Kommunala underprisöverlåtelser och återbetalningskrav med stöd av art. 88.3 EGF – En studie av svensk process- och sanktionsrätt utifrån den gemenskapsrättsliga effektivitetsprincipen

Abstract

Private state aid enforcement with respect to below market value transactions carried out by Swedish municipalities – A study on the conformity of Swedish procedural and substantial rules with the principle of effectiveness of EC law Recently in Sweden, several local governmental entities (municipalities) have engaged in commercial transactions that, essentially, have been aimed at transferring the ownership of public services – for example schools and local medical care centers – to private undertakings. A few of these transactions have been declared by Swedish administrative courts to constitute illegal below market value transfers of public resources. The essay seeks to determine whether the Swedish national provisions that govern legal claims based on the directly effective Art. 88(3) of the EC Treaty, are compatible with the principle of effectiveness, i.e. to what extent these provisions (do not) render virtually impossible or excessively difficult the exercise of rights conferred by Art. 88(3) EC. The author investigates the conformity of national rules with the principle of effectiveness in a situation where a) a private party seeks to enforce recovery of unlawfully adopted state aid and b) the European Commission has yet to take any action with respect to the aid measure. By examining the ECJ case-law on the principle of effectiveness vis-à-vis the case-law on Art. 88(3) EC, the author concludes, inter alia, that several Swedish procedural provisions are deemed to be found incompatible with the principle of effectiveness. Furthermore, the author ends up concluding that in respect of a competitor’s right to enforce aid recovery, the current case-law of the ECJ leaves certain key questions unanswered, most notably whether or not national law must provide a competitor the possibility to bring a recovery action directly against the aid recipient.