State Aid control in search of legitimacy: still a (long?) way to go. Reflections on T-486/18 RENV – Danske Slagtermestre v European Commission

In Danske Slagtermestre v European Commission, the General Court annulled the Commission decision finding that no State Aid was involved in the 2013 Danish reform on wastewater treatment contributions. The Court addressed two key issues: the violation of the principle of good administration (impartiality) in State Aid investigations and, on substance, the interpretation of the ‘Notion of Aid’ in cases involving public infrastructures. While the latter is a more typical (and technical) ‘State Aid issue’, related to the still-blurred boundaries of the ‘Notion of Aid’, the focus on impartiality is rather unconventional. The Court emphasized the importance of an unbiased handling of State Aid cases, as impartiality ensures equality of treatment, ‘which is at the heart of the EU’. However, this promising statement has not been followed by an explicit overruling of the existing case law, which only offers a limited protection for third-party rights in State Aid procedures. As for the notion of State Aid, the Court examined the measure under the ‘market economy operator principle’, which it deemed applicable in light of a recent extensive interpretation by the Court of Justice. The ruling contains contentious statements, confirming the persistence of legitimacy issues in State Aid control, which should not be underestimated given the growing political dissatisfaction with Article 107 TFEU.