Of vexed questions and vexatious litigation: a comment on Eventech

Abstract

The ruling in Eventech concerns the question whether State aid is entailed if a regulatory framework allows certain undertakings (but not others) free access to public infrastructure.
Should the answer to this question take account of the regulatory context and purpose or does the commitment to an 'objective', 'effects-based' definition of State aid eschew these considerations?

There is (arguably) a place for regulatory context and regulatory purpose in the interpretation of the scope of art.107(1) TFEU, both with regard to the issue of the use of public resources and with regard to the selective nature of the public measure.

As long as this interpretation requires that the regulatory framework governing access to public infrastructure is applied in a consistent and objectively verifiable fashion, this approach does not contradict the objective nature of the definition of State aid. However, Eventech throws scant light on these issues.

Sweet and Maxwell: European Law Review http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?recordid=427&productid=6968

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