Resumen de The General Court’s Ruling in Tercas: Between Imputability of the Aid to the State and Use of State Resources
This Insight examines the clarification provided by the General Court’s ruling in Tercas (namely, judgment of 19 March 2019, joined cases T-98/16, T-196/16 and T-198/16, Italy and Others v. Commission) with regard to two constituent elements of the notion of State aid: the “imputability to the State” and the “use of State resources”. As to the “imputability to the State” element, the General Court in Tercas called for a stricter standard of proof in cases where the alleged aid is granted not by the State, but by a State-owned company or a private entity. This statement is based on a sound methodological approach. Indeed, mere circumstantial evidence would not be enough to prove the exercise, on the part of the State, of a decisive influence on a private or State-owned entity’s decision to adopt the aid measure and on the disposal of the resources through which the contested measure is financed. As to the “use of State resources” element, Tercas suggests that the proof of that element might be inextricably linked to the proof of the “imputability to the State” element. Indeed, the issue of whether the State has exercised a decisive influence on the adoption of the aid measure is inherently connected to the issue of whether the State had the power to dispose of the resources employed to finance that measure. Thus, the cumulative nature of the two elements at issue boils down to what can be referred to as “evidentiary circularity”, in that proof of one element is often also proof of the other and viceversa.
