by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho
If we know the economic policy behind the article 107.º and 108.º of TFEU we will know better ourselves as European Union. Here, the sovereinty have a modern aproach because it deals with a new reallity, witch is the heart of EU: the idea of a single, free and fair market throught the Member States. That necessarilly increases a deep discussion about the institutional and Member State’s power to take attractive measures to grow up their own economy throught tax benefits, such as the case in analysis.
But, in fact, the Member States are now new states because they are regulated by common politics emerged by a supra national organ, which did not exist: the EU itself. When we say “new States” we are not calling for a conceptual reform in the international law as the elements of the 1st article of Montevideo’s Convention remain. It must be noted that the requirement of an effective Government does not take into account the way/fashion in which state policy is implemented but, symbolically, it is important to point out that there is a new set of rules that inevitably transform the path of State economic policy in the Member States of the EU.
In this way, if every competition rule in the TFEU as well as the economic freedoms ones are important to the new economic formula, the prohibition of State aid under Article 107 and 108 has an added symbolic force: it is addressed directly to the Member States, imposing a stand still position before their peers.
The fact that Ireland is alleging a breach of sovereignty by the Commission, in the appeal of the Apple case, could shed some interesting light on the debate: if, on one hand, the prohibition of State aid has the nature of public order and binds the Member States in their interaction with economic agents; on the other hand the fact is that the Commission has a duty to safeguard the Treaties but its power is limited to an administrative/executive power, never legislative or judicial.
The European economic interest is increasingly a public interest. We believe that it will be the key for the Court’s decision, having an unfavorable timing: Ireland negotiates its situation in the EU in a post Brexit momentum.