Phedon Nicolaides

College of Europe (Bruges)
Professor

Professor Phedon Nicolaides has been educated in the United States, the Netherlands and the United Kingdom. He has a Ph.D. in economics and a PhD in law. He is professor at the College of Europe in Bruges, and has previously held academic positions at the London Business School, the Royal Institute of International Affairs (London) and the European Institute of Public Administration (Maastricht). He is currently senior fellow at Maastricht University. He has also gained experience in government as Minister Plenipotentiary in the Cyprus Ministry of Foreign Affairs and in the private sector as Secretary General of the Cyprus Shipping Council. During the negotiations of Cyprus for accession to the EU he was advisor to the Cyprus Chief Negotiator. He has acted as consultant to a number of public authorities in various EU Member States and to international institutions and organisations such as the European Commission, the European Investment Fund, the European Economic and Social Committee, the OECD and the UN. He has published extensively on European integration, competition policy and state aid, and policy implementation. He is also on the editorial boards of several journals.

Linked authors

University Paris II Panthéon‑Assas
KGA Associés (Paris)

Articles

11590 Bulletin

Phedon Nicolaides The EU Commission holds that an incompatible aid can be recovered from an undertaking that continues some of the activities of an insolvent undertaking that received the aid (Termoelectrica / Electrocentrale Deva)

41

Commission decision 2015/1877: Aid granted by Romania via Hidroelectrica to Termoelectrica and Electrocentrale Deva [OJ L275, 20 October 2015]* This is a peculiar case. All three companies are owned by the state. Hidroelectrica generates much of its electricity from hydroelectric power. (...)

Phedon Nicolaides The EU Commission reminds national Courts that neither the importance of a service nor a decision of a tribunal is sufficient to remove a public measure from the scope of application of State aid rules (CSTP / Buonotourist / Micula Brothers)

93

Compensation for Public Service Obligations and Compensation for Damage* Compensation for public service obligations is compatible with the internal market when, at minimum, a PSO is well defined in an entrustment constituting an official act of a public authority, the revenues and costs of (...)

Phedon Nicolaides The EU General Court explains that a public authority can act as a private investor in paying to bring forward future revenue (Netherlands, Gemeente Leidschendam-Voorburg, Bouwfonds Ontwikkeling and Schouten & De Jong Projectontwikkeling)

59

The Market Economy Investor Principle Applies also to Avoidance of Losses* A public authority can act as a private investor in paying to avoid costly contractual clauses. A public authority can act as a private investor in paying to bring forward future revenue. Introduction When a market (...)

Phedon Nicolaides The EU General Court states that, despite having a margin of discretion, a prudent private investor always carries out an assessment of the potential profitability of the investment before it commits any money (SACE and Sace BT)

79

Application of the MEIP to Transactions between Parent and Subsidiary Companies* The Market Economy Investor Principle also applies to transactions between related companies. A private investor enjoys a margin of discretion in deciding in favour or against an investment. However, despite that (...)

Phedon Nicolaides The EU General Court reminds Member States that individual awards of de minimis aid must remain below the relevant threshold as well as the sum of all individual awards in any three-year period (Italy)

66

The Use and Abuse of De Minimis Aid & State Resources* Individual awards of de minimis aid must remain below the relevant threshold as well as the sum of all individual awards in any three-year period. Introduction This article reviews a case that, among other things, deal with the use (...)

Phedon Nicolaides The EU Court of Justice explains that measures that impose additional charges for the purpose of maintaining equality between operators do not necessarily qualify as State aid (Kernkraftwerke Lippe-Ems / Hauptzollamt Osnabrück)

35

Taxation of nuclear power* On 4 June 2015, the Court of Justice also issued a preliminary ruling in case C-5/14, Kernkraftwerke Lippe-Ems v Hauptzollamt Osnabruck. A German court requested a preliminary ruling in a dispute between Kernkraftwerke Lippe-Ems [KLE] and the tax authorities in (...)

Phedon Nicolaides The EU Commission reminds that aid measures which are funded by beneficiaries themselves are unlikely to constitute State aid (Flemish Centre for Agricultural and Fisheries Marketing)

82

Commission in decision SA.39652* Aid measures which are funded by beneficiaries themselves are unlikely to constitute State aid. De minimis aid may be granted on condition that not only individual awards of aid remain below the various thresholds defined in different de minimis regulations (...)

Phedon Nicolaides The European Commission explains that a restructuring aid can finance any part of a restructuring plan and that compensatory measures initiated before the granting of restructuring aid can be taken into account as long as they are linked to the restructuring itself (Niki Luftfahrt)

40

Restructuring Aid* Restructuring aid can finance any part of a restructuring plan. Compensatory measures initiated before the granting of restructuring aid can be taken into account as long as they are linked to the restructuring itself. Restructuring aid On 13 May 2015, the General Court (...)

Phedon Nicolaides The European Commission finds measures offering free services to SMEs not to constitute State aid because they could not be reasonably expected to affect cross-border trade (Wirtschaftsbüro Gaarden)

50

Germany Scores a Hat-trick of Non-Aid Measures!* At the end of April, the European Commission announced that seven measures were found not to constitute State aid because they could not be reasonably expected to affect cross-border trade. The finding of no affectation of trade is rare. That (...)

Phedon Nicolaides The European Commission finds a measure allowing a rental agreement to accommodate medical practitioners at a preferential rate not to constitute State aid for being to limited and lacking of affectation of interstate trade (Medical centre in Durmersheim)

47

Germany Scores a Hat-trick of Non-Aid Measures!* At the end of April, the European Commission announced that seven measures were found not to constitute State aid because they could not be reasonably expected to affect cross-border trade. The finding of no affectation of trade is rare. That (...)

Phedon Nicolaides The European Commission finds measures not to constitute State aid in the medical sector because, being of interest only for local patients, they did not effected trade between member States (Landgrafen - Klinik)

58

Germany Scores a Hat-trick of Non-Aid Measures!* At the end of April, the European Commission announced that seven measures were found not to constitute State aid because they could not be reasonably expected to affect cross-border trade. The finding of no affectation of trade is rare. That (...)

Phedon Nicolaides The European Commission finds a measure aimed at helping public hospitals not to constitute State aid because it did not affect the trade between member States (Hradec Králové Region)

76

SA.37432: Public hospitals in the Hradec Králové Region, Czech Republic* At the end of April, the European Commission announced that seven measures were found not to constitute State aid because they could not be reasonably expected to affect cross-border trade. The finding of no affectation of (...)

Phedon Nicolaides The European Commission finds a measure helping an outdoor training centre not to constitute State aid for lack of affectation of interstate trade, based on the local origin of users (Glenmore Lodge)

62

SA.37963: Glenmore Lodge, UK* At the end of April, the European Commission announced that seven measures were found not to constitute State aid because they could not be reasonably expected to affect cross-border trade. The finding of no affectation of trade is rare. That seven measures were (...)

Phedon Nicolaides The European Commission finds a measure not to constitute State aid because the services provided occurs at a local level and is thus unlikely to attract customers from other member States to any meaningful degree (Community Amateur Sports Clubs)

86

SA.38208: Member-owned golf clubs, UK* At the end of April, the European Commission announced that seven measures were found not to constitute State aid because they could not be reasonably expected to affect cross-border trade. The finding of no affectation of trade is rare. That seven (...)

Phedon Nicolaides The EU General Court explains that the fact that undertakings are obliged by law to comply with certain tests does not justify the subsidisation of their costs with public funds (Belgium)

50

Do Free but Compulsory Tests Confer a Selective Advantage?* State aid rules apply to measures which are either harmonised at EU level or are left to the discretion of Member States. The protection of public health is no sufficient reason for removing a public measure from the scope of Article (...)

Phedon Nicolaides The EU Court of Justice and General Court explain how to determine whether state guarantees constitute State aid and, if yes, how much aid is involved (Banco Privado Português)

184

State Guarantees* The amount of State aid in a guarantee that makes possible the granting of a loan to a well-collateralised firm in difficulty is not the difference in premium but the difference in interest rates. Beneficiaries of guarantees not notified to the Commission do not have any (...)

Phedon Nicolaides The EU General Court holds that compensation for structural disadvantages encumbering undertakings is still State aid except if it satisfies the Altmark criteria (France)

75

Relief from Pension Contributions* Compensation for structural disadvantages encumbering undertakings is still State aid. Compensation for structural disadvantages encumbering SGEI providers is not State aid only if it satisfies the Altmark criteria. Judgment of 26 February 2015, T-135/12, (...)

Phedon Nicolaides The EU General Court holds that when the Commission orders recovery of aid that is intended to be passed on to final consumers, it must first calculate the amount, if any, that has been retained by the direct recipients of the aid (Aer Lingus / Ryanair)

60

A New but Dubious Concept of Advantage * When the Commission orders recovery of aid that is intended to be passed on to final consumers, it must first calculate the amount, if any, that has been retained by the direct recipients of the aid. If the calculation is too complex, the Commission can (...)

Phedon Nicolaides The EU General Court surprisingly agrees to a reduction of the recoverable amount of an aid according to the amount allegedly passed on to consumers (Aer Lingus / Ryanair)

31

Should State Aid that Is Passed on to Consumers Not be Recovered?* Should the amount of recoverable aid be similarly reduced by the amount that is allegedly passed on to consumers? I will argue the case against it. Introduction On 5 February 2015, the General Court, in cases T-473/12, Aer (...)

Phedon Nicolaides The EU General Court explains that in the field of State aid it is not necessary to define precisely the relevant market in order to determine the existence of an advantage (Club Hotel Loutraki)

60

ii) Monopolies and the market economy investor principle* Several casinos in Greece appealed against Commission decision SA.33988 which found that an exclusive licence granted to OPAP, the Greek betting undertaking, to operate 35,000 video lottery terminals [exclusive rights 1] and the (...)

Phedon Nicolaides The European Commission explains that public funding does not have to satisfy the very strict Altmark criteria in order to be authorised if it complies with the relevant regulation or guidelines (Stretto airport)

92

Failure to Satisfy Ex Post the Altmark Criteria, but Compliance with the 2014 Aviation Guidelines* Public service obligations must be entrusted by an official act and defined with sufficient precision. Imprecise definition of public service obligations makes it impossible to identify the costs (...)

Phedon Nicolaides The European Commission holds that services provided by a public authority in the exercise of its public duties are not economic in nature, even if market operators offer similar services (TenderNed)

86

Electronic procurement in the Netherlands* Services provided by a public authority in the exercise of its public duties are not economic in nature, even if market operators offer similar services. The decision analyse in depth the presence or not of economic activity and also respond to (...)

Phedon Nicolaides The European Commission explains that a private investor may consider a possible damage of its reputation from laying off workers but the damage has to be quantified (SNCM)

24

ii) SNCM* In 8 July 2008, the Commission took the view that certain measures in favour of Société Nationale Maritime Corse-Méditerranée [SNCM] did not constitute State aid and certain other aid measures were compatible with the internal market. The 2008 decision was partially annulled in September (...)

Phedon Nicolaides The General Court of the EU holds that a tax measure that applies to certain transactions is not selective if it does not preclude any company or type of asset (Netherlands Maritime Technology Association)

29

Tax Measures with Specific Objectives Can still Be General* A tax measure that applies to certain transactions is not selective if it does not preclude any company or type of asset. Conditions for the application of a tax measure may be justified by the logic of the tax system. The Commission (...)

Phedon Nicolaides The EU General Court reminds Member States that when they claim that an exemption follows from the logic of the tax system they have to make absolutely sure that they treat equally and consistently all similar cases (Ryanair)

78

Another Measure that Cannot Be Justified by the Logic of the Tax System* The granting of a tax exception is often found to constitute State aid. But the non-levying of a tax may also fall within the scope of Article 107(1). Competitors have more rights when the Commission does not open the (...)

Phedon Nicolaides The European Commission reminds that it does not only examines the compatibility of the aid itself but also the compatibility of the levy or tax with internal market rules (Renewable energy)

39

Green Electricity and Reduction of Energy Taxes for Energy-Intensive Users* Support of electricity production from renewable energy sources is normally compatible with the internal market. Reduction of taxes on electricity used by energy-intensive industries is allowed only for certain sectors (...)

Phedon Nicolaides The EU General Court holds that tax measures are selective when they constitute an exception or deviation from the normal tax system and that this exception or deviation is limited only to certain undertakings (Banco Santander)

60

A Surprising Interpretation of the Concept of Selectivity* Tax measures are selective when they constitute an exception or deviation from the normal or common system of taxation. In addition, the exception must be open only to a pre-defined category of undertakings. Introduction Often, the (...)

Phedon Nicolaides The European Commission holds that infrastructure projects which are economic in nature are subject to State aid scrutiny regardless of their importance (Øresund Fixed Link)

59

An Important Project of Common European Interest* Infrastructure projects which are economic in nature are subject to State aid scrutiny regardless of their importance. However, public funding of transport networks which are open to all users does not constitute State aid. Introduction State (...)

Phedon Nicolaides The European Commission holds that the granting of exclusive rights may confer an advantage but does not in itself result in transfer of state resources (Jadrolinija Imuna Pharm)

100

Exclusive Rights* The granting of exclusive rights may confer an advantage but does not in itself result in transfer of state resources. Private undertakings that hold exclusive rights are not utilising state resources by the mere fact that they operate under rights conferred by the state. (...)

Phedon Nicolaides The European Commission explains that a system which is predominantly based on solidarity does not become economic in nature when operators have a small degree of discretion to compete on quality and to make profit from efficient provision of services (Spoločná zdravotná poisťovňa)

135

Compulsory health insurance in Slovakia* Health insurance which is based on the principle of social solidarity is not economic in nature. Solidarity means that citizens have a right to the service in question and the quality of the service they obtain is not linked to the price they pay, if (...)

Phedon Nicolaides The European Commission reminds Member States of mistakes they can avoid when they compensate operators on whom they impose public service obligations (Dublin Bus and Irish Bus)

64

Public Service Obligations: A Few More Mistakes that Can Be Avoided* Even efficient companies will fail the 4th Altmark criterion if their costs are not proven to be comparable to those of a typical and well-equipped undertaking. Public funding of infrastructure is not State aid to users only (...)

Phedon Nicolaides The EU Commission finds that tax amortisation of financial goodwill arising from the acquisition of foreign companies constitutes State aid that is incompatible with the internal market (Spain)

28

Corporate taxation* Last October, the Commission adopted decision 2015/314 which was published in the Official Journal on 27 February 2015. In this decision, the Commission finds that tax amortisation of financial goodwill arising from the acquisition of foreign companies constitutes State aid (...)

Phedon Nicolaides The Court of Justice and the General Court of the EU hold that a measure adopted via faulty procedures can be a State aid and that the mere quality of competitor is not sufficient to be considered as individually concerned (Commerz Nederland ; Dansk Automat)

32

i) State Aid Can Be Attributed to the State even when Granted via Faulty Procedures ii) Who Can Challenge a Commission Decision Authorising State Aid?* Main points For a measure to constitute State aid, it must, among other things, be attributed to a decision of the state. When a State aid (...)

Phedon Nicolaides The European Commission publishes a textbook decision that gives ample guidance on how to establish whether a public authority acts as a market operator or private investor (NEUWOGES / Bavaria Immobilien)

53

Land Development* The sale of land and buildings owned by a public authority conforms with the market economy operator principle when i) it is profitable, ii) there is no alternative transaction that is economically more attractive, and iii) the sale is as profitable as similar transactions (...)

Phedon Nicolaides The EU General Court and the European Commission focus on relative prices instead of absolute prices in assessing if price regulation of casinos entry tickets can be a State aid (Greece / Commission)

30

Advantage from High Entry Prices: Can It Be That Both the Commission and the General Court Have Misunderstood Simple Economics?* Main points Price regulation can constitute State aid if the state forgoes potential revenue. However, for price regulation to constitute State aid it must (...)

Phedon Nicolaides The EU General Court and the European Commission explain how to determine the existence of selectivity when similar but not identical measures are adopted by similar authorities in the same Member State (Hansestadt Lübeck)

50

The Jurisdictional Side of Selectivity* Main points A measure determined independently by similar public entities is not selective even if it varies across those entities. A measure is selective when the entity that has adopted it, applies it differently to undertakings which are within its (...)

Phedon Nicolaides The European Commission applies for the first time the General Block Exemption Regulation to sport infrastructures and holds that public funding of local sport infrastructures may constitute State aid (Kristall Bäder)

106

The First Application of the New GBER to Sport Infrastructure* Public funding of local sport infrastructure may constitute State aid. The granting of a concession contract for the construction and/or operation of the infrastructure may not exclude State aid for the concessionaire. Measures (...)

Phedon Nicolaides The EU General Court upholds the decision of the Commission stating that compensatory payments can be State aid even if partially funded by private funds and specifies that recovery may exclude payments that satisfy the conditions of the relevant de minimis regulation (Greece)

101

Compensatory Payments Can be State Aid* Main points Article 107(1) also applies to payments that offset the damage caused by natural disasters. It is irrelevant that the compensation is partial or that competitors did not suffer similar damage. A measure can be State aid even if it is (...)

Phedon Nicolaides The EU General Court refuses to find the Altmark criteria fulfilled and reminds that Member States have discretion to define what they consider as an SGEI but only after having identified market gaps (Zweckverband)

146

Not Surprisingly, Another Member State Fails to Prove Compliance with the Altmark Criteria* Main points Maintaining capacity that is necessary for the provision of normal services cannot be classified as a service of general economic interest. State aid may not be granted towards the costs (...)

Phedon Nicolaides The EU General Court explains that the profitability that would satisfy a private investor is a rate that covers the cost of capital for that particular investment (Ciudad de la luz)

54

Benchmarks of Profitability for Private Investors* Main points A public authority that injects capital in an undertaking [or provides any other kind of finance] must ensure that the funding can achieve the rate of return that can, in principle, satisfy a private investor. The rate that can (...)

Phedon Nicolaides The EU Commission approves a financial aid for the construction of a multiarena in Copenhagen after finding proof that the measure was both necessary and proportionate to realise the project, as well as sufficiently open to competition (Elitefacilitetsudvalget)

34

Article published on Lexxion State Aid Blog Transparency Is also Needed at the European Commission Level* Main points As more State aid measures in the future will be granted on the basis of the General Block Exemption Regulation, Member States will have to make the aid they grant more (...)

Phedon Nicolaides The European Commission decides that the grant of capital injections to a company facing difficulties in the meaning of the Rescue and Restructuring Guidelines was not covered by regional aid exemptions stipulated by Article 107(3)(a) (Elan)

34

Capital Injection that Turns out to be Incompatible State Aid* Main points Public authorities and the entities they control need to ensure that injection of public money in an undertaking must satisfy the market economy investor principle, otherwise it will be considered to be State aid. (...)

Phedon Nicolaides The EU Court of Justice finds failure to fulfil treaty obligations, since the member state did not recover the aid declared unlawful and incompatible with the internal market in a timely and effective manner (Commission / Spain)

41

Article published on Lexxion State Aid Blog The Cost of not Recovering Incompatible Aid* Main points The Commission is not obliged to quantify precisely the amount of aid that has to be recovered. The Member State that fails to recover incompatible aid or fails to recover all of it risks (...)

Phedon Nicolaides The EU General Court rules on the matter of power purchase agreements entailing effects of foreclosure that limited the scope for eligible customers to switch to the free market (Dunamenti / Tisza)

130

Article published on Lexxion State Aid Blog Market Operator in Electricity Distribution: Long-term Purchasing Agreements Must Balance Risks and Rewards* Main points A market operator accepts to be bound in long-term contracts, which entail more risk because market conditions may change, (...)

Phedon Nicolaides The EU Commission establishes that the compensation for the provision of inter-regional bus transportation services constitutes incompatible state aid as the requirement for ex ante determination of net costs has not been fulfilled (Simet)

48

Article published on Lexxion State Aid Blog The Perils of Ex Post Compensation of Public Services Obligations* Main points -* Providers of SGEI must maintain separate accounts. -* Parameters of compensation must be determined in advance. Ex-post formulation is not in conformity with State (...)

Phedon Nicolaides The EU Commission issues guidelines on state aid for environmental protection and energy that have a wider scope and require a more rigorous application of the principles of necessity and proportionality of aid

56

Article published on Lexxion State Aid Blog The New Guidelines on State Aid for Environmental Protection and Energy, 2014-2020* Main points The new guidelines are wider in scope: They also cover energy infrastructure, energy capacity and reductions from electricity levies. The new guidelines (...)

Phedon Nicolaides The EU Commission deems that the land development scheme for industrial and commercial use in Germany did not encompass any advantage as the purchasers of subsidised assets paid the market price

22

Article published on Lexxion State Aid Blog Land Development without State Aid* Main points Activities which are part of the performance of public duties are non-economic in nature [e.g. spatial development]. Public funding of these activities does not constitute State aid. The transfer of (...)

Phedon Nicolaides The European Commission holds that simultaneity of investments by public and private investors is a necessary but not sufficient condition for public investments to be free of State aid (Larco General Mining & Metallurgical company)

59

Simultaneity of Investments by Public and Private Investors is a Necessary but not Sufficient Condition for Public Investments to be Free of State Aid* Main points If a public authority guarantees a loan to a company that is in financial difficulty and charges a low premium, the whole loan, (...)

Phedon Nicolaides The EU Court of Justice issues two judgements on the application of the Private Investor Principle and correspondently the Private Creditor Principle (Rousse Industry)

39

Article published on Lexxion State Aid Blog The Importance of a Correct Framing of the Private Creditor and Private Investor Tests* Main points A public authority acting as private creditor must exhaust all legally available means of recovering money owed to it. A private creditor may agree (...)

Phedon Nicolaides The EU Court of Justice renders preliminary ruling on the notion of “linked enterprises” in relation to a dispute on the calculation of the amount of an investment subsidy (HaTeFo)

60

Article published on Lexxion State Aid Blog SMEs Linked through Natural Persons Two or more enterprises may constitute a single undertaking when their owners and/or managers are related in a way that they can act jointly to exercise influence over the decision of those enterprises. (...)

Phedon Nicolaides The EU Court of Justice rules that the national courts dealing with a case of recovery of illegal state aid may not disregard the statement of position made by the Commission in the relevant decision (Mediaset)

124

Article published on Lexxion State Aid Blog The Role of National Courts in Recovery of Incompatible State Aid* Introduction In December I examined the judgment in the case of Lufthansa v Frankfurt-Hahn, which laid down certain obligations for national courts whenever they are petitioned to (...)

Phedon Nicolaides The European Commission decides that the compensation for the operation of the two additional routes linking Sardinia to the mainland and the recapitalisation measure constituted illegal state aid and orders recovery (Saremar)

48

Article published on Lexxion State Aid Blog The Importance of Precise Definition of Public Service Obligations* Main points The imposition of a public service obligation must be preceded by market analysis that shows that the market underprovides. For compensation of public service (...)

Phedon Nicolaides The EU Commission finds the compensation of school bus and tram transport in the Land Rhineland-Palatinat to be compatible with the internal market (Landesbetrieb Mobilität Rheinland-Pfalz)

37

Price Discounts and Compensation for Public Service Obligations: A Case of Questionable Need for Aid* Main points SGEI can be defined and public service obligations can be imposed only when the market underprovides. The parameters of compensation must be determined in advance. Public service (...)

Phedon Nicolaides The EU Court of Justice interprets the concept of intervention through state resources and finds that the offset of additional costs arising from the obligation to purchase green electricity constituted state intervention (Vent de Colère)

379

Article published on Lexxion State Aid Blog The Non-Equivalence of the Various Methods of Supporting Green Electricity* Introduction Ever since the judgment of the Court of Justice in 2001 on PreussenElektra [case C-379/98], Member States have been grappling with the question of how to (...)

Phedon Nicolaides The EU Commission considers the aid for the implementation of an urban development project for schools in the region of Attica to be compatible with the internal market based on Article 107(3)(c) TFEU (JESSICA)

19

A JESSICA-Funded Public-Private Partnership* Main points Public funding of a public-private partnership for the construction and maintenance of public schools may still involve State Aid. State Aid may have an incentive effect even when it is granted to a project that has already started. (...)

Phedon Nicolaides The European Commission confirms the use of the funding gap method for determining the necessity and proportionality of State aid for infrastructural projects (Port of Capo d’Orlando)

47

Management of Port Infrastructure through a very long Concession Contract: Is the Funding Gap Method Meaningful?* Main points Competitive selection of the operator of an infrastructural facility normally eliminates State aid. However, modifications to the contract after the operator is (...)

Phedon Nicolaides The EU Commission decides to consider the aid for renewing an ice arena in the municipality of Heerenveen to be compatible with the internal market since it served a policy objective of common interest (Thialf)

67

Article published on Lexxion State Aid Blog Competitive Elements in the Selection of Operators of Sports Infrastructure May not Be Enough to Eliminate State Aid* Main points The existence of an advantage cannot be excluded when the operator of an infrastructural facility is chosen through a (...)

Phedon Nicolaides The EU Court of Justice rules on the matter of non-notified state aid subject to a formal examination procedure initiated by the Commission and the measures to be adopted by the national courts hearing an application for cessation or recovery (Deutsche Lufthansa / Flughafen Frankfurt-Hahn)

93

Article published on Lexxion State Aid Blog Non-notified State Aid and the Role of National Courts [C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn]* Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would (...)

Phedon Nicolaides The EU Commission finds that the potential of the archaeological museum to affect intra-EU trade was low and therefore the measure did not constitute state aid (Messara Creta)

52

Article published on Lexxion State Aid Blog Why Can the Commission Not Be Consistent in its Analysis of Economic Activity and Affectation of Trade?* Introduction If you ask a national official who deals with State aid to identify the most challenging aspects of working with State aid rules, (...)

Phedon Nicolaides The EU Court of Justice establishes that the privatisation of the Austrian bank has not been carried out in the light of the private investor in a market economy principle (GRAWE)

153

Article published on Lexxion State Aid Blog Private Vendor Principle: How to Organise a State-Aid-Free Sale of Public Assets* Introduction The private investor principle (PIP) or market economy investor principle is well established in the case law. A closely related concept is the private (...)

Phedon Nicolaides The EU General Court rejects the appeal against a budgetary grant in favour of the state owned television company without providing any further explanation on the matter of inefficient undertakings assigned with PSOs (Télévision française 1)

167

Article published on Lexxion State Aid Blog Tax Hypothecation and Economic Efficiency under Altmark: T-275/11, French Television 1 v Commission* Background France Télévisions is a limited company wholly owned by the French State. As France abolished advertising on public television, it also (...)

Phedon Nicolaides The EU Commission considers that the notified scheme fulfils the conditions of the environmental aid guidelines and passes the compatibility test in accordance with Article 107(3)(c) TFEU (Anti-opt-out scheme)

34

Article published on Lexxion State Aid Blog Economically Rational Environmental Aid* Introduction A few months ago I wrote an article on this blog explaining the big puzzle of environmental State aid. Since the rules allow State aid which is only a proportion of the extra costs incurred by (...)

Phedon Nicolaides The EU General Court clarifies the nature of SGEI and affirms that it is necessary to identify the presence of market failures justifying the grant of compensation (Colt Télécommunications France)

303

Article published on Lexxion State Aid Blog. New Case Law on Incentive Effect, “Private Borrower”, Advantage, Compensation, SGEI and Market Failure* Introduction The posting reviews three recent rulings of the General Court. They are significant because they introduce substantial nuances in (...)

Phedon Nicolaides The EU General Court annuls the Commission decision rejecting the accuracy of the economic calculations concerning the rate of interest that a hypothetical private investor would have paid in a similar situation (Poste Italiane)

231

Article published on Lexxion State Aid Blog. New Case Law on Incentive Effect, “Private Borrower”, Advantage, Compensation, SGEI and Market Failure* Introduction The posting reviews three recent rulings of the General Court. They are significant because they introduce substantial nuances in (...)

Phedon Nicolaides The EU General Court reinforces the doctrine of inseparability in relation to compensation for public service obligations assigned to environmental organizations (Germany/Commission)

111

Article published on Lexxion State Aid Blog. The Emerging Doctrine of Inseparability and Compensation for Public Service Obligations [T-347/09, Germany v Commission]* Introduction In the landmark judgment in Leipzig Halle, the General Court stated that infrastructure which is inseparable (...)

Phedon Nicolaides The European Commission holds that even when a public authority invests together with private investors on pari passu terms, the expected profitability of the project should still be demonstrated in order to comply with State Aid rules (Project Consorzio Casalasco del Pomodoro)

32

Application of the Market Economy Investor Principle to a Company Processing Agricultural Products* When a public entity injects fresh capital in a company in which it is already a shareholder, the new capital does not constitute State aid when it satisfies three conditions: i) all (...)

Phedon Nicolaides The EU Commission decides that the measure for the development of sustainable tourism had no impact on intra-EU trade and, consequently, did not constitute state aid (NUTS II region Southeast)

43

Article published on Lexxion State Aid Blog How Not to Determine the Effect on Trade [Infrastructure for Tourism, Czech Republic (SA.35909)]* Introduction Normally the articles in this blog identify landmark court rulings and seminal decisions of the Commission which set important precedents (...)

Phedon Nicolaides The EU Court of Justice dimisses the appeal of the Commission in relation to the failure to act as regards a state aid measure allegedly granted to Italian airlines (Ryanair)

47

Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Rights of Complainants Concerning Unlawful Aid: Case C-615/11 P, European Commission v Ryanair, 16 May 2013 The European Commission appealed against the (...)

Phedon Nicolaides The European Commission finds that the measures taken in the Czech public libraries case do not constitute state aid in the meaning of Article 107(1) TFEU because libraries are not undertakings

39

Article published on Lexxion State Aid Blog. The Flexible Boundary between Economic and Non-economic Activities (part I)* This is a rather long posting divided into two parts both of which deal with the concept of economic activity. In part I, I analyse two cases outside the field of State (...)

Phedon Nicolaides The European Commission approves a state aid for the expansion of a gas storage facility that could enable the entry of more gas suppliers on the Polish market (PGNiG)

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Article published on Lexxion State Aid Blog. How to Use Economic Tools to Ensure the Proportionality of Aid (Commission Decision SA.34938 on a gas storage facility in Poland)* Introduction Normally, economic analysis is used by the Commission to find out whether a measure confers an abnormal (...)

Phedon Nicolaides The EU Commission finds that the state aid granted under the form of a fiscal measure implemented in breach of the standstill provision was compatible with the internal market (Multiplier Giftenaftrek)

28

Article published on Lexxion State Aid Blog Fiscal Leveraging: Donations and State Aid for Culture and Sports* Introduction In this blog I examine primarily a Dutch measure that supports cultural institutions by providing tax incentives to individuals and corporations to make donations to (...)

Phedon Nicolaides The EU Court of Justice rules that seemingly separate interventions may constitute a single measure if they are inseparable by way of timing, purpose and the condition of the beneficiary undertaking (Bouygues)

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Article published on Lexxion State Aid Blog Where is the Money? The Link between Advantage and Transfer of State Resources* On 19 March 2013, the Court of Justice delivered an important judgment in case C-399/10 P, Bouygues v European Commission concerning aid that was granted by France to (...)

Phedon Nicolaides The European Commission finds that the Italian real estate tax exemption granted to non-commercial entities carrying out social, welfare, health and religious services does no constitute state aid in the meaning of Article 107(1) TFEU

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Article published on Lexxion State Aid Blog. Part II: Non-commercial activities and absolute impossibility to recover incompatible aid* Commission Decision 2013/284 on municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented (...)

Phedon Nicolaides The EU Commission decides that the application of the VPS method for the valuation of agriculture and forestry land does not confer an advantage on the purchaser (BVVG)

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Article published on Lexxion State Aid Blog An “Alternative” Method of Valuation for State-Aid-Free Sale of Public Land* The obligation of the state to act as a private vendor When a public authority sells an asset to an undertaking, it must sell it at the market price. The case law is clear (...)

Phedon Nicolaides The EU Commission finds that Germany has demonstrated that the proposed tax reduction for passengers constitutes compatible state aid (German Flights Tax Reduction)

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Article published on Lexxion State Aid Blog Taxes and Tax Reductions on Air Travel: Selectivity and Compatibility* This posting examines an Irish and a German measure concerning reduction in passenger taxes. As to be expected, an important issue for both measures was whether the reduction was (...)

Phedon Nicolaides The EU Commission decides that the public financing of non-commercially used infrastructure does not constitute an advantage and has no effect on interstate trade (Przemyśl)

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Article published on Lexxion State Aid Blog. A Case of Public Funding of Infrastructure that Does not Constitute State Aid: But Many Questions Remain* Introduction After the landmark judgment in Leipzig-Halle, public authorities are justifiably careful to ensure that the infrastructure they (...)

Phedon Nicolaides The EU Commission finds that the arrangements for the extension of the exclusive right to operate 13 games of chance in Greece don’t appear to confer an economic advantage (OPAP)

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Article published on Lexxion State Aid Blog The Curious Case of Applying the Market Economy Investor Principle to a Monopoly* On 3 October 2012, the European Commission concluded, in case SA.33988, that OPAP, the Greek operator of games of chance received no state aid because the Market (...)

Phedon Nicolaides The EU Commission finds that the lower rate of the air travel tax for flights to a destination located no more than 300 km from Dublin airport constitutes illegal state aid (Irish air travel tax rates)

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Article published on Lexxion State Aid Blog Taxes and Tax Reductions on Air Travel: Selectivity and Compatibility* This posting examines an Irish and a German measure concerning reduction in passenger taxes. As to be expected, an important issue for both measures was whether the reduction was (...)

Phedon Nicolaides The EU Commission states that the reluctance of a forest company to conclude long-term contracts with other saw mills falls outside the scope of the Article 107 TFEU (Bavarian State Forest Enterprise)

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Objectively Justified Pricing: The Market Economy Operator Principle* Introduction: Objective justification of price differentiation In a landmark judgment 25 years ago [February 1988], the Court of Justice established that business behaviour that appears to deviate from normal market (...)

Phedon Nicolaides The EU Commission finds that the state aid granted under the form of a fiscal measure implemented in breach of the standstill provision was compatible with the internal market (Hungarian Sport Donations)

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Article published on Lexxion State Aid Blog Fiscal Leveraging: Donations and State Aid for Culture and Sports* Introduction In this blog I examine primarily a Dutch measure that supports cultural institutions by providing tax incentives to individuals and corporations to make donations to (...)

Phedon Nicolaides The EU Commission finds that the Italian authorities failed to prove the exceptional nature of the delayed provision of aid for shipbuilding and declares the aid to be incompatible with the internal market (Cantiere Navale De Poli)

27

Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Exceptional circumstances: Commission Decision 2013/197 on aid to Cantiere Navale De Poli (IT) The measure in question concerned State aid that Italy intended (...)

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