State aid, public funding and infrastructure: Case C-288/11 P Mitteldeutsche Flughafen AG, Flughafen Leipzig-Halle GmbH, established in Leipzig European Commission (‘Leipzig-Halle’) [2012]

The Leipzig-Halle case is a significant case for EU State aid law in determining the parameters of when, and how, the State can legally finance infrastructure projects. The case confirmed a change in attitude developing in the Commission, of not assuming that publicly funded infrastructure projects were free of State aid. For this reason, the case may be seen as a significant milestone in the modernization of State aid practice. The subsequent application of the ruling by the Commission especially in guidance and legislation such as the GBER has led to criticisms that the case extended the competence and jurisdiction of the Commission (which continued to argue that each case should be assessed on its own facts and context), exposing the Member States’ choices in funding infrastructure projects to greater transparency, greater bureaucracy as well as opening up the possibility of challenges by third parties affected by the public policy choice. The structure of the analysis of the case is as follows: Part II explains the Commission practice towards infrastructure funding prior to Leipzig-Halle. Part III provides a discussion of the facts of the case, the Commission Decision, and the judgments of the General Court (GC) and the CJEU. Part IV looks at the general response to the Leipzig-Halle ruling. Part V outlines the inclusion of infrastructure projects in the General Block Exemption Regulation. Part VI examines two cases on sports infrastructure. Part VII Examines the Commission Notice on the Notion of State aid. Part VIII examines the Greek Motorway project as a case study of a trans-European infrastructure project. Part IX assesses the impact of the Leipzig-Halle ruling on Commission practice and the effect on the Member States autonomy to fund infrastructure projects against the backdrop of EU policy.