Do not lead us into temptation!
This opening address I happened to prepare on the 2nd of March 2022, more precisely on Ash Wednesday. Ash Wednesday marks, on the one hand, the end of the carnival season, during which people tried to banish the winter by dressing up as ghosts, goblins and uncanny creatures from nature and thrashing about wildly with wooden sticks or making noise with a rattle or ratchet, and, on the other hand, it signals the forty days of Lent, which Jesus spent in the desert. Whilst in the desert Jesus was put to the test all in all three times by the Satan. Once the Satan asked Jesus to prove to him being the son of God by transforming stones into bread, a second time he urged him to throw himself down from the parapet of the temple, claiming that angels would fly to his rescue before he would touch the ground. Jesus retorted that God is not to be put to the test. But the Satan did not give up. A third time the Satan tried, took Jesus to a high mountain, showing him all the kingdoms and riches of the world whilst promising as follows:
“All these I shall give to you if you will prostrate yourself and worship me.”
As you all may well know, the Satan did not succeed, as Jesus refused by proclaiming that only God alone he was prepared to worship.
This story from the holy Bible springs to my mind when looking with mounting awe and astonishment at the ever and ever expanding General Block Exemption Regulation. Having entered into force on 1st July 2014 as Regulation 651/2014 as the rightful successor to Regulation 800/2008 it was first amended – with a focus on ports and airports – on 14 June 2017 by Regulation 2017/1084, to be followed by Regulation 2020/972 of 2 July 2020, subsequently by Regulation 2021/452 of 15 March 2021 and, hitherto so, by Regulation 2021/1537. But more and more magnificent news for the Union´s Member States are in preparation. By the end of last year a public consultation took place on another major overhaul of the GBER, aligning it with the new secondary law adopted by the Commission in the form of inter alia new Regional Aid Guidelines, novel Guidelines on State aid for climate, environmental protection and energy and, still to arrive, new Aid Guidelines for Research, Development and Innovation. Ever more and ever more complicated provisions are being thrust into what the Commission has hailed as the principal tool for assessing the compatibility of aid measures, allowing itself to focus on the truly distorting scenarios endangering the well-being of the internal market.
Member States should please no longer bother the Commission with all these things they can very well self-assess on the basis of the GBER. In other words, translating it into the story of the Satan trying to lead Jesus into temptation the Commission seems to say to Member States:
“All these measures I shall allow you to realise, once you worship my GBER.”
Worshipping the GBER, really? In its rulings in Eesti Pagar (C-349/17) and BMW (C-654/17 P), the European Court of Justice (once even as the Grand Chamber) ruled that the responsibility of misapplying the provisions of the GBER is entirely on the Member States and the aid beneficiaries, with no legitimate expectations arising from the exercise of self-assessment. All the riches that the GBER promises to beneficiaries may well evaporate just as a fata morgana in the desert once the public authorities make a mistake in applying the latter´s provisions. What I still fear is, however, that even at the end of the forty days of Lent commencing today, Member States may still be led into temptation.