Public Authority or Economic Activity in the Context of Public Infrastructures: An Assessment of the European Commission’s Policy After Leipzig-Halle

TY - GEN

T1 - Public Authority or Economic Activity in the Context of Public Infrastructures

T2 - State Aid Control: Where Law and Economics Meet

AU - Nielsen, Rasmus Grønved

AU - Holdgaard, Rass

AU - Ølykke, Grith Skovgaard

PY - 2019/10

Y1 - 2019/10

N2 - The introduction of a more economic approach in State aid control should be viewed as a healthy development. However, before subjecting public spending to the constraints of thorough economic analysis it is necessary to ask whether State aid control is requisite and meaningful at all. A corner stone of this assessment is to determine the dividing line between exercise of public authority and economic activities. In this paper, we raise concerns about the Commission’s recent approach to distinguishing between exercise of public authority and economic activity in the context of general transport infrastructure. The Commission’s approach and notably its new focus on the concept of ‘commercial exploitation’ may overstretch existing case law and thus the notion of aid. It is concluded that the Commission should return to a more nuanced and specific assessment of each activity when it draws this important line.

AB - The introduction of a more economic approach in State aid control should be viewed as a healthy development. However, before subjecting public spending to the constraints of thorough economic analysis it is necessary to ask whether State aid control is requisite and meaningful at all. A corner stone of this assessment is to determine the dividing line between exercise of public authority and economic activities. In this paper, we raise concerns about the Commission’s recent approach to distinguishing between exercise of public authority and economic activity in the context of general transport infrastructure. The Commission’s approach and notably its new focus on the concept of ‘commercial exploitation’ may overstretch existing case law and thus the notion of aid. It is concluded that the Commission should return to a more nuanced and specific assessment of each activity when it draws this important line.

KW - Faculty of Law

KW - State aid

KW - Concept of undertaking

KW - Public authority

KW - Economic activity

KW - General infrastructure

U2 - https://doi.org/10.21552/estal/2019/3/7

DO - https://doi.org/10.21552/estal/2019/3/7

M3 - Conference article

SN - 1619-5272

VL - 18

SP - 274

EP - 292

JO - European State Aid Law Quarterly

JF - European State Aid Law Quarterly

IS - 3

M1 - 7

Y2 - 5 October 2018 through 5 October 2018

ER -