paper at the Antitrust Enforcement Symposium held by the Centre for Competition Law and Policy of the University of Oxford in June, where I am honoured to share a session on Competition and the State with such distinguished scholars and practitioners as Conor Quigley QC, Damien Geradin, James Cooper, David Szafram, Isabel Taylor, Angus Johnston and Ioannis Lianos. As you see, not the easiest audience. So all comments that can help me improve the paper are most welcome! I already thank my colleague Dr Paolo Vargiu for his first reactions.
The full citation for the paper is: A Sanchez Graells, "Digging Itself Out of the Hole? A Critical
Assessment of the European Commission's Attempt to Revitalise State Aid
Enforcement after the Crisis" (May 5, 2015) University of Leicester
School of Law Research Paper No. 15-15. Available at SSRN: http://ssrn.com/abstract=2602798.