Chapter 9 - The Influence of EU State Aid Law on the Allocation of Limited Rights by National Authorities

Summary

Introduction

When allocating and granting limited rights, national authorities within the EU Member States should be aware of the possible influence of EU State aid law. The same applies to the national legislatures, when creating the underlying schemes for such limited rights. In fields in which regulation at EU level exists, e.g. in the field of CO₂ emissions, the role of EU State aid law may be mentioned explicitly and clarified in the applicable EU legislation or guidelines. However, also by lack of such explicit reference in secondary EU regulation or soft law documents, the EU State aid rules, as laid down in the Treaty on the Functioning of the European Union (hereinafter: TFEU), may be applicable when dealing with limited authorisations or claims within the scope of this book, for example in the field of the allocation of limited gambling licences. According to consistent case law of the European Court of Justice the concept of State aid embraces all measures ‘which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (…).’ Although the concept of State aid is interpreted and applied broadly, little literature exists on the application of EU State aid rules to the allocation of limited rights by administrative authorities.

The aim of this chapter, therefore, is twofold. First, to explore to what extent the EU State aid law requirements could influence the allocation of limited rights by national authorities or the legislature (hereinafter generally referred to as: the allocation of limited rights). The second aim of this chapter is to contribute to the central question of this book. Based on the explorative analysis of the role of EU State aid law with regard to the allocation of limited rights, an answer is sought to the question what could be learned from EU State aid law with a view to the development of a consistent and general legal theory of the allocation of limited rights by national authorities. To do so, Section 2 first deals with the conditions which should be met in order to qualify a specific measure as State aid in the sense of the TFEU.