Modernisation and supermodernisation of the state aid law – silent deepening of European integration?

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

In general, the Member States have always had a bad understanding about the importance of the prohibition of the state aid, pursuant Article 107, TFEU, in fact, in 1966 and in 1987, the Member States rejected the proposal of the Commission to assume a legal definition of aid.

Truly, in the past – not so distant – Member States escaped the application of the prohibition of the state aid in a simple way: they didn’t notify the European Commission about the aid that they had conceded to their companies.

The importance of the state aid prohibition started to become clear to the Member States when they noticed this article plays an important role on improving the growth of the internal market. And the main reason this prohibition was learned by the Member States was due to its control for a non-differentiated growth of the Member States and distortion of competition. Besides that, it ended an obscure and dubious policy practice of the destination of public funds to the eyes of the citizens… until, shall we say, the beginning of the crisis in 2008.
Continue reading “Modernisation and supermodernisation of the state aid law – silent deepening of European integration?”

Between the competition law and a competition culture: the case of Apple/Ireland

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

The importance of Apple’s case emerged when the journalist of the Irish Times asked the European Commission representative, Margrethe Vestager, in the press conference about the illegality of the aid provided by Ireland to Apple Sales International, if the Union wouldn’t be afraid of losing the investment of external companies with such sanctions. The answer given, without lyricism, made clear that the lesson wasn’t well-examined, after all, she simply answered “this is not a penalty, this is unpaid taxes”. The state aid prohibition read in the 107º TFEU conforms one of the most important competition laws, given that this mechanism contradicts the previous protectionist rules, inherent to the state individualism, in which the national independence was established through favouring State domestic economy to the detriment of other economies. Therefore, this response was surgical: urges the time for the Member States to finally consider the internal market as a single market, defined by the fair competition and this will be the main catch for future investment. Above all, the competition law demands an important shift of thought by the Member States – today we are not one.

The case Apple/Ireland raises several questions. Primarily, it takes into account the mould of the State aid, due to the fact that this is not a direct measure of tax exemption, fiscal guarantee, preferential  tax interest , favourable deals in the land acquisition, special rates, as in most cases, the Irish measure translates in a broad sense, in a advantage (expression used in the Case Italy versus European Commission 2nd of July of 1974, Process 173/73) that benefits the economic operator. The illegal aid converts into splitting of profit between Apple Sales International and Apple Operations Europe which the result implies that the Irish branch office would be subjected to the normal taxation of Irish companies, however, the head office where most of the profit was allocated, was not subjected to any kind of taxation and this was possible under the Irish tax law, which until 2013 allowed for so called ‘Stateless Companies’.

Continue reading “Between the competition law and a competition culture: the case of Apple/Ireland”

Sanctions to the anti-trust behaviour: the rethinking

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.

In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.

Continue reading “Sanctions to the anti-trust behaviour: the rethinking”

Editorial of May 2016

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by Pedro Madeira Froufe, Editor
and Joana Covelo de Abreu, Junior Editor

Competition, Public Procurement and Citizenship

Last 18th April 2016, the transposition deadline for new public procurement Directives passed: Directives 2014/23/EU, 2014/24/EU and 2014/25/EU. The first one deals with the award of the concession contracts and the latter have to do, respectively, with public procurement (and repealing Directive 2004/18/CE) and procurement by entities operating in the water, energy, transport and postal services sectors (repealing, for that matter, Directive 2004/17/CE).

Public procurement has a fundamental role in the European Union, namely in the EUROPE 2020 Strategy context, since it appears as an internal market instrument that is adequate to promote a sustainable development, an intelligent and inclusive growth, aiming, equally, a more reasonable use of public funding. Besides, public procurement regulation, in the European context, always prosecutes competition’s preservation and reinforcement – the background where internal market edification was set.

With those new Directives, there were some aspects of the previous regime that were revised, namely the European thresholds (which define the scope of application of European rules on public procurement). Those were supposed to be updated every two years if necessary. Still, a new proceeding was created: the innovation partnership established between the contracting entity and the participants, which allows setting successive stages and intermediate objectives. E-procurement gains a more relevant role.

According to information provided by European Institutions, public procurement contracts have a significant weight in Member-States economies, representing about 16% of the Union’s GDP. But before public procurement had been regulated by the European Union, only 2% of economic operators that had won public contracts were non-national companies. In this perspective, application of Internal Market rules (namely freedom to provide services and free competition) allowed a better usage of public resources and a better and more fruitful competition, demanding economic operators in the European context to improve their services and to provide them to a lower price (to a more competitive price). With public procurement Europeanization there was also a reinforcement of transparency and equality principles’ respect and a diminishing of fraud and corruption’s risk.

As stated, competition policy always ends up to be in the base (even when indirectly) of the functioning dynamic’s type that we aim to the Internal Market and to the economic integration. Besides, to a large degree, the creation of a competition culture in Europe is the result of integration. Actual challenges are connected, in a great extent, by the balanced markets’ regulation, by the implementation of an economy that is always competitive but also socially aware. New technologies set today new realities not always easy to ordain, safeguarding, in a balanced way, economic efficiency (more competition) and what we can call, in a detailed way, common interest manifestation (and, therefore, of a socially balanced regulation). In the “common economy” field, difficulties of that balance are particularly evident and immediate. Let’s consider an illustrative example: the tension between a (very closely) regulated sector of providing services – taxi services – and the emergence, also in Europe and with great success, of the UBER phenomenon. This is something to follow with interest. It is also a challenge to the densification of European citizenship (economic, directly connected to European consumers).

Picture credits: Numbers and Finance  by Reynermedia.

Passing-on of Overcharges: Will the National Courts Lead the Way Forward?

by Vírgilo Mouta Pereira, Jurist and Collaborating Member of CEDU

This article starts by presenting a description of the passing-on regime enshrined in the Damages Directive. It argues that national judges need an effective toolkit to successfully deal with issues relevant to passing-on, thereby contributing to the ultimate goal of the Damages Directive: to help citizens and undertakings to be compensated if they are victims of infringements of the EU Antitrust rules. Against this background, in the years to come, the courts of the EU Member States are expected to play a crucial role.

I – Introduction

The Directive 2014/104/EU on antitrust damages[1] (hereinafter referred to as “Damages Directive”) seeks to help citizens and undertakings to claim compensation it they are victims of a breach of the EU Antitrust rules. Infringements cause concrete harm and the Directive sets out rules to ensure that anyone who has suffered harm caused by a breach of Articles 101 or 102 TFUE can effectively exercise the right to claim full compensation for that harm[2].

Antitrust law infringements causing an overcharge, i.e. a price increase, can harm not only the direct purchasers of the affected goods or services, but also those who afterwards purchased those goods or services. Quantifying the extent to which an overcharge has been passed on is part of a broader framework: the quantification of harm in competition law. Continue reading “Passing-on of Overcharges: Will the National Courts Lead the Way Forward?”