Article 108(2) TFEU as a Tool for the Commissionto Bypass Article 258 TFEU Proceedings

Abstract

The legal basis the European Commission (EC) choses for its actions when it finds a Member State’s action (or inaction) to be in breach of its obligations stemming from its EU membership vary in different fields of law. This is particularly visible in State aid on one side, and general infringement proceedings on the other. But the line between the general character of a possible infringement and that of State aid law is sometimes blurred and difficult to establish. This article analyses if the EC does not abuse its powers when it chooses Article108(2) TFEU, instead of Article 258 TFEU. A positive answer to that question is difficult to find and controversial. However, given the benefits the EC gains by taking action under Article 108(2) TFEU, it is visible that the EC’s choice can be biased because of those benefits.

Keywords

• state aid
• infringement proceedings