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Competition Law Challenges in the Next Decade

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Sofia Oliveira Pais

In the European Union, competition law has expanded and matured, assuming a key role in the promotion of consumer welfare, economic progress and public interest in general. Nevertheless, several issues remain open. Should the European Union remain faithful to antitrust public enforcement or fully consider the complementary role of private enforcement? Are the European solutions concerning exclusionary abuses coherent and predictable? What role should National Competition Authorities play in the context of State Aid? This book attempts to analyse and discuss some open, selective questions concerning three particular topics on competition law that are becoming highly relevant in the European and national praxis: antitrust private enforcement, exclusionary abuses and state aid. To address these issues, two seminars and international conferences, supported by the European Commission, took place at Católica Porto School of Law, Catholic University of Portugal, in March 2014 and March 2015. This publication includes the papers presented in those events, which gathered well-known and respected scholars and practitioners in the field of competition law, leading to a productive debate about EU competition law challenges in the next decade.

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Part III. State Aid: New Regulations

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Part III state aID: new regulatIons 197 The evolution of the “effects on trade” and “distortion of competition” requirements under the EU State aid regime Manuel Fontaine camPos1 Introduction The EU Court of Justice considers since Altmark that the effects of an aid consisting in the distortion or threat of distortion of competition and disturbance of trade between Member States are part of the State aid concept, under Article 107(1) of the TFEU. A State that wishes to grant aid will only be subject to the requirement of notification to the European Commission and to the obligation of non-implementation of the aid (pending a Commission decision) provided that the aid fulfils those re- quirements. Recently, a commentator considered that “the most funda- mental defect in the Commission’s State aid practice is that when it finds that a measure is selective, it assumes almost automatically that it distorts competition, although this assumption is not justified”.2 To realize the extent to which such situations may happen it is necessary to determine the exact content of those requirements. That is the object of this paper. 1. The meaning of “effects on trade” and “distortion of competition” according to the text and legislative context of Article 107(1) The Treaty establishing the European Coal and Steel Community did not condition the ban of subsidies and State aid to effects on trade and distortion of competition. The aid was prohibited – Article 4(c) – without the need to demonstrate the production of any effects.3...

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