A Political-Process Defense of Deference to EU Directives

5 Pages Posted: 14 Nov 2018 Last revised: 13 Dec 2018

See all articles by Ruth Mason

Ruth Mason

University of Virginia School of Law

Date Written: November 5, 2018


The Deutsche Bahn doctrine holds that EU actions, as opposed to Member State actions, are immune from state-aid scrutiny. This interpretation has a textualist grounding: Because the EU Treaty bans only “aid granted by a Member State,” it does not constrain aid granted by the EU itself.

This comment pairs the textualist grounding for Deutsche Bahn deference with a legal-process justification. Because high voting requirements to pass EU legislation give the states the tool they need to defend themselves from anti-competitive actions taken at the EU level, Commission state-aid oversight is not needed for EU legislation.

While the same political-process argument could support deference to EU legislation in fundamental freedoms cases, this comment distinguishes state-aid from the fundamental freedoms, arguing that the values underlying the fundamental freedoms—including political unity, and dignitary and personal rights values—cannot be adequately protected even by unanimous voting rules at the EU level.

Keywords: state aid, Deutsche Bahn deference, EU directives

JEL Classification: K33, K34

Suggested Citation

Mason, Ruth, A Political-Process Defense of Deference to EU Directives (November 5, 2018). Virginia Law and Economics Research Paper No. 2018-17. Available at SSRN: https://ssrn.com/abstract=3279008

Ruth Mason (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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