This is the second edition of a book co-authored by two German practitioners, and brings the 2003 first edition up to date as far as January 2009. This edition takes into account the most recent legislative and judicial developments in the area of State aid law, including the following: decisions issued by the Court of Justice, the Court of First Instance and the German Federal Court of Justice (BGH), the General Block Exemption Regulation (GBER), the State aid Action Plan and the German laws on investment subsidy (“Investitionszulagengesetz”) and financial market stabilisation (“Finanzmarktstabilisierungsgesetz”). As in the first edition, the book is divided into nine chapters, and the general structure and focus are retained. Both
material State aid law and topics relating to procedure and enforcement are covered in this volume. In comparison with many other works in this field, the key characteristic feature of this book is that it provides a comprehensive branch-specific description of issues relevant to State aid law within individual economic sectors, instead of strictly following the methodological structure given in Article 87(1) EC (i.e. examining the State aid elements one by one). However, this approach does have a few drawbacks. Although it is certainly helpful to the practitioner to have a holistic overview of the most important potential areas of conflict in State aid law that could arise in a specific economic field (here the authors have succeeded in creating easier access to sector-specific analysis, normally hard to access), it has to be said that such an “undogmatic” approach as this does run the risk – to some extent – of lack of transparency and lack of clarity. With these remarks on the book’s structure, let us now examine its content more closely. The introductory chapter (Chapter A) starts by placing State aid control in the macroeconomic and legal-policy context. This is followed by a summary of the main sources of European State aid law. The next section gives a very brief outline of the elements of Article 87(1) EC as well as the exceptions in Articles 87(2), 87(3), 86(2) and 296(1)(b) EC. All this provides the basis for the abovementioned indepth analysis of specific sectors and branches in later chapters. However, this description is compressed into only ten pages (!), thus is probably destined less for experts and more for readers without any detailed knowledge of the field of European State aid law. To take account of the Commission’s initiative to introduce a more economic approach in State aid control, the authors have inserted a new Chapter B to cover this topic. The book distinguishes itself in a positive manner from other similar publications on this issue by not leaving the reader just with a summary of the corresponding abstract Commission statement in the State Aid Action Plan; it also provides a critical assessment of possible starting points for the concrete implementation of economic analysis within the elements of Article 87 EC. The authors suggest in this context that the balancing test should be integrated not only within Article 87(3) EC but already on the level of Article 87(1) EC, thus promoting the Commission’s aim of reducing the number of notified aids. Chapter C is devoted to the notion of State aid, i.e. the constitutive elements for public aid falling within the scope of Article 87(1) EC. At this point, sector-specific concerns are still not touched upon; this is due to the book’s general structure with in-depth analysis contained in subsequent chapters. The insertion of references to the respective textual passages in these subsequent chapters would have made the book easier to read and increased its user-friendliness. For example, the crucial relevance of the selectivity criterion for the assessment of publicly financed infrastructure measures is neither mentioned nor referred to in the general description of that criterion. (This is surprising, as the authors did this for the topic of tax measures.) Although it does leave the reader with an impression of being somewhat superficial, this Book Reviews Beihilfenrecht der EU – Das Recht der Wettbewerbsaufsicht über staatliche Beihilfen in der Europäischen Union by Thomas Lübbig and Andrés Martín-Ehlers Second edition, edition C. H. Beck Munich, 2009, xxxv + 401 pp. inc. Index, Soft cover, ISBN: 978 3 406 56924 1, € 68,– 254 Book Reviews EStAL 1 2010 chapter’s general outline of the State aid elements is well-written and provides a handy summary of prohibitions of State aid, including the latest developments regarding jurisdiction and Commission practice. In particular, the book provides a good overview of the judicial developments regarding the element of transfer of State resources– also taking into account the more recent cases of “Pearle” and “Essent Network Noord” – thus giving the reader easily accessible up-to-date information at a glance. The fourth chapter, Chapter D, as hinted at above, is dedicated to a sector-specific analysis of potential State aid conflicts arising in selected economic branches. This part of the book covers the following topics: land sales by public authorities, privatisation, nationalisation, restructuring of public assets, taxation measures, state guarantees and public funding of infrastructure. The authors’ approach (first giving a general introduction to each sector individually, followed by a brief yet comprehensive outline of the relevant Commission practice) enables readers without any indepth previous knowledge in a particular field to grasp the essential background information and get a comprehensive overall picture of State-aid relevant issues in that specific area. Although this presentation method is extremely helpful to the reader, especially to those who are practically orientated, sometimes the topics overlap and this leads to a lack of clarity. This becomes obvious, for example, in connection with the topic of sports facilities: these are discussed in the section on public land sales, thus creating the misleading impression that their potential for conflict with EC State aid law is restricted to this context only. However, considering the infrastructure character of sports facilities, their potential conflict with EC State aid becomes evident in the application of various elements of Article 87(1) EC, particularly with regard to the selectivity criterion. Therefore, it would have been more appropriate to locate a discussion of sports facilities in the section on public infrastructure measures. Still following the structure of the first edition, Chapter E deals with the State aid regulatory measures covering certain branches and industries. It thus provides wellstructured and easy access to the legal framework in manufacturing industry, the transport industry and in the services sector, including banks and public broadcasting. In this context special attention is paid to the banking sector, including a detailed analysis of the measures taken so far during the financial crisis in Germany. The chapter on horizontal aid (Chapter F) now includes a detailed presentation of the regulation adapted by the recently introduced GBER. In consequence the first edition’s separate chapter on regional aid has been integrated in this chapter. The text in this section is well-written and, in contrast with other contributions in this field, does not merely summarise the Commission’s text in the GBER but also makes a comparison with the previous regulation and situates the GBER in the context of existing regulations that border it. This chapter is fully up-to-date and covers not only the most recent special regulation adapted in the context of the financial crisis but also a brief outline of the temporary framework for overcoming the credit squeeze. A short but concise Chapter G of 13 pages is then devoted to the exception to the prohibition on State aid in Article 86(2) EC. Like most publications in this field, this book also contains a chapter (Chapter H) on the procedure and enforcement of State aid law, but this one is nearly 80 pages in length, yet again underlining the practical orientation of the volume. In this context the authors pay special attention to the issues of repaying State aid and of judicial protection in State aid cases. The book ends with a final Chapter J (perhaps for typographical reasons there is no chapter I) on the interaction of State aid law with national civil law practice, including the jurisdiction of the BGH on the invalidity of contracts according to private law in connection with aid falling under the prohibition on State aid in Article 87(1) EC. The whole book is generally well-written, its argumentation is easy to follow and its style enables even the novice reader to understand the complex and otherwise difficult subject matter of European State aid law without undue difficulty. Yet it is by no means a superficial introduction to this branch of EC competition law. Rather, it provides even the informed practitioner with a compact and practice-orientated exposition with critical viewpoints, a combination which one would normally expect to find only in large-scale volumes with correspondingly broad scopes. This book is therefore suitable for both readers searching for a comprehensive overview of EC State aid law matters and those who wish to deepen their knowledge on issues in specific sectors. Even though some 130 pages longer than the first edition, it is still a handbook, not least because it now has a handier soft-cover binding. All in all, the authors well achieved their aim of providing a practice-oriented compendium of the vast abundance of regulations, decisions and judgments in the field of State aids, including coverage of the most important developments per sector. In short this book should be regarded as a valuable and essential textbook in the field of State aid law.
