A Test for Determining Whether State Aid Infringes Other Provisions of EU Law

State aid that infringes non-State aid EU law may not be declared compatible with the internal market. In practice, the Commission systematically examines whether State aid measures based on Article 107(3)(c) infringe other EU law. For the first time, in a recent judgment, the Court of Justice of the EU addressed the question of how extensive the Commission’s review of non-State aid law should be. Given the vast body of EU law, the Court ruled that the Commission cannot be expected to examine every legal act. Although this is sensible, the Court also ruled that the Commission does not have to justify the absence of an explicit examination of other non-State aid law. The Court missed an opportunity to lay down criteria or guidelines on how the Commission ought to conduct its assessment of compliance with non-State aid law because it implicitly defined the wrong test. The Commission’s task should not be to confirm compliance with all other EU law but to exclude possible infringement of other EU law directly related to the subject matter of the aid. This paper argues that it is sufficient for the Commission to examine whether those aspects or conditions indissolubly linked to an aid measure necessarily lead the aid grantors or aid recipients to contravene EU law.