When implementing
public policies, Member States’market interventions can sometimes cause
structural disadvantages to affected undertakings. Typically, Member States
then seek to offset these disadvantages. In this context, the article
investigates the case law on Article 107(1) TFEU to determine whether the structural
disadvantage argument can be effectively invoked in State aid proceedings,
meaning that the offsetting of such disadvantage is considered as an aid-free
public measure. To clarify the research framework the article discusses the
concept of economic advantage. It then provides insights into the development
of case law, revealing different approaches of the European Court of Justice
(ECJ) and General Court (GC) and their gradual alignment. This is followed by a
discussion of the Orange judgments, illustrating how the courts currently
interpret Article 107(1) TFEU regarding structural disadvantages. The article
then proposes a new approach, namely the net effect approach, to identify
aid-free interventions when dealing with public measures that neutralize
structural disadvantages. Ultimately, the article summarizes key findings that
demonstrate the utility of the net effect approach and its compatibility with
State aid ‘ecosystem’ and, more generally, with the fundamental principles of
EU law.