The British Energy (BE) rescue aid case is an interesting example of the crossover between judicial review in the High Court and judicial review in the European Courts in Luxembourg. This is because the granting of state aid usually generates two decisions: firstly, the decision of the domestic public sector body to grant aid and secondly, the European Commission’s (EC’s) decision granting or refusing approval of the state aid.
Both decisions are subject to judicial review – the former before the Administrative Court; the latter before the Court of First Instance (CFI) of the European Communities. Strategic issues arise for a claimant who wishes to challenge the granting of state aid, including whether the emphasis should be placed on litigating the case in the English courts rather than before the EC and, eventually, the CFI. Consideration must be given to the different timescales involved, the different requirements on standing and any differences in procedural rights and eventual remedies.
