Financial Instruments and their Proportionality and Consistency under EU Law

Not just since the corona crisis have financial instruments in the form of guarantees, loans, and equity witnessed a growing popularity as a form of state aid vis-à-vis ‘regular’ grants. This thesis investigated whether the European Commission designs financial instruments and applies their legal framework in accordance with the principles of proportionality and consistency under European Union (EU) law.

It found that the Commission does not adhere to the requirements of financial instruments under the case law of the EU Courts in a consistent manner. Specifically, it does not conduct the required balancing exercise of positive and negative effects of instruments, but applies maximum amounts and screening methods as well as a checklist in its compatibility assessment under the proportionality principle. Thus, the thesis recommends the introduction of so-called manifest negative effects, which are applied in other state aid areas and are apt to solve these inconsistencies: They would indicate to stakeholders which potential negative effects could disproportionally distort competition and markets and therefore be incompatible with EU law.

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