Effects on Trade and EU State Aid Law: Reality or Chimera?

The contribution addresses a quite neglected element of the notion of State Aid, namely the effect on trade between Member States. It shows how this element operates in reality by having a look at some recent cases, including especially pending requests for preliminary rulings. The thesis developed here is that the effects on trade criterion - which should operate as a jurisdictional diaphragm delimiting the scope of application of the Treaty’s provisions ‘designed to regulate competition’, including State Aid rules - is in fact applied in such a way that makes it almost impossible to for it to operate ex ante, i.e. without a prior decision of the Commission excluding the application of art. 107 TFEU in a given case. While since the so called Modernization the Commission is trying to adjust its practice in this field, and signals some criteria that should let it go “big on big things and small on small things”, the "guidance" one can infer from some Commission's cases is to a certain extent made irrelevant by the very way in which that criterion is developed in the 2016 Notice, based on the statements of principle adopted by the Court of Justice in the Eventech case. An analysis of recent practice shows, in my view, that the effect on trade criterion is essentially operating as a presumption. As a consequence, the effect on trade criterion fades away, especially in the practice of national judicial and administrative authorities, contributing to a radical transformation of EU State Aid law, and of the balance of power between national authorities and the EU executive in many fields. An automatic application of case law formulae, totally segregated from any appraisal of their significance in relation with the relevant facts of the case(s) where they were originally affirmed, has somehow become the working day normalcy of national jurisdictions applying art. 107 TFEU. Such an approach risks, on one side, essentially transforming State Aid control at the national level into a generalized application of a hard-line equal treatment clause, if not a tool to pursue given socio-economic agenda. On the other side, it involves a passive acceptance of the stretching the European Commission’s competence well inside the realm of socio-political choices that should be left to Member States’ democratically accountable institution