Structural guarantees for the state aid field. The community's last best hope against national arbitrariness

In line with current tendencies of ‘new modes of governance’, this essay introduces judicial tools, which strike a balance between the respect for national autonomy in individual assessments and the effective implementation of Community law. The balance is struck through the demands of structural guarantees; administrative safeguards, which weed out arbitrary national decision-making. These administrative safeguards are particularly needed in areas where the Member States of the EU have been granted a wide margin of discretion.

Examples of demands for structural guarantees are the provision of
transparent and accessible legislation and administrative procedures based on objective criteria, as well as the access to effective judicial review. Together, they create a system of checks to prevent the discretion from turning into arbitrariness. All of these demands are ultimately emanating from the principle of rule of law, on which the European Community is said to be founded.
The existence of the demands for structural guarantees, unfortunately
constituting somewhat of an elusive ‘non-concept’ in legal doctrine, is firmly
established in this essay – through a study of their nature, as well as their
functioning. The use of structural guarantees, as a tool of judicial review, is
legitimised through their umbilical cord to the rule of law. Different
emanations of the rule of law; exemplified by the principle of equality,
effectiveness, as well as other general principles of Community law (GPCL),
are presented to give a comprehensive overview of the substantive content of
the structural guarantees. As the function of the structural guaranteesrequirements
in a judicial review is, inevitably, linked to that of GPCL in
general, the latter is used as a starting-point for the examination of the function
of structural guarantees. The case-law of the ECJ has been researched to
provide a cross-section of relevant examples of how the structural guarantees
work as a judicial tool, in practice. To conclude the probe into the specific
function of structural guarantees, the particular importance of this judicial tool,
in cases of high Member State discretion, is accentuated.

To further exemplify the introduction of structural guarantees, by the ECJ, the
developments concerning compensation of services of general economic
interest (SGEIs) are presented. The focal point being the structural demands of
the Altmark case, which are, subsequently, examined and analysed against the
intended function of structural guarantees.