Régimen jurídico de las ayudas públicas al transporte aéreo en la Unión Europea

Juan Antonio Perez Rivarés

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In a Spain in the midst of economic turmoil, where the crisis is inevitably accompanied by media announcements of public aid plans, the study of the legal regime of state aid under European Union law proposed by Juan Antonio Perez Rivarés is more than topical. If, as its title announces, the book focuses more particularly on the specificities of air transport aid, the author’s critical analysis and even more so the solutions he proposes by way of conclusion do indeed concern State aid law as a whole. The more specific study of the air transport sector, shaken by the attacks of 11 September 2001, disrupted by the emergence of low-cost airlines, paralysed by the eruption of the Icelandic volcano and subject to constant restructuring, mergers and alliances, in some cases with the contribution of public capital, is also of interest.

After a useful reminder of the general rules applicable, followed by a brief presentation of their use in the field of air transport (Chapter I), the author goes into detail about the Commission’s 1994 guidelines (Chapter II), supplemented by those of 2005 (Chapter III), and first of all questions their legal nature and the binding nature of the criteria they lay down for the Community institutions. The author notes, of course, that the initially hesitant case law of the Court of Justice seemed to answer this question in the affirmative as early as 1994. However, the Commission has so far continued to apply inconsistently the principles it has itself defined. The author therefore denounces from the outset the legal uncertainty thus generated for operators, which he uses as a common thread in his analysis. A detailed study of two fundamental principles of the State aid system, namely the private investor principle and the single aid principle, which are not devoid of particularities when applied to air transport (Chapter IV), illustrates the difficulties caused by the Commission’s inconsistent use of these principles.

Chapter V of the book, which is particularly relevant in the current context of the numerous airline restructurings, is devoted to the implications of the sale of companies which have received State aid declared incompatible with the internal market. If the transfer takes place before the unlawful nature of the aid is recognised and is structured as the sale of shareholdings in the share capital of the company concerned or of its assets, the identification of the real beneficiary of the aid, responsible for its repayment, is not without its difficulties. From a comparative reading of Community decisions with the system adopted by the World Trade Organisation or with the national law of the Member States, the author concludes that there is a need for a unification of the criteria used which would enable purchasers to determine with certainty whether they run a risk of repayment.

The book ends with a plea for the application by the national judge of the rules on State aid, based on an examination of the French, British and Belgian experiences and which, according to Juan Antonio Perez Rivarés, provides more effective protection of the legal interests at stake than that offered by a procedure before the Commission. The chapter examines the various difficulties which may be encountered by the judge hearing a public aid case, for which the chapter is moreover openly intended. The author concludes by calling for more advanced training in Community law for Spanish judges, who are still timid in this area, and for the creation of specialised chambers within the courts to support judges dealing with State aid disputes, in order to ensure, in the same way as the preliminary ruling mechanism, uniform application of Community rules.

Finally, we should not fail to highlight the voluntary and enthusiastic conclusion, in which the author regrets the inactivity of the Council, which has resulted in depriving the European Parliament of any opportunity to participate in the drafting of the rules applicable to State aid and in creating a legal vacuum that has been inadequately filled by the Commission’s guidelines.

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Florence Legeay, Régimen jurídico de las ayudas públicas al transporte aéreo en la Unión Europea, May 2011, Concurrences N° 2-2011, Art. N° 36162, pp. 244-245

Publisher Librería Bosch, S.L.

Date 3 March 2011

Number of pages 1514

ISBN 978-8476989562

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