By Aidan Robertson QC, Brick Court Chambers
This excellent textbook is now in its sixth edition, having first been published in 1993. This edition is edited by Professor Leigh Hancher, Yvo de Vries and Francesco Maria Salerno, supported by a team of some 35 contributors drawn from private practice and academia in the EU and the UK as well as officials from the European Commission writing in their personal capacity.
This edition has been published five years after its predecessor. It continues to expand in scope and depth, as well as responding to the challenges posed, first, by the post-Brexit legal order in the form of the subsidy control provisions contained in the UK/EU Trade and Cooperation Agreement and, second, by the massive amount of State support which has had to be approved in response to the COVID-19 pandemic.
The structure of the book is helpfully described in the opening chapter. There are five parts. Part I sets out the general framework of EU state aid law. Part II then addresses six specific issues: services of general economic interest, social services of general interest, guarantees, risk finance investments, aid in the area of taxation and infrastructure These are singled out for individual treatment because both of their importance as separate topics and the fact that an in-depth discussion of them does not neatly fit in with the remaining parts. Part III covers sectoral aid, i.e. agriculture, the financial sector, transport, aviation, broadcasting, broadband deployment, shipbuilding, sports transport, energy and environment protection. Part IV addresses horizontal aid in the fields of regional aid, research and development, and rescuing and restructuring aid. The final Part V looks at procedure and remedies, devoting a final chapter to the challenges posed by COVID-19.
The breadth of scope of this subject is evident from this summary of contents. The number of contributors gives this book the impression of being the Bellamy & Child of State Aid law. It also shares the same approach of seeking to state and explain the law, while not engaging in detailed critique. This authoritative tone is a real strength as it enables one to rely upon it as an authority in court proceedings as well as in administrative procedures without the need for further citation.The exception to this Halsbury style approach is the second chapter in which Professor Nicolaides sets this work in context with a succinct and illuminating account of the economics of granting and controlling state aid.
Hancher, Ottervanger and Slot is destined to be with us for editions to come, so this review concludes with a couple of small suggestions for the future. First, it would be useful to have references to domestic case law applying the State aid rules. For example, the possibility of bringing a Francovich claims for damages against a Member State for granting unlawful aid is explained in the section on actions before national courts, without referring to the English cases exploring this issue, most notably the judgment of Falk J in Credit Suisse v HMRC [2019] EWHC 1922 (Ch) rejecting such a claim on the facts of that case. If there are national decisions meriting citation, they should be referred to in the text and all national decisions should have their own table at the beginning, separate from European Commission and Court references. This would add yet further value to this already invaluable work. Second, it is clear that the UK will continue to operate a form of State aid regime pursuant to domestic legislation announced in the 2021 Queen’s Speech giving effect to the UK/EU Trade and Cooperation Agreement, It would be useful to have an overview analysis as to the extent to which that regime replicates or differs from the EU State aid regime (while recognizing that could be a topic for a book in its own right). Perhaps that could replace the final chapter in this edition on COVID-19 and State aid which one would hope would only be of historical interest by the time of the next edition.
AIDAN ROBERTSON QC
Full publication details: “E.U. State Aids” by L. Hancher, T.R. Ottervanger and P.J. Slot, pub Sweet & Maxwell, London, U.K., 2021, 6th edition, pp 1298 (inc. index, + xcv tables), £325, ISBN-0780414080553, hardback