The notion of selective advantage in EU State aid law – an equality of opportunity approach

Schonberg, Morris (2022) The notion of selective advantage in EU State aid law – an equality of opportunity approach. PhD thesis, London School of Economics and Political Science.

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Abstract

EU State aid control has developed in recent decades to become one of the most pre-eminent areas of EU competition law and policy and it now plays a fundamental role in the economic and regulatory landscape. Its growing profile has not, however, been matched by correspondingly high standards of clarity in relation to the definition of "State aid", and in particular, the requirement that a State measure must "favour certain undertakings or the production of certain goods" to be classified as State aid, i.e. the criterion of "selective advantage". The application of this criterion has been described as "a difficult exercise with an uncertain outcome" and is plagued by apparent analytical confusion with respect to fundamental issues, including the respective roles of objectives and effects in the assessment, and the development of seemingly very disparate classification methodologies by the EU Courts that depend on the type and form of the measure at issue. This thesis aims to improve upon the position. Rather than accepting distinctions based on pragmatism, the thesis seeks to develop a more conceptual and ultimately principled account of the case-law of the EU Courts in relation to selective advantage, based on the principle of "equality of opportunity". This approach is grounded in the imperative of safeguarding fair competition, both in terms of micro-economic and macro-economic rivalry, and therefore ultimately, equality of opportunity between undertakings and sectors. The thesis then explores how the methodologies employed by the EU Courts represent proxies and heuristics designed to give effect to these principles. The results should lead to greater understanding of the jurisprudence and the ability to better anticipate how the EU Courts will approach the assessment going forward, leading to greater predictability in relation to the notion of selective advantage that befits the growing significance of EU State aid control.

Item Type:	Thesis (PhD)
Additional Information:	© 2022 Pablo Ibanez Colomo
Library of Congress subject classification:	K Law > K Law (General)
Sets:	Departments > Law
Supervisor:	Ibanez Colomo, Pablo
URI:	http://etheses.lse.ac.uk/id/eprint/4661

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