Delphi considers introduction of Swedish legislation on state aid as positive

Delphi has submitted a referral concerning the Official Government Report on Illegal State Aid (SOU 2011:69). Delphi is of the opinion that it is positive to introduce Swedish legislation concerning state aid. It does to a great extent agree with the proposed regulation but believes that e.g. the Swedish Competition Authority should have certain supervisory responsibilities and also that state aid granted by the legislator should be contestable.       

Delphi’s expertise group on EU and Competition Law, Public Procurement and State Aid continuously advices public and private parties in questions regarding state aid. Illegal state aid can take many different forms e.g. state grants, free guarantee commitments, under-cost purchases, favorable loans or tax benefits that favor individuals or companies. The prohibition of state aid which distorts competition between EU Member States is one of the cornerstones in the EU’s regulation on competition. However, it has been problematic for the operators that are negatively affected when competitors receive state aid to stop the illegal state aid in Sweden through a court proceding and there has not been a clear regulation on how repayment of illegal state aid should be handled. The report Illegal State Aid (SOU 2011:69) has now proposed rules to facilitate for individuals and companies to act against illegal state aid. 

Delphi welcomes the proposals on new legislation in the report. The extended possibilities to initiate court proceedings are important in order to ensure the full effectiveness of EU law in Sweden and ensure effective competition.

“It is unfortunate that the draft legislation is not applicable on state aid granted through tax or other decisions made by the legislator. To ensure the full effectiveness of EU law it is important that all forms of illegal state aid can be attacked”, says partners Anna Ulfsdotter Forssell, Elisabeth Eklund and Kristian Pedersen.

Delphi proposes further e.g. that the Swedish Competition Authority should have a limited supervisory responsibility by being able to reclaim state aid that has been found illegal by the European Commission. A private party should not be forced to risk the legal costs in such a situation. Delphi further proposes that the Swedish Competition Authority should be able to do this in a simplified manner by introducing the possibility of a fine order similar to the provision in the Competition Act.      

Contact:

Anna Ulfsdotter Forssell
Partner
Advokatfirman Delphi
Ph. +46 709-25 25 03
email. anna.ulfsdotter-forssell@delphi.se