EU State aid

State aid is essentially a publicly-funded gratuity to an entity for the purposes of activity for which there is a potential or actual market, and the aid is capable of affecting inter-State trade (see further, What is State aid).

The EU State aid rules (Articles 107 to 109 TFEU) give the European Commission (Commission) wide powers to investigate and order the recovery of illegally granted economic assistance which distorts the market in favour of the recipients of such assistance.

Economic assistance in any form whatsoever (ie an exemption from or reduction in the normal level of tax, loan or guarantee by the State), which is specific or selective in that it benefits certain undertakings or the production of certain goods, has routinely been considered to be State aid by the Commission and the EU Courts.

If a measure amounts to State aid and it is not notified to, or approved by, the Commission before it is put into effect, it will be unlawful. Some exemptions and exclusions apply and these are subject to detailed guidance from the Commission.

When does a measure amount to State aid?

State

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Automated decision-making and DSARs: right to access means a right to explainability (CK v Magistrat Der Stadt Wiendun & Bradstreet Austria GMBH)

Information Law analysis: The Court of Justice provided several clarifications around the scope of data subject access requests (DSARs) in the context of automated decision-making. The court held the determining factor for whether information constitutes ‘meaningful information about the logic involved’ under Article 15(1)(h) of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) is whether the information enables the data subject to understand the logic involved in automated decision-making involving their personal data. The court also held disclosure by controllers should be underpinned by the principles of transparency, which requires information to be clear, accessible and intelligible, both in terms of content and form, from the perspective of data subjects. In the context of automated decision-making this doesn’t necessarily mean providing the exact algorithm, if it doesn’t help the data subject’s understanding of the ‘how’. The court confirmed DSARs do not mandate the disclosure of trade secrets, but this can only be decided by the relevant supervisory authority or competent court, after assessing all relevant information provided to them by a controller. The protection of trade secrets cannot be used as a blanket excuse by businesses to withhold certain information from individuals making a request under Article 15(1)(h) of the EU GDPR. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

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