State aid and infrastructure
Produced in partnership with CMS
State aid and infrastructure

The following Competition practice note Produced in partnership with CMS provides comprehensive and up to date legal information covering:

  • State aid and infrastructure
  • Economic versus non-economic activity
  • Types and levels of State aid in infrastructure projects
  • Types of State aid
  • Levels of State aid
  • Steps in State aid analysis
  • Instances in which the existence of State aid is excluded
  • Instances in which there is no need to notify for State aid clearance but other requirements could apply
  • Instances in which notifying for State aid clearance is necessary

Economic versus non-economic activity

The public funding of infrastructure was traditionally considered to fall outside the State aid rules since their construction and operation were considered to constitute general measures of public policy and not an economic activity. For example, the Commission’s 1994 Aviation Guidelines stated that, ‘the construction or enlargement of infrastructure projects (such as airports, motorways, bridges, etc) represents a general measure of economic policy which cannot be controlled by the Commission under the Treaty rules on State aids’.

However, since the end of the 1990s, several factors, such as liberalisation, privatisation, market integration and technological progress have increased the scope for commercial exploitation of infrastructures.

In the Aéroports de Paris judgment, the General Court acknowledged this evolution, clarifying that the operation of an airport had to be seen as an economic activity. More recently, the General Court in Leipzig/Halle confirmed that the construction of a commercial airport runway is an economic activity in itself (upheld on appeal).

While these cases relate specifically to airports, the principles developed by the EU Courts appear to be of broader interpretation and thus applicable to the construction of other infrastructures that are indissociably linked to an economic activity. Thus, it is now clear that the construction, maintenance, operation and use of infrastructure which is commercially exploited constitute an economic activity.

On the other hand, the funding of infrastructure which is

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