Are State aid damages claims around the corner? An economist’s perspective

To date, there have been only a few successful damages claims following the granting of incompatible State aid, despite similar damages claims being common in other areas of competition law. A study published in 2019 by the European Commission highlights that the burden of proof for claimants in State aid damages claims is “rather high” and that practical guidance from the Commission on the economic techniques could help to facilitate bringing such claims successfully. As discussed in this article, lessons learned from other areas of competition law can help to overcome the main challenges identified in State aid damages claims from an economics perspective, and the relevant economic and financial tools already exist to help overcome some of the perceived challenges in the State aid context. In light of the unprecedented scale of government support that has been provided to tackle the impact of the COVID-19 pandemic, it might be reasonable to expect an increase in the number of State aid damages claims in the coming years. This may represent the point at which State aid damages claims start to catch up with other areas of competition law.

I. Introduction 1. Whether it deals with restrictive agreements, unilateral conduct or State aid, European competition law allows parties that have been harmed by a breach of the relevant competition rules to seek compensation (under certain conditions) for the damages that they have suffered. 2. Damages actions in relation to breaches of Articles 101 and 102 have become an important part of the competition law landscape in Europe. A recent survey found that there had been 239 cartel damages court actions (of which 59 resulted in damages and 86 resulted in findings of liability) across 30 European countries since 1998, with the frequency of cases growing. [1] By contrast, between 2007 and 2018, only six claims of damages following a breach of State aid rules have been successful.

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Joseph Bell, Enno Eilts, Nicole Robins, Simon Yarak, Are State aid damages claims around the corner? An economist’s perspective, September 2021, Concurrences N° 3-2021, Art. N° 101311,

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