State Aid Law

Duration

30h Th

Number of credits

Lecturer

Jacques Derenne

Language(s) of instruction

French language

Organisation and examination

Teaching in the first semester, review in January

Schedule

Schedule online

Units courses prerequisite and corequisite

Prerequisite or corequisite units are presented within each program

Learning unit contents

The purpose of the course is to study in depth the control of State aid under EU competition law (Articles 107 and 108 of the Treaty on the Functioning of the European Union - "TFEU"). The course consists of five parts. It is enhanced by the private practice as a State aid lawyer of the professor for more than three decades.

The first part is designed to place the State aid rules into the context of the TFEU system and to examine the State aid reforms carried out by the European Commission ("Commission") in 2005-2009 and 2012-2014, the "fitness check" in progress as well as the "export" of State aid rules outside the EU and the regulation on foreign subsidies distorting the internal market (regulation 2022/2560, applicable since 12 July 2023 for investigations and since 12 October 2023 for notifications).

The second part examines the concept of State aid and sets out its various cumulative conditions (Article 107(1) TFEU), examined on the basis of EU case law: advantage (concept of normal market conditions and market economy operator, compensation for "public service" charges), selectivity, transfer of State resources/attributable to the State, risk of distortion of competition and potential effect on trade between Member States).

The third part is devoted to the procedural rules to be followed by the Commission in the exercise of its exclusive competence: monitoring the compatibility of aid with the internal market. Article 108 TFEU governs the procedure for the application of Article 107(3) TFEU (exemptions that the Commission may grant from the prohibition in principle of State aid). This part will examine the concepts of new, existing, unlawful and incompatible aid, the ex-ante control by the Commission and its powers and obligations.

The fourth part will return to the substantive rules which apply to control of compatibility by the Commission: sources of substantive law and developments, general block exemption regulation, de minimis regulation, sectoral or horizontal rules (research, development and innovation, rescue and restructuring aid, environmental protection, energy, airports and aviation, taxation, guarantees, regional aid). A few sectors will be studied in particular. Special attention will be paid to the financial and economic crisis and the evolution of the Commission's approach since October 2008. Finally, the Covid-19 crisis will be specifically studied (implementation of Temporary Framework until 30 June 2022 together with an overview of the significant Commission's decisional practice since March 2020 and of "Covid-19 cases" before the General Court and the Court of Justice) as well as the Temporary Crisis and Transition  Framework for State aid measures to support Ukraine.

Finally, the fifth part is the keystone of the course, based on all the above: the intervention of national courts by virtue of the direct effect of Article 108(3), last sentence, TFEU, since 1964. This will involve the examination of the review by the national judge and the articulation of the respective roles of the Commission and the national judge. This important part of the course will in particular provide an opportunity to study several cases illustrating the role of the national judge and to discuss the studies on the application of State aid at national level (the 2006 study co-directed by Jacques Derenne and updated in 2009 for the Commission and the last 2019 study) having led to interpretative communications of the Commission on this subject in 2007, 2009, 2019 and 2021. 

The main thread of the course will be the EU case law, with numerous illustrations of national court decisions as well as the Commission's decisional practice. The course includes a part on competition policy in the field of State aid and every effort will be made to accomodate a member of the Legal Service (State aid team) or of the Directorate General for Competition (DG COMP) of the Commission for one or two hours who will present a topical subject from the Commission's point of view (or to pay the Commission a visit in Brussels - Legal Service).

 

 

Learning outcomes of the learning unit

Learning outcomes: at the end of the course, the student will be able to identify in a national regulation or a State measure the existence of State aid within the meaning of competition law. He/she will then be able to advise a State, an administration or a client, a company or a professional federation, for example, on what action to take as a result (notification, complaint, referral to a judge or, on the contrary, to the European Commission, arguments to be developed, advice to be given to the company, action to be taken by the administration, etc.).

The course will provide the student with theoretical knowledge of the subject, a capacity to determine attitudes (taking responsibility and autonomy, and know-how (cognitive skills based on logical, intuitive and creative thinking) and practices (based on the use of research and analysis methods and instruments) in order to be able to advise and act in all circumstances on State aid issues.

The course also includes a study of practice based on multiple examples of case law and the exam consists of a real-life situation of the student who plays the role of either a legal adviser, a judge, or a Commission or Member State official who has to take an attitude towards a specific State aid issue.

Prerequisite knowledge and skills

Law degree, preferably with knowledge of European institutional law. No prior knowledge of European competition law (a course in competition law applicable to undertakings during the course leading to this diploma is not necessary but would be useful). 

Planned learning activities and teaching methods

Ex-cathedra presentation of the subject-matter but based on case law, prepared if possible most of the time in advance by the students. In this way, the presentation will tend to be particularly interactive.

Team work on projects and compulsory readings will also be part of the teaching method.

The course does not include a syllabus, but a course outline, a documentation file (legislation and bibliography) and numerous slides (several hundreds) which often reflect the latest news (an important judgment or decision made a few days before the course, for example) as well as excerpts of case-law on the notion of State aid.

Mode of delivery (face to face, distance learning, hybrid learning)

Face-to-face course


Additional information:

Face-to-face courses in compliance with the latest requirements of the Covid-19 crisis.

Online course in case of continued pandemic and in application of decisions of federal, community and academic authorities.

Course materials and recommended or required readings

The documentation package will include a list of recommended readings and all applicable texts. No course notes but slides will be made available as the course progresses (on the exchange platform of the teaching unit).

Oral exam with 30 minutes of open book preparation (without slides and lecture notes). Real-life situation using all the notions learned during the course. Open questions reflecting real situations in which a lawyer, civil servant, legal adviser or judge may be faced with a State aid issue.

Work placement(s)

A dissertation (short thesis paper) may be written on the subject-matter of course. 
Instead of this dissertation, a two-month internship can also be organised in the law firm of Professor Jacques Derenne with the drafting of an internship report and a first professional experience in the field of State aid and competition law in general. This internship can also be organised with other professors who are also private practitioners or with public or private institutions in agreement with the LL.M. management.

Organisational remarks and main changes to the course

Courses are normally held, from September/October until the end of December, in the LL.M. lecture room in building B 33, third floor.

They are being held in principle, in 2024, from 9:30 am to 12:30 pm on Thursdays. Changes in dates may take place and will be communicated sufficiently in advance.

The presence of students is especially required given the intreactive character of the course (and as early as possible sharp for the good organiastion of the course). Arrangements must be made to anticipate possible delays in public transport or in case of difficult weather conditions.

Contacts

Jacques Derenne
jderenne@sheppardmullin.com
 

Association of one or more MOOCs

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