LA NOZIONE DI AIUTO DI STATO E LA NECESSITÀ DI UNA NUOVA MODERNIZZAZIONE DELLA DISCIPLINA

The purpose of this dissertation is to analyse the notion of State aid, with the aim of understanding whether it is still adequate to respond to the new needs inherent to the European single market as a result of recent economic and political events. The analysis starts from the examination of State aid competences, since they are the backbone of the whole system, which, as is well known, is regulated by Art. 107 et seq. TFEU. In this context, the focus is on the intersection between the primary authority of the Member States, which, at least at an initial stage, have full discretion as to the granting of a measure of advantage, and the strong powers of the European Commission, the only institution entrusted with aid control. Having examined how the intersection between these competences constitutes a point of encounter and, in some respects, of collision in this field, this research analyses the genesis and evolution of the notion of State aid, in order to understand the path that led to its current definition contained in a 2016 Commission notice (the “Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union”), which is also discussed in detail. Having established the foundation, the focus then shifts to the impact that two recent events have had on the State aid regulation: the Covid-19 pandemic and the Russian-Ukrainian conflict. The economic crises they generated resulted in State aid becoming one of the most widely used tools to provide relief for the real economy: in this context, the temporary frameworks issued to deal with the situation are analysed, as well as the interpretation that was given to the notion of aid. In the same perspective of understanding how modern events may have conditioned the definition in question (and vice versa), the paper first looks at the Brexit phenomenon and the difference between the European notion of “State aid” and the international notion of “subsidy”, and then inserts a third term of comparison given by the concept of “foreign subsidies”, which is the topic of a very recent protectionist regulation issued by the EU legislator. Finally, an extensive reflection is dedicated to the prospects of modernising the notion of State aid, where it is argued that the start of a new innovation process may be the key to the correct maintenance of level playing field.