Regulatory Measures Are not State aid & Trade Unions Are not “Interested Party”


This article reviews two recent judgments dealing with the concept of state resources and the meaning of “interested party”, respectively.

State resources

On 8 June 2023, the Court of Justice clarified, by its judgment in case C-50/21, Prestige and Limousine SL, that purely regulatory measures may confer and advantage without, however, granting State aid.1

The Court was responding to a request for a preliminary ruling by a Spanish court which was adjudicating a dispute between car-hire companies and the municipality of Barcelona. The municipal authorities had adopted a measure according to which already licensed car-hire companies were required to obtain another licence by the Barcelona authorities before they could legally provide services in the city. In addition, the number of licences for car-hire companies was limited to 1/30th of the number of licences for taxis operating in Barcelona. The municipal authorities claimed that the measure was necessary to reduce pollution and congestion in the city and to maintain the viability of normal taxi services.

The referring Spanish court asked whether the measure constituted State aid and whether it infringed Article 49 TFEU which guarantees the right of establishment.

With respect to the question concerning Article 107(1) TFEU, the Court of Justice replied by examining solely whether there was a transfer of state resources. First, it recalled that “(53) the concept of aid includes not only positive services such as subsidies, but also measures which, in various forms, alleviate the charges which are normally included in an undertaking’s

budget and which, therefore, are not subsidies in the strict sense of the term, are of the same nature and have identical effects”.

“(54) Consequently, for the purposes of establishing the existence of State aid, a sufficiently direct link must be established between, on the one hand, the advantage granted to the recipient and, on the other, a reduction in the State budget, or even a sufficiently concrete economic risk of charges on it”.

“(55) In the present case, suffice it to note that it is in no way apparent […] that the legislation at issue […] involves the commitment of State resources.”

“(56) In particular, first, neither the requirement of an authorisation […] [of] the activity of ride-hailing services in the Barcelona agglomeration nor the limitation of the number of licences for such services to one thirtieth of the taxi service licences issued for that agglomeration appear to imply positive services, such as subsidies, for the benefit of companies providing taxi services or alleviate the charges that normally burden the budget of these companies.”

“(57) Second, those two measures do not appear to lead to a reduction in the State budget or to a sufficiently concrete economic risk of charges on it, which could benefit undertakings providing taxi services.”

Therefore, the Court of Justice concluded that “(58) Article 107(1) TFEU does not preclude legislation applicable to an agglomeration providing, first, that a specific authorisation is required to carry out the activity of ride-hailing services in that agglomeration, in addition to the national authorisation required for the provision of urban and long-distance ride-hailing services, and, second, that the number of licences for such services is limited to one thirtieth of the licences for taxi services issued for that agglomeration, provided that those measures are not such as to involve a commitment of State resources within the meaning of that provision.”

However, the Court went on to find the measure in question incompatible with Article 49 TFEU because it provided protection to taxi companies and because it had only a random link with the objective of reducing pollution and congestion.

The findings of the Court would have been different if the licences were free but tradable or if the municipal authorities charged a fee at market rates for the issuing of the limited number of licences. In the former case, the Court would have probably found that the state lost potential revenue. In the latter case, the analysis would have been more complicated as the case law permits Member States not to charge market rates for permits or licences that are linked to regulatory measures which are applied on the basis of objective criteria.

Interested party

On 7 June 2023, the General Court delivered its judgment in case T-322/22, Unsa Énergie v European Commission.2 Unsa Énergie, a trade union representing employees of Électricité de France [EDF], sought the annulment of the decision of the Commission, which rejected its complaint against authorised France aid measures in the electricity sector. The union argued that the aid measures harmed its interests. The Commission rejected the complaint because it considered that Unsa Energie was not an interested party in the meaning of Article 1 of Regulation 2015/1589

The General Court, first, recalled that under Article 1(h) of Regulation 2015/1589, interested party means any Member State and any person, undertaking or association of undertakings whose interests might be affected by the grant of aid, in particular the beneficiary of the aid, competing undertakings and trade associations. It is, in other words, an indeterminate group of addressees. [paragraph 17 of the judgment]

However, an undertaking which is not in direct competition with the beneficiary of the aid may be classified as an ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589, provided that it claims that its interests may be affected by the grant of aid, which requires that undertaking to demonstrate, to the requisite legal standard, that the aid is likely to have a specific impact on its situation. Therefore, the status of ‘interested party’ does not necessarily presuppose a competitive relationship with the beneficiary of the aid. [para 18]

In other words, the General Court did not rule out that trade unions could be regarded as interested party if they could demonstrate that they would be affected by the aid in question and that the aid would have a concrete impact on them. [para 19]

Then the General Court examined the Commission decision which had found the union not to be an interested party on the grounds that it was not a competitor of the beneficiary of the aid. More importantly, the Commission considered that the alleged harm to the interests of the union had no direct or certain link with the aid measure. In particular, the reduction in the staff of EDF did not the result from the aid measure, but from an autonomous decision of EDF. [para 21]

The General Court also examined and rejected other arguments concerning alleged harm to EDF and its market position. The Court viewed those arguments speculative and not capable of proving the alleged harm caused by the French measures in question.

On the basis of the reasoning explained above, the General Court rejected the appeal of Unsa Énergie

Therefore, a person or organisation may object to the granting of State aid for ideological, moral, social or economic reasons, but it does not have standing to bring legal action against Commission decisions if it cannot demonstrate that the aid harms its interests.



Phedon Nicolaides

Dr. Nicolaides was educated in the United States, the Netherlands and the United Kingdom. He has a PhD in Economics and a PhD in Law. He is professor at the University of Maastricht and the University of Nicosia. He has published extensively on European integration, competition policy and State aid. He is also on the editorial boards of several journals. Dr. Nicolaides has organised seminars and workshops in many different Member States, and has acted as consultant to several public authorities.

Leave a Reply

Related Posts

24. Jan 2023
State Aid Uncovered by Phedon Nicolaides

State Resources Include all the Resources that Can be Directed by the State for its own Purposes

Introduction On 12 January 2023, the Court of Justice delivered its judgment in joined cases C-702/20, DOBELES HES and C-17/21, Sabiedrisko pakalpojumu regulēšanas komisija.[1] A Latvian court requested the Court of Justice to provide a preliminary ruling on the interpretation of Article 107(1) TFEU, Article 108(3) TFEU, Regulation 1407/2013 on de minimis aid and of the procedural Regulation 2015/1589. The […]
20. Dec 2022
by Phedon Nicolaides

Compensation for Damage

Introduction On 9 November 2022, the General Court followed its previous judgments in cases concerning compensation for damage caused by the covid-19 pandemic to rule, in case T-111/21, Ryanair v European Commission, that Member States were free to choose to whom to grant State aid.[1] Ryanair had sought the annulment of Commission decision SA.55373 concerning damage compensation to Croatia Airlines […]
18. Oct 2022
by Phedon Nicolaides

Public Authorities Acting as Private Investors

It is a well-established principle in the case law that when a public authority acts as a private investor, it must disregard all public policy objectives and its obligations as an arm of the state. Many judgments of EU courts and Commission decisions have examined in detail the various elements that underpin the reasoning of a private investor such as […]
06. Sep 2022
State Aid Uncovered by Phedon Nicolaides

Special Economic Zones

Member States must check that the State aid claimed by undertakings established in special economic zones concern activities that are actually carried out within those zones. Introduction Several Member States have special economic zones in which companies enjoy preferential tax treatment. These zones can be divided into two categories: those that can be found mostly in the new Member States […]
21. Jun 2022
State Aid Uncovered by Phedon Nicolaides

The Date on which State Aid is Deemed to be Granted Is not necessarily the Date on which the Actual Benefit Materialises

State aid is deemed to be granted even if the benefit cannot be quantified in advance and even if state resources are transferred at a future point in time. Introduction The precise date on which State aid is granted can be important such as, for example, when calculating the present value of aid granted in tranches at different points in […]
24. May 2022
State Aid Uncovered by Phedon Nicolaides

Another Case of Rescue Aid to an Airline

An undertaking does not have to be nationally “important” in order to qualify for rescue aid. Introduction The pandemic has been hard on airlines. For some of them, however, the pandemic simply exacerbated their already existing problems. On 18 May 2022, in case T‑577/20, Ryanair v European Commission, the General Court had to examine the case of State aid to […]
03. May 2022
State Aid Uncovered by Phedon Nicolaides

The Standard of Proof in State Aid Complaints and the “Informational Disadvantage” of Complainants

The Commission must use its investigative powers to seek clarification from Member States in order for it to establish whether a measure constitutes State aid, or is compatible aid, or is existing aid. Introduction Complaints are an important source of information to the Commission. The possibility afforded to undertakings to lodge such complaints with the Commission is intended to dissuade […]
26. Apr 2022
State Aid Uncovered by Phedon Nicolaides

Member States Must Recover of their Own Initiative Illegally Granted Aid

Aid granted illegal must be recovered by the granting authority without any need for a prior Commission decision ordering recovery. The amount of recovered aid may be limited to that which is in excess of what is allowed by the GBER. Introduction It is a well-established principle in the case law that a “prudent market operator” is responsible to check […]
19. Apr 2022
State Aid Uncovered by Phedon Nicolaides

Injection of Capital in a Postal Operator

The resources of a public undertaking necessarily count as “state resources”, regardless of the degree of autonomy of the public undertaking. However, not every decision of a public undertaking can necessarily be “imputed” to the state. A prudent investor may take into account authorised State aid. A prudent investor may tolerate short-term losses if it can realise sufficient profits in […]
12. Apr 2022
State Aid Uncovered by Phedon Nicolaides

A First Commission Decision on Natural Gas Storage

Compensation that guarantees a normal or fair rate of return eliminates risk that is inherent in market transactions and therefore confers an advantage in the meaning of Article 107(1) TFEU. Introduction On 23 March 2022, the European Commission announced plans to mitigate the spike in energy prices caused by the war in Ukraine. Chief among those plans were proposals for […]