EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3) which favours certain undertakings or the production of certain goods (selectivity); and 4) which is liable to distort competition and affect trade between Member States. State aid which follows all the above criteria should be considered unlawful and prohibited in the light of Treaty on the Functioning of the European Union. However, on of the derogations contained in Article 107(2) and (3) of Treaty on the Functioning of the European Union may apply. Doubts may arise from the concept of “affect trade”. It was explained in the judgment of the Court of Justice of the European Union of 17 September 1980: “Where state financial aid strengthens the position of an enterprise in comparison with other enterprises competing in intra-Community trade, these other enterprises must be considered to be affected by this help”. At this point, a legitimate question arises, which concerns the relationship between the definition of state aid (the concept of state aid) and the support of sports clubs by public authorities. It should be noted that, at the professional level, sports clubs operate primarily in legal forms that are characteristic of entrepreneurial status. Therefore, it is necessary to consider whether (and above all when) it is permissible to support their activities with public funds and in which cases aid granted to such entities by public authorities loses the status of legality. The exact procedure for notifying state aid is not the subject of this article. However, it should be mentioned in order that the authority of the European Commission (the body responsible for monitoring state aid) to recognize the aid as admissible (compatible with the internal market) is very broad. It includes an assessment of an economic and social nature against the background of the objectives and tasks of the European Union. As indicated by the Court of Justice of the EU in its judgment of 12 December 2002, C-456/00, French Republic v Commission : TheCommission enjoys awide discretion in the application of Article 87(3) of the Treaty establishing the European Community (currently the Treaty on the Functioning of the European Union), which requires economic and social assessments in the intra-Community context. When examining whether the discretion has been exercised lawfully, the Court cannot substitute its own assessment for that of a competent authority but must confine itself to examining whether that authority’s assessment is not vitiated by manifest error or a misuse of powers. It is also important that in Article 108(3) of the Treaty on the Functioning of the European Union, the standstill clause, i.e., the obligation of a Member State to refrain from implementing the proposed measures, until the procedure

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