Article 346(1) TFEU and Strategic Autonomy: A Possible Loophole to Grant State Aid in the Context of Geopolitical Struggles?

Research output: Contribution to journalArticlepeer-review

Abstract

The current geopolitical situation has led to various calls for investment in Europe’s strategic autonomy, for example with regard to the defence and security sector. However, the possibil-ity for Member States to grant financial support is restricted by EU State aid law, leading some stakeholders to argue that there is a friction between the geopolitical need to invest in Europe’s strategic autonomy on the one hand, and EU State aid law on the other. In this con-tribution, we examine whether Member States could avoid and/or alleviate this friction by in-voking Article 346(1)(b) TFEU. This Treaty provision, often overlooked by legal scholars, stip-ulates that Member States may, in principle, take all measures they consider necessary for the protection of their essential security interests, without having to consider EU State aid law. By analysing relevant case-law of the EU Courts, however, we argue that the aforementioned Treaty provision has a limited scope, and that, therefore, Member States, in principle, must comply with the EU State aid rules when they contribute to Europe’s strategic autonomy.

Original languageEnglish
Pages (from-to)150-160
Number of pages11
JournalEuropean State Aid Law Quarterly
Volume22
Issue number2
DOIs
Publication statusPublished - 2023

Bibliographical note

Funding Information:
Wout De Cock is a postdoctoral researcher at the Department of Economics, Management, and Leadership of the Belgian Royal Military Academy and the Vrije Universiteit Brussels. Gregory Kegels is a doctoral researcher at the department of Applied Economics of the Vrije Universiteit Brussels. He also works at the Department of Economics Management and Leadership at the Belgian Royal Military Academy as a military reservist. Caroline Buts is a professor at the Department of Applied Economics of the Vrije Universiteit Brussels. She heads the research group Brussels Centre for Competition Policy. She is managing editor of EStAL. Cind Du Bois is the head of the chair of economics and a professor at the Department of Economics, Management & Leadership at the Belgian Royal Military Academy. This article has been prepared within the framework of the BEPIDS project (Belgian Economic Potential in the Industry of Defence and Security), a project funded largely through the ‘Belgian Federal Public Planning Service Science Policy’ (BELSPO) and partially by the Belgian ‘Royal Higher Institute for Defence’ (RHID). All hyperlinks were correct as last checked on 29 June 2023.

Funding Information:
63 They concern: aid for research and development project, aid for projects awarded a Seal of Excellence quality label, aid for Marie Sklodowska-Curie actions and ERC Proof of Concept actions, aid involved in co-funded research and development projects, aid for Teaming actions; aid involved in the co-funding of projects sup-ported by the European Defence Fund or the European Defence Industrial Development Programme; investment aid for research infrastructures; investment aid for testing and experimentation infrastructures; aid for innovation clusters; innovation aid for SMEs; aid for process and organisation innovation; and aid for research and development in the fisheries and aquaculture sector.

Publisher Copyright:
© 2023, Lexxion Verlagsgesellschaft mbH. All rights reserved.

Keywords

  • State aid
  • Defence

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