European Court of Justice (Luxembourg)

Raphaël Vuitton

European Court of Justice (Luxembourg)
Legal Secretary

Raphaël Vuitton studied law and politics at the Lyon Institute of Political Studies (Sciences Po Lyon) and the European Institute of the University of Geneva, as well as at the Universities of Strasbourg and Luxembourg. He holds masters in European Studies (2000), in European Law (2001), and in European Litigation (2002). From 2002 to 2004, he was researcher at the Economic Law Laboratory of a Luxembourg research center, now integrated in the University of Luxembourg. Since December 2004, he is ‘référendaire’ (Legal Secretary) at the General Court of the European Union. In addition, Raphaël gave lectures in European Union Law and Constitutional law at the University of Luxembourg (2008-2009) and is, since 2014, guest lecturer in European Union Civil Service Law at the University of Lorraine.

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Articles

28235 Review

Raphaël Vuitton Brexit: The European Commission releases a new communication outlining the legal framework for State aid since the end of the Brexit transition period, especially concerning Northern Ireland, following the adoption of the Windsor framework

71

On February 27, 2023, an agreement between the United Kingdom and the European Union amended the Northern Ireland Protocol annexed to the UK Withdrawal Agreement, now referred to, in its amended version, as the "Windsor Framework". In order to set out the applicable state aid situation (...)

Raphaël Vuitton Notion of "interested party": The General Court of the European Union confirms that a trade union representing the employees of an energy production company does not have the status of "interested party" enabling it to challenge a change in the regulated tariffs for the sale of electricity (Unsa Énergie)

93

As part of the liberalization of the electricity market, in 2011 the French authorities introduced a system of regulated access to historical nuclear electricity (ARENH), enabling alternative suppliers to purchase nuclear electricity produced by the incumbent operator, EDF, at a regulated (...)

Raphaël Vuitton Illegal aids: The Court of Justice of the European Union upholds the order of the General Court dismissing as inadmissible the action brought by an undertaking against the Commission’s decision finding that Netherlands measures in favour of a private equity fund, complained of by that undertaking in a complaint, do not constitute State aid (MKB Multifunds)

95

In 2018, the Commission received a complaint from MKB Multifunds [hereinafter "MKB"], a Dutch private equity company, alleging that the Netherlands had granted illegal state aid to DVI. DVI is a private equity fund set up jointly by the Dutch authorities, a public development company and the (...)

Raphaël Vuitton Temporary framework: The General Court of the European Union confirms three Commission decisions not to raise objections to three amendments to a Dutch aid scheme designed to support small and medium-sized enterprises in the context of the Covid-19 pandemic (Bastion)

75

In three judgments handed down on the same day in broadly similar terms, the Court of First Instance upheld decisions by which the Commission had found, on the basis of the temporary framework, that there were no grounds for raising objections to three amendments made to a Dutch aid scheme (...)

Raphaël Vuitton Air sector: The General Court of the European Union annuls the Commission’s decision approving, in the context of the Covid-19 pandemic, the recapitalisation of a German airline, on the grounds that the Commission made a number of errors in applying the temporary framework COVID-19 (Ryanair ; Condor)

80

In order to support the Lufthansa Group in the context of the Covid-19 health crisis, the German authorities decided to recapitalize Deutsche Lufthansa(DLH) to the tune of €6 billion, among other measures. This recapitalization consisted of (i) a capital participation of around 300 million (...)

Raphaël Vuitton Lack of assistance: The Court of Justice of the European Union upholds the judgment of the General Court dismissing an action brought against a Commission decision rejecting a complaint alleging unlawful aid to public hospitals in the Italian region of Lazio (Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo)

107

In Italy, the healthcare system is organized within the framework under the National Health Service (SSN), established by a 1978 law. The SSN was reformed in 1992 and 1999, in particular with the introduction of a contractual system, the principle of free patient choice, and the possibility of (...)

Raphaël Vuitton Amendment: The European Commission amends the General Block Exemption Regulation to facilitate support for ecological and digital transitions and to ensure its consistency with recent texts and the current economic context

139

On March 9, 2023, the Commission approved a draft amendment to Regulation No. 651/2014, of June 17, 2014, declaring certain categories of aid compatible with the internal market (GBER). This amendment aims to ensure the articulation between the GBER and various recently adopted frameworks and (...)

Raphaël Vuitton Football club: The General Court of the European Union holds that a supporter-shareholder of a soccer club does not have the status of an "interested party" allowing him to file a complaint against the granting of alleged aid to another soccer club (PBL)

91

Was the recruitment of Lionel Messi at Paris Saint-Germain Football Club(PSG) made possible by the granting of state aid? This is essentially the question - original to say the least - raised by the case that led to the judgment under review. However, it will not be answered in the latter, (...)

Raphaël Vuitton Shipyards: The Court of Justice of the European Union partially annuls the Commission’s decision on the Spanish tax leasing scheme for the financing and acquisition of ships, due to an error in the identification of the beneficiaries from whom the aid was to be recovered (Espagne / Lico Leasing / Pequeños y Medianos Astilleros Sociedad de Reconversión)

185

Almost 10 years after the Commission adopted a decision on the Spanish tax leasing regime [hereinafter "RELF"], the litigation saga arising from it has just had a new episode, thanks to a Court ruling of 2 February 2023. The complexity of the RELF makes it necessary to briefly recall its (...)

Raphaël Vuitton Restructuring aid: The Court of Justice of the European Union clarifies the admissibility of an action brought against a Commission decision, adopted without initiating the formal investigation procedure, taking into account commitments voluntarily given by a Member State when notifying an aid project (Anthony Braesch)

115

The Italian bank Banca Monte dei Paschi di Siena [hereinafter "BMPS"] carried out a capital increase in 2008, underwritten by J. P. Morgan Securities [hereinafter "JPM"], by means of contracts (known as Fresh). JPM obtained the necessary funds from a financial institution, which issued bonds (...)

Raphaël Vuitton Renewable energy: The General Court of the European Union dismisses the action for failure to act brought by a Bulgarian electricity producer against the European Commission concerning the alleged failure to act on its complaint concerning State aid to producers of electricity from renewable sources (Ekobulkos)

101

By a 2016 decision, the Commission considered, without opening the formal investigation procedure, that the support scheme for the production of energy from renewable sources stemming from a 2011 law and 2004 and 2013 ordinances, was compatible with the internal market in accordance with (...)

Raphaël Vuitton Renewable energy: The Court of Justice of the European Union provides clarification regarding the incentive nature of state aid, in the context of the 2014 guidelines on state aid for environmental protection and energy (Veejaam ; Espo / Elering)

74

In order to encourage the development of decarbonated energy, the Estonian authorities have set up a mechanism allowing electricity producers to obtain, under certain conditions, aid for the production of electricity from a renewable energy source. This aid could be paid within 12 years of the (...)

Raphaël Vuitton Company property tax: The Court of Justice of the European Union confirms the judgment of the General Court of the European Union dismissing an action brought against the decision of the European Commission by which it held, without initiating the formal investigation procedure, that the method used by the Irish authorities to determine the property tax of fossil-fuel electricity producers did not constitute State aid (Irish Wind’s Farmers’ Association)

67

In 2016, the Irish Wind Farmers’ Association [("IWFA")], an Irish association of wind farm operators, lodged a complaint with the Commission alleging that, through the method used by the Irish authorities for the reassessment of business property tax, fossil fuel power generators had received (...)

Raphaël Vuitton Classification of a State aid measure: The General Court of the European Union considers that the European Commission cannot rule on the compatibility of a national measure with the internal market without having first established that the measure constitutes State aid (Pays-Bas)

78

Can the Commission declare a national measure compatible with the internal market without first classifying it as State aid within the meaning of Article 107(1) TFEU? This is essentially the question that the Court of First Instance answered - in this case in the negative - in the judgment (...)

Raphaël Vuitton Sports: The Court of Justice of the European Union confirms the judgment of the General Court of the European Union annulling a decision of the European Commission classifying as State aid incompatible with the common market a public guarantee granted to a Spanish professional soccer club for a bank loan (Valencia Club de Fútbal)

139

The judgment under commentary is set in the context of the proceedings initiated by the Commission concerning State aid granted to various Spanish professional soccer clubs (see, in this regard, Trib. EU, 26 Feb 2019, Athletic Club, T-679/16, EU:T:2019:112, Trib. EU, Feb. 26, 2019, Fútbol Club (...)

Raphaël Vuitton Agricultural sector: The General Court of the European Union confirms that interest rate subsidies and State guarantees on existing and new loans granted to undertakings established in Greek territories affected by serious fires in 2007 constitute State aid incompatible with the internal market (Sogia Ellas AE)

64

In 2007, Greece was the scene of very large forest fires, during which, despite the declaration of a state of emergency and a major mobilization of international solidarity, 85 people lost their lives and 270,000 hectares were burned. In order to support the companies present in the affected (...)

Raphaël Vuitton Double taxation: The Court of Justice of the European Union considers that the authorities of a Member State responsible for the recovery of aid may apply, for the purposes of determining the amount to be recovered, a national provision providing for a mechanism to prevent double taxation (Fossil)

248

Under a 2010 Income Tax Act [hereinafter "ITA 2010"], passive interest income and intellectual property royalties [hereinafter "relevant income"] were not considered taxable income in Gibraltar. The same Act also introduced a mechanism for the avoidance of double taxation in section 37. (...)

Raphaël Vuitton Electricity: The General Court of the European Union confirms the European Commission’s decision approving a modification of the Italian electricity capacity mechanism (Tirreno Power / Set)

121

In order to address the failures of the electricity market, due in particular to the intermittency of certain resources, and to guarantee the availability of a sufficient amount of electrical capacity, the Italian authorities wished, in 2017, to set up a capacity mechanism. Specifically, this (...)

Raphaël Vuitton Transports: The European Commission proposes to the Council of the European Union to adopt a regulation allowing it to declare certain aid for the greenest transport compatible with the internal market and to exempt it from the notification obligation

103

While the 2008 guidelines on state aid to the rail sector are currently being revised to adapt them to regulatory and market developments and to the Union’s environmental priorities arising, in particular, from the Green Pact for Europe, the Commission has proposed to the Council that it adopt (...)

Raphaël Vuitton Firm in difficulty: The General Court of the European Union confirms the compatibility of the rescue aid granted to a German airline and clarifies the concept of “difficulty” referred to in the Guidelines on State aid for rescuing and restructuring firms in difficulty (Ryanair)

116

In a previous issue of this column, the term "habitual claimant" was attributed to Ryanair to Ryanair, whose appeals against the aid granted to to its competitors has multiplied since 2020 (see Concurrences n° 3-2021, p. 148). The reader can see that the period under review that the period (...)

Raphaël Vuitton Illegal and incompatible aid: The General Court of the European Union confirms that the decision of the European Commission finding that a loan guarantee granted to a Greek public company active in the mining sector constituted State aid (Larko)

151

With the judgment under the heading, the saga of the Larko cases - well known to the readers of this column (see, ECJ, 9 November 2017, Commission v. Greece, C-481/16, comm. R Vuitton, Concurrences No. 1-2018, pp. 134-136. 136 ; GCEU, 1 February 2018, Larko v. Commission, T-412/24, (...)

Raphaël Vuitton Admissibility: The Court of Justice of the European Union upholds the judgment of the General Court of the European Union dismissing the action brought against a decision of the European Commission relating to a Greek aid scheme for the production of electricity from renewable energy sources (Solar Ileias Bompaina)

171

In a decision adopted in 2018, without opening the formal review procedure, the the formal review procedure, the Commission found that there were there were no grounds for objecting to a Greek aid scheme Greek aid scheme, introduced in 2014, in favor of installations using installations using (...)

Raphaël Vuitton Transport: The Court of Justice of the European Union dismisses the appeals against the judgment of the General Court of the European Union confirming the decision of the European Commission not to raise objections to a measure adopted by the Land of Lower Saxony in favour of the transport of passengers in vocational training (GVN, Hermann Albers)

101

By a decision of July 12, 2018, the Commission found that a law adopted in 2016 by the Land of Lower Saxony in order to ensure sufficient public transport services for travelers in the context of their vocational training, in particular by granting them a discount on season ticket fares, did (...)

Raphaël Vuitton Arbitration: The Court of Justice of the European Union rules that the European Commission has jurisdiction to examine under State aid rules the compensation paid by Romania to Swedish investors in execution of an arbitration award made after the accession of that Member State (European Food)

112

This case could have been an opportunity for the EU courts to clarify the relationship between the provisions on state aid and bilateral investment treaties [(hereinafter "BITs")], particularly with regard to the arbitration tribunals they establish and the awards rendered by them. It is in (...)

Raphaël Vuitton Recovery obligation: The Court of Justice of the European Union orders Greece to pay a lump sum of €5.500.000 and a semi-annual penalty payment of €4.368.000, due to its failure to comply with the recovery obligation of aid granted to a Greek mining company (Larco)

105

Larko is a Greek public company active in the mining sector, which the Greek authorities considered privatizing in 2012. Following a formal investigation procedure into 6 measures allegedly benefitting this company, the Commission adopted Decision 2014/539/EU in 2014 (OJ 2014 L 254, p. 24), by (...)

Raphaël Vuitton Notification: The General Court of the European Union considers that the complainants can only denounce, within the framework of Article 24(2) of Regulation 2015/1589, the unlawful aid that they consider incompatible with the internal market, and not those that they argue should be declared compatible by the European Commission (Sun West) (Solar Electric)

97

Is the beneficiary of unlawful state aid entitled to lodge a complaint under Article 24(2) of Regulation 2015/1589 in order to have the Commission declare it compatible with the internal market, despite the absence of a notification by the Member State concerned? This is essentially the (...)

Benoit Blottin, Frédéric Marty, Guillaume Dezobry, Alexandre Eberhardt-Le Prévost, Christine Le Bihan-Graf, Raphaël Vuitton, Francesco Martucci, Laure Rosenblieh, Marie Lamoureux Competitive issues in the energy sector

2303

This On-topic proposes to bring together the views of academics and practitioners on competition issues in the energy sector. Among the many questions raised by this vast subject, the authors have chosen to focus on themes that invite the reader to understand the extent to which the fourth (...)

Raphaël Vuitton Existing aid: The Court of Justice of the European Union considers that the amendment by the Italian authorities of an existing aid scheme for biodiesel does not constitute new aid, since that amendment consists in changing the criteria for the allocation of biodiesel quotas benefiting from a preferential rate of excise duty and does not affect the constituent elements of that scheme (Eco Fox e.a.)

77

In order to develop the biodiesel market, Italy has set up multi-year support programs. Background These programs, which are derived from various legislative acts, provide for exemptions from excise duties on specific quantities for biodiesel producers. The Commission was notified of and (...)

Raphaël Vuitton State aid notion: The General Court of the European Union confirms the European Commission’s decision that the exemption from network charges, which benefited large German electricity consumers in 2012 and 2013, constituted illegal state aid and was incompatible with the internal market (Covestro Deutschland / AZ / Infineon Technologies Dresden / Wepa Hygieneprodukt)

91

The German Energy Supply Act of 2011 organizes the system of network charges in Germany. Background In particular, it provides for the payment of a network fee by electricity consumers to network operators, the amount of which is determined by distinguishing between a general method and a (...)

Raphaël Vuitton Compatible aid: The Court of Justice of the European Union rejects the appeal against the judgment of the General Court of the European Union confirming the decision of the European Commission classifying Czech measures in favour of producers of electricity from renewable energy sources as compatible with the common market (FVE Holýšov)

107

By a decision of 28 November 2016, the Commission, without initiating the formal investigation procedure, found that the support measures implemented by the Czech authorities for producers of electricity from renewable energy sources ["RES"], and in particular photovoltaics, constituted an (...)

Raphaël Vuitton Compatible aid: The General Court of the European Union dismisses as inadmissible the action brought by French fishermen against the European Commission’s decision declaring State aid granted by France to six offshore wind farms compatible with the internal market (CAPA)

149

In order to support the construction and operation of six offshore wind farms off the Channel and Atlantic coasts, the French authorities have granted, following various calls for tenders, aid in the form of electricity purchase tariffs above market prices. In a decision of 26 July 2019, the (...)

Raphaël Vuitton SGEI: The General Court of the European Union annuls the European Commission’s decision not to raise objections to amendments made by Lithuania to aid granted for the operation of an LNG terminal in the port of Klaipėda (Achema, Achema Gas Trade)

155

While the litigation concerning the aid granted for the construction and operation of the liquefied natural gas terminal ["LNG"] of the Lithuanian port of Klaipėda seemed to reach an epilogue with a recent judgment of the Court (CJEU, 29 April 2021, Achemos Grupė and Achema v Commission, (...)

Raphaël Vuitton Environment: The General Court of the European Union dismisses the action brought by a Spanish company producing electricity by means of coal-fired power stations against the decision by which the European Commission initiated the formal investigation procedure in respect of environmental incentive measures for such power stations (Naturgy Energy Group)

85

In order to reduce sulphur oxide emissions from coal-fired power plants, the Spanish authorities introduced, in 2007, support for investments in flue gas desulphurisation units at these plants. Considering that this measure constituted a State aid scheme and having doubts as to its (...)

Raphaël Vuitton Lack of serious difficulties: The General Court of the European Union confirms the decision of the European Commission by which it considered, without opening the formal investigation procedure, that the method used by the Irish authorities to determine the property tax of fossil fuel electricity producers did not constitute State aid (Irish Wind’s Farmers’ Association)

104

In Ireland, business property tax is calculated on the basis of the annual net value [’NPV’] of property used for business purposes. This is, in essence, the annual amount of the potential rental of such property. Under a 2001 law, the NPV of all real estate has been revalued using four (...)

Raphaël Vuitton Guidelines: The European Commission presents its draft guidelines on state aid for climate, energy and the environment and invites interested parties to submit their comments

108

After launching a public consultation in November 2020 (comm. R. Vuitton, Concurrences, n° 1-2021, p. 178), the Commission is continuing the process of revising the rules governing State aid for environmental protection and energy. It has now presented draft guidelines on state aid for (...)

Raphaël Vuitton Covid-19: The General Court of the European Union annuls three European Commission decisions approving aid granted to three airlines in the context of the COVID-19 pandemic on the grounds of inadequate reasoning, but suspends the effects of those annulments until new decisions are adopted (Ryanair)

157

They are falling as if at Gravelotte! It is therefore difficult to count the appeals lodged by Ryanair against the Commission’s decisions approving aid granted by various Member States to airlines to deal with the consequences of the Covid-19 pandemic. Background At the time of writing, (...)

Raphaël Vuitton Annulment: The General Court of the European Union annuls the European Commission’s decision not to raise objections to operating aid granted to Frankfurt-Hahn airport (Deutsche Lufthansa)

90

The judgment under comment is set in the general context of the aid granted by the German authorities to Frankfurt-Hahn airport(HHN) and to Ryanair, the company using that airport, and the litigation which arose from it (Trib. EU, 12 April 2019, Deutsche Lufthansa v Commission, T-492/15, (...)

Raphaël Vuitton SGEI: The Court of Justice of the European Union dismisses the appeal against the judgment of the General Court of the European Union confirming the decision of the European Commission declaring aid granted by Lithuania for the construction of an LNG terminal in the port of Klaipėda compatible with the internal market (Achemos & Achema)

167

In order to secure its natural gas supply and decrease its dependence on the Russian supplier Gazprom, Lithuania commissioned Klaipėdos Nafta ["KN"], a company more than 70% owned by the state, to develop a plan for the construction of a liquefied natural gas terminal ["LNG"] and carry out its (...)

Raphaël Vuitton Recovery: The Court of Justice of the European Union finds that Spain has failed to fulfil its obligations by not recovering aid paid to a company for the deployment of digital terrestrial television in Castilla-La Mancha (Espagne / Commission)

101

By Decision (EU) 2016/1385 (OJ 2016 L 222, p. 52), the Commission found that the State aid granted by the Spanish authorities to Telecom Castilla-La Mancha [’TCLM’] and Cellnex in order to ensure the roll-out of DTT in the community of Castilla-La Mancha was unlawful and incompatible with the (...)

Raphaël Vuitton Existing aid: The General Court of the European Union confirms the decision of the European Commission in which it held, without initiating the formal investigation procedure, that the financial support provided by the Land of Lower Saxony to associations operating in the social field constituted, in so far as it could be classified as State aid, existing aid (Verband Deutscher Alten und Behindertenhilfe and CarePool Hannover)

82

In order to support associations working in the social field, the Land of Lower Saxony has been providing them with financial support since 1956. These associations provide services which may be of an economic nature (outpatient, hospital or mixed care) or non-economic (help and accommodation (...)

Raphaël Vuitton Advantage: The Court of Justice of the European Union censures the judgment by which the General Court of the European Union annulled the decision of the European Commission declaring as illegal and incompatible State aid the tax advantage received by a Barcelonan professional football club (Fútbol Club Barcelona)

198

After the Court of First Instance had to deal with numerous appeals concerning State aid granted to Spanish professional football clubs (Trib. EU, 26 Feb 2019, Athletic Club, T-679/16, EU:T:2019:112, Trib. EU, 26 Feb 2019, Fútbol Club Barcelona, T-865/16, EU:T:2019:113, Trib. EU, 22 Mar 2019, (...)

Raphaël Vuitton Action for damages: The General Court of the European Union dismisses the action brought by a complainant seeking compensation for the damage allegedly suffered as a result of the failure to initiate a formal investigation procedure against the measures implemented by the French authorities in favor of an investment fund (KC)

209

In 2016, the Commission received a complaint concerning alleged non-notified State aid granted by the French authorities to an investment fund managed by a private company. Following numerous exchanges with the Commission, and in particular an indication by the Commission that it considered (...)

Raphaël Vuitton State resources: The General Court of the European Union considers that the French system for financing training for driving construction machinery does not constitute State aid, due to the lack of intervention by means of State resources (Bezouaoui, HB Consultant)

121

In accordance with the obligations arising from Union law on safety and health at work, employers must provide adequate training for their workers operating construction equipment. Background To this end, in France, the Caisse nationale de l’assurance maladie des travailleurs salariés (...)

Raphaël Vuitton State resources: The Court of Justice of the European Union considers that the financial support paid, within the framework of the French increased producer responsibility system, to operators in charge of treating waste from textile products does not constitute a State aid scheme (Eco TLC)

137

In order to implement the polluter pays principle in the field of waste management, the European Union adopted Directive 2008/98/EC (OJ 2008 L 312, p. 3). This Directive establishes a system of extended producer responsibility, whereby producers of products take financial and, where (...)

Raphaël Vuitton Advantage: The General Court of the European Union dismisses the actions brought against the decision of the European Commission not to raise objections to a State measure in favour of the transport of travellers in vocational training (GVN, Hermann Albers)

103

The dispute which gave rise to the judgments under comment has its origin in the adoption in 2016 by the Land of Lower Saxony of a law on local transport ["regional law"]. One provision of this law requires municipal transport authorities ["AOT"] to guarantee sufficient public transport (...)

Raphaël Vuitton State aid scheme: The General Court of the European Union confirms, after having seen a first judgment overturned by the Court of Justice, a decision of the European Commission declaring the Spanish tax leasing scheme set up for the financing and acquisition of ships illegal and incompatible with the internal market (Spain / Commission)

253

The contentious series relating to the Spanish tax leasing scheme ("RELF"), which began in 2013, has just seen a new episode in the form of a judgment of the Court of First Instance of 23 September 2020. Before examining this judgment, it should be recalled that RELF is based on a complex (...)

Raphaël Vuitton Incompatible aid: The Court of Justice of the European Union declares the European Commission’s 2004 decision stating that the aid granted in the form of relief from social security contributions following the Erika disaster was illegal and incompatible with the common market, while it was seized of a request for interpretation of the terms and conditions for implementing this decision (Compagnie des pêches de Saint-Malo)

271

In order to alleviate the consequences of the oil slick caused by the sinking of theErika in the Bay of Biscay on 12 December 1999 and the damage caused by the storm Lothar on 27 and 28 December 1999, France adopted support measures for fishermen and fish farmers in April and July 2000. These (...)

Raphaël Vuitton State aid scheme: The Court of Justice of the European Union rejects an appeal against the order of the General Court dismissing an action against the European Commission’s decision on the Spanish aid scheme for the production of electricity from renewable energy sources (Abaco Energy)

143

In a decision of 10 November 2017, the Commission found that there were no grounds for objection to the aid scheme introduced by the Spanish authorities in 2013 for the production of electricity from renewable energy sources. The scheme was intended to replace a previous aid scheme introduced (...)

Raphaël Vuitton State aid scheme: The General Court of the European Union dismisses an action brought against a decision of the European Commission relating to the Greek aid scheme of 2014 for the production of electricity from renewable energy sources (Solar Ileias Bompaina)

111

In a decision of 10 October 2018, the Commission found that there were no grounds for objection to the Greek aid scheme introduced in 2014 for installations using renewable energy sources and high-efficiency combined heat and power. In particular, the scheme aimed at modifying the previous (...)

Raphaël Vuitton Private operator: The Court of Justice of the European Union confirms the conditions of implementation of the private operator principle by the European Commission and the review to be carried out by the judge in this regard (BTB / Duferco)

206

In the final stage of the dispute concerning the aid granted to the Belgian steel group Duferco, the Court was called upon to clarify the conditions for the implementation by the Commission of the principle of the private operator and the review which the court must carry out in that regard. (...)

Raphaël Vuitton Limitation period: The Court of Justice of the European Union regulates the application of national limitation periods in the context of recovery of interests relating to unlawful aid (Nelson Antunes da Cunha)

256

When the ineffectiveness of the procedure for the recovery of State aid, leaving much room for the procedural autonomy of the Member State concerned, is combined with the prolonged inaction of the Member State to ensure the implementation of the aid to the beneficiary, but also with the (...)

Raphaël Vuitton Failing firm: The Court of Justice of the European Union partially annuls the judgment of the General Court of the European Union which confirmed that guarantees granted to a Greek mining company constituted State aid incompatible with the internal market (Larko)

244

This is the latest episode in a long-standing dispute, and the judgment under comment is set in the same context as that which led to the Court’s judgment of 9 November 2017, Commission v. Greece (C-481/16, comm. R Vuitton, ConcurrencesNo. 1-2018, pp. 134-136.) and the judgments of the Court (...)

Raphaël Vuitton Incompatible aid: The General Court of the European Union annuls the decision of the European Commission finding that guarantees granted by the Spanish public authorities to professional football clubs in the framework of bank loans taken out in order to proceed to an increase in their capital, are State aid incompatible with the internal market (Valencia Club de Fútbol / Elche Club de Fútbol)

213

After examining cases concerning state aid granted to professional football clubs in Barcelona, Bilbao, Alicante (Trib. EU, 26 Feb. 2019, Athletic Club, Case T-679/16, EU:T:2019:112, Trib. EU, 26 Feb. 2019, Fútbol Club Barcelona, Case T-865/16, EU:T:2019:113, Trib. UE, 22 Mar. 2019, Hércules (...)

Raphaël Vuitton Admissibility: The General Court of the European Union once again dismisses as inadmissible an action for annulment brought against the European Commission decision, qualifying the rescue measures of a Portuguese bank as State aid compatible with the internal market, due to the lack of standing to act of the applicants (BPC Lux 2)

104

In order to rescue Banco Espírito Santo (BES), the Portuguese authorities have decided to submit it to a resolution procedure. This involved the transfer of the healthy assets of BES to a ’bridge bank’ and the remaining assets and liabilities to a ’hive-off vehicle’. The assets of the BES (...)

Raphaël Vuitton Notion of aid: The Court of Justice of the European Union confirms that the financing of a Dutch platform for electronic procurement does not constitute State aid, since its activities cannot be dissociated and forms part of the exercise of public powers (Aanbestedingskalender)

195

In order to facilitate the award of public contracts, the Netherlands authorities set up a public electronic platform, known as TenderNed. This contains, inter alia, a module for publishing tender notices and award decisions and a module for submitting tenders. It also makes it possible to (...)

Raphaël Vuitton Notion of aid: The Court of Justice of the European Union notes that the Spanish tax on the use of inland waters for the production of electricity is not selective and therefore does not constitute State aid (UNESA)

186

In order to ensure more efficient and environmentally friendly use, the Spanish authorities have introduced, by a law of 2012, a charge on the use of inland waters for the production of electricity, for which Spanish hydroelectric power producers are liable. This law was implemented by a (...)

Raphaël Vuitton Public consultation: The European Commission invites Member States and other stakeholders to comment on its proposal to exempt from notification aid granted through national funds for projects supported under European Union programmes managed centrally by the European Commission (General Block Exemption Regulation)

128

The Commission has launched a public consultation - closed at the time of writing this column - in order to seek the public’s opinion on a draft amendment to the General Block Exemption Regulation (OJ 2014, L 187, p. 1) to exempt from notification aid granted by national funds for projects (...)

Raphaël Vuitton Aid scheme: The General Court of the European Union confirms the Commission’s decision qualifying measures adopted by the Czech authorities in favour of producers of electricity generated from renewable energy sources as constituting a new aid scheme, implemented unlawfully, but compatible with the common market, on the basis of Article 107(3) (c) TFEU (FVE Holýšov)

156

We have already had the opportunity, in a previous column, to highlight the inventiveness of the state authorities in terms of support measures for the production of electricity from renewable energy sources (RES). This inventiveness is matched only by the diversity and complexity of the (...)

Raphaël Vuitton SGEI: The General Court of the European Union confirms the decision of the European Commission declaring the aid granted by Lithuania for the construction of an LNG terminal in the seaport of Klaipėda compatible with the internal market (Achemos, Achema)

275

Lithuania’s natural gas supply is mainly dependent on a single supplier, Gazprom, whose commercial policy is largely influenced by geopolitical interests, which often diverge from those of EU Member States. In order to secure this supply, the Lithuanian authorities have commissioned Klaipėdos (...)

Raphaël Vuitton New aid: The General Court of the European Union confirms the decision of the European Commission qualifying the investment subsidies granted to bus companies in the Île-de-France Region as constituting new aids, which are illegal but compatible with the common market (Keolis, Transdev, Région Île-de-France, Optile, Ceobus, STIF-IDF)

220

Background In order to improve the public transport offer, the Île-de-France region adopted a decision in 1994, renewing a mechanism that had existed since 1979. The purpose of the decision was to grant aid to public authorities which had concluded contracts for the operation of regular bus (...)

Raphaël Vuitton Recovery: The Court of Justice of the European Union confirms that a decision of the European Commission concerning an aid scheme named “campaign plans,” implemented by France in the fruit and vegetable sector, covers aids paid to producers of cherries, despite the peculiarities of these aids (Copebi)

143

Although the cherry season is short, this is not the case for disputes concerning State aid arising from the famous French "contingency plans". Indeed, these are - once again - in the news, thanks to the judgment under commentary concerning the recovery of aid paid to cherry producers. As we (...)

Raphaël Vuitton Selective advantage: The General Court of the European Union annuls a decision of the European Commission finding that a Spanish professional football club has benefited from a State aid, in the context of compensation awarded to it by a transactional agreement related to a dispute with a municipality (Real Madrid Club)

185

After the cases concerning State aid to the football clubs of Barcelona, Bilbao and Alicante, mentioned in the previous issue of this column (Trib. EU, 26 Feb. 2019, Athletic Club, Case T-679/16, EU:T:2019:112, Trib. UE, 26 Feb. 2019, Fútbol Club Barcelona, Case T-865/16, EU:T:2019:113, Trib. (...)

Raphaël Vuitton Compatibility: The General Court of the European Union rejects an action brought by a firm of reinsurance against a decision of the European Commission adopted in the preliminary examination phase and declaring compatible with the internal market the unlimited guarantee granted by France to a company for its natural disaster risk reinsurance business (Scor)

142

The Court of Justice of the European Union has already had occasion to approach the reinsurance activity from the point of view of the provisions on State aid. It has been so in particular in cases concerning guarantees granted by a national public institution for risks relating to foreign (...)

Raphaël Vuitton Jurisdiction: The Court of Justice of the European Union considers that a national court cannot assess whether a residence condition provided by a mechanism for the refund of dividend tax complies with Article 63(1) TFEU, where this mechanism constitutes an aid scheme (A-Fonds)

183

Does a national court have jurisdiction to assess the compatibility of a condition for the application of an aid scheme which is inseparably linked to the subject-matter of the scheme? That question, which is not new, was again referred to the Court in A-Fonds, with the particularity that the (...)

Raphaël Vuitton Existing aid: The French Administrative Supreme Court considers that the substantial increase in the proceeds of the taxes financing the aid scheme for the cinema and the audiovisual sector does not constitute a modification of existing aid which has to be notified to the European Commission (Carrefour Hypermarchés, Fnac...)

154

The judgment under comment puts an end to a dispute initiated by several companies, including Carrefour Hypermarkets and Fnac, which wanted to obtain the reimbursement of the tax on the sale and rental of videograms for private use that they had had to pay. The purpose of this tax, like the (...)

Raphaël Vuitton Tax advantage: The General Court of the European Union examines the legality of decisions of the European Commission concerning the measures in favor of Spanish professional football clubs (Athletic Club / Fútbol Club Barcelona / Hércules Club de Fútbol)

240

The situation of professional football clubs has for several years been the subject of particular attention by the Commission under the State aid rules. Therefore, in October 2012, the Commission sent a letter to all Member States to gather information on the financing of these clubs. As a (...)

Raphaël Vuitton Circular: The French Prime Minister sets out the principles of national rules on the granting of State aid in order to secure the granting of public funding for projects with economic implications and to ensure that the European legal framework is respected (Application of European competition rules on public aid to economic activities)

134

The Prime Minister’s Circular of 5 February 2019 on the application of European competition rules relating to public aid to economic activities, on the one hand, provides administrations with the information and methodology needed to understand the regulations on State aid and, on the other (...)

Raphaël Vuitton Statute of limitations: The Court of Justice of the European Union rules that the expiration of the 10-year limitation period for the recovery of unlawful State aid does not deprive of any basis an action for damages brought against the Member State which granted them (Fallimento Traghetti del Mediterraneo)

266

The aid granted by the Italian authorities to the Tirrenia shipping group is regularly brought before the Italian and European courts. This veritable judicial saga is akin, for the Union judge, to the plaster of Captain Haddock in the "Tournesol case" (see, in particular, Court judgments of 9 (...)

Raphaël Vuitton Existing aid: The Court of Justice of the European Union considers that the amendment of the German public broadcasting financing scheme does not constitute a modification of an existing aid (Rittinger e.a.)

133

Like many Member States, German public broadcasting is financed by advertising and other commercial revenues, but also, mainly, by tax resources. Initially, in Germany, the latter came from an audiovisual licence fee payable for the possession of audiovisual reception equipment ("one (...)

Raphaël Vuitton Incompatibility: The General Court of the European Union annuls a decision of the European Commission concerning the aid for the financing of milk quality tests in Bavaria, because of a breach of the right of the parties concerned to be involved in the administrative procedure (Freistaat Bayern ; Interessengemeinschaft privater Milchverarbeiter Bayerns e.a.)

84

In Germany, milk quality is traditionally assured by independent quality tests. In Bavaria, these tests are financed by resources from a levy imposed on milk purchasers by a Federal Milk and Fat Law (hereinafter ’the MFG’) and from the general budget of that Land. Background On 17 July (...)

Raphaël Vuitton Service of general economic interest: The General Court of the European Union dismisses actions brought against a decision declaring compatible with Article 106 (2) TFEU various measures granted in the field of social housing, such as amended by commitments taken by the Dutch authorities (Stichting Woonlinie e.a.)

227

The judicial saga of the Dutch housing companies (woningcorporaties or wocos) has just been taken a step further by a judgment of the Court of First Instance of 15 November, ruling on actions brought by those non-profit-making bodies whose task is, inter alia, to acquire, build and rent out (...)

Raphaël Vuitton Recovery: The Court of Justice of the European Union condemns Greece due to its delay in recovering incompatible aids granted to a company owning a civilian and military shipyard (Ellinika Nafpigeia)

155

Very classical in principle, the judgment under comment is in line with previous "failure on failure" judgments concerning the non-performance of a State aid recovery obligation (see, for example, recently, CJEU, 17 Sept. 2015, Commission v. Italy, case C-367/14, EU:C:2015:611, comm. R. (...)

Raphaël Vuitton Existing aid: The French Administrative Supreme Court considers that State liability cannot be incurred due to the implementation of an existing aid for the period prior to the Commission’s decision declaring its incompatibility with the common market (Ryanair)

483

The question of the liability of the State for the granting of State aid is currently the subject of numerous developments in the case law of the French administrative courts. For example, having established that the recovery, even if late, of unlawful aid cannot engage the State’s (...)

Raphaël Vuitton Proceeds of the tax: The Court of Justice of the European Union considers that the increase of the proceeds of a tax, which is financing authorized aid schemes, compared with the forecasts notified to the European Commission, constitutes a modification of an existing aid, unless that increase is below the 20% threshold provided for in the second sentence of Article 4 (1) of Regulation No 794/2004 (Carrefour Hypermarkets)

254

Does a substantial increase in the revenue from a tax financing an aid scheme authorised by the Commission compared with the forecasts provided when the scheme was notified constitute ’new aid’? That is, in essence, the question which the Court was called upon to answer in the context of (...)

Raphaël Vuitton Service of general economic interest: The Court of Justice of the European Union rejects an application for annulment of a European Commission’s decision in the case for or the deployment of digital terrestrial television in Castilla-La Mancha in Spain (Spain / Commission)

170

A new, and perhaps final, episode in the litigation concerning the Spanish measures to finance the deployment of digital terrestrial television has just come to light, in so far as those measures concern the Community of Castile-La Mancha. It will be recalled that the actions brought by Spain, (...)

Raphaël Vuitton Advantage: The General Court of the European Union rejects actions lodged by beneficiaries of aids granted by Belgium to the steel sector (Duferco Long Products ; BTB Investments, Duferco Participations)

146

Following the judgment of 28 November 2017, Steel Invest & Finance (Case T-254/16, EU:T:2017:842, comm. R. Vuitton, ConcurrencesNo 1-2018, pp. 141-143.), the aid granted to the Belgian steel group Duferco gave rise to two new decisions of the Court of First Instance, the main lessons of (...)

Raphaël Vuitton Spanish tax lease scheme: The Court of Justice of the European Union annuls, in many respects, the judgment of the General Court of the European Union annulling the European Commission’s decision qualifying as illegal and incompatible with the internal market the Spanish tax lease scheme set up for the financing and the acquisition of ships (Commission / Spain)

219

Issued as a result of the cases concerning the regime of participation of companies taxable in Spain in a foreign company (Trib. EU, 7 Nov. 2014, Autogrill España, case T-219/10, EU:T:2014:939 and Banco Santander and Santusa, case T-399/11, EU:T:2014:938, comm. J. Derenne, ConcurrencesNo. (...)

Raphaël Vuitton Best practices: The European Commission adopts a new code of best practices for the conduct of State aid control procedures (Code of best practices for the conduct of State aid control procedures)

155

On 16 July 2018, the Commission adopted, by means of a Communication, a new Code of Best Practices for the conduct of State aid control procedures (OJEU 2018, C 253, p. 14), which is part of the modernisation programme implemented over the last few years. This Code replaces the previous one, (...)

Raphaël Vuitton Seaports: The General Court of the European Union confirms the decision of the European Commission declaring the exemption from corporation income tax granted to six Dutch seaports incompatible with the internal market and ordering the Netherlands to abolish it (Groningen Seaports)

175

As an essential infrastructure for the development of international trade, seaports are the subject of long-standing and substantial support from the Member States. In order to ensure fair competition between all EU ports and to clarify their situation under the State aid rules, the Commission (...)

Raphaël Vuitton Authorized aid regime: The Court of Justice of the European Union confirms that an authorized State aid regime by the Commission does not compel a Member State to grant an aid to an undertaking on the basis of this regime when the undertaking does not comply with other conditions provided in national law (Yanchev)

108

In a case brought by a Bulgarian court, in a dispute between the tax authorities and a farmer, the Court recalled that, while Article 108(3) TFEU requires Member States to notify the Commission of their plans for State aid before they are put into effect, it does not, on the other hand, (...)

Raphaël Vuitton State liability: The French Administrative Supreme Court rejects the appeal of an undertaking challenging the State’s liability for the recovery of unlawful aid (MJA)

177

The saga of aid to the Coopérative d’exportation du livre français (CELF) has just been taken a step further. The Conseil d’État has been called upon to rule on an appeal concerning a liability action brought by the liquidator of CELF against the French State, which sought compensation for (...)

Raphaël Vuitton SGEI: The Court of Justice of the European Union confirms that subsidies granted to Spanish operators for the deployment of digital terrestrial television in the community of Castilla-La Mancha constitutes a State aid incompatible with the internal market (Cellnex Telecom, Telecom Castilla-La Mancha)

300

The present case is set against the background, now well known because of the ensuing litigation, of the measures to finance the roll-out of digital terrestrial television, which were adopted by Spain between 2005 and 2009. It will therefore be recalled that in 2010 the Commission opened two (...)

Raphaël Vuitton Preliminary examination: The General Court of the European Union partially annuls the European Commission’s decision finding, at the end of a formal investigation procedure, that measures granted to a shipping company using a port in Gran Canaria did not constitute State aid (Naviera Armas)

191

While not regarded as a model of brevity, the judgment in the Naviera Armas case provides interesting insights into the determination of the existence of serious difficulties in the preliminary phase of the examination of an aid measure and the Commission’s obligation of diligent examination (...)

Raphaël Vuitton Interest in bringing an action: The General Court of the European Union rejects appeals against decisions adopted by the European Commission in the context of State aids granted to a Greek mining company subject to a disposal plan (Larko)

219

The context of the judgments under comment is the same as that which led to the Court’s judgmentof 9 November 2017, Commission v. Greece (Case C-481/16).which was the subject of a comment in the previous issue of the magazine Concurrences (comm. R Vuitton, Concurrences No. 1-2018, pp. (...)

Raphaël Vuitton Prescription: The General Court of the European Union confirms the European Commission’s decision, adopted following the annulment of a first decision, considering that certain measures implemented in favour of the manager of Charleroi airport were illegal and incompatible with the internal market (BSCA)

188

Almost ten years after the first judgment concerning aid granted in the context of Charleroi airport (Trib. EU, 17 Dec. 2008, Ryanair, Case T-196/04, comm. J. Derenne, Concurrences n° 1-2009, pp. 157-158), the Court of First Instance has just issued a new decision, this time confirming the (...)

Raphaël Vuitton Failure to recover: The Court of justice of the European Union finds that Greece has failed to fulfill its obligations by failing to recover the aid granted to a company in difficulty whose bankruptcy proceedings have been suspended by Greek authorities (Commission/Greece)

185

While this case serves to illustrate the classical case-law according to which the difficulties experienced by an undertaking do not affect the obligation to recover aid from it, it highlights once again the slowness with which the Commission can establish the failure to comply with this (...)

Raphaël Vuitton Subsidized loan: The General Court of the European Union confirms that the subsidized loan granted by Belgian authorities to the Luxembourg holding of a steel group active in Belgium constitutes a State aid incompatible with the common market (Steel Invest & Finance)

163

The Duferco Group produces and sells steel in some 50 countries around the world. Established in Belgium in 1997, it acquired various steel sites until 2002. Following this wave of acquisitions, it had three subsidiaries in Belgium. In 2006, the Duferco Group entered into a strategic (...)

Raphaël Vuitton Takeover: The French Supreme Administrative Court applies a Court of justice of the European Union’s caselaw on State aid recovery when the beneficiary undertaking was subject to a takeover but has retained its legal personality and has continued to carry out, for its own account, the activities subsidized by the State aid (Railtech International)

196

Disputes relating to the unlawful aid scheme arising from Article 44 septies of the General Tax Code remain lively before the French courts (for earlier examples, see J. DerenneConcurrences, , No 3-2013, p. 134). After the Conseil d’État recently dismissed an appeal by a company challenging (...)

Raphaël Vuitton Obligation of recovery: The Court of Justice of the European Union considers that the decision of the European Commission approving the privatization procedure of a Greek mining company has no impact on the obligation to recover State aid paid to that undertaking, resulting from another decision of the European Commission (Larko)

161

Are the difficulties involved in implementing an asset sale of a company, approved by the Commission under the State aid rules, likely to postpone the obligation to recover aid previously granted to that company arising from another Commission decision? That is essentially the question which (...)

Raphaël Vuitton Public service delegation: The French Administrative Supreme Court confirms the cancellation of public service delegation for the maritime transport service between Corsica and the continent for the period 2014-2023, on the grounds that it constitutes an illegal State aid, while the Bastia Administrative Court compensates delegate competitor for the loss of earnings relating to the period 2007-2013 (CMN ; Corsica Ferries)

820

During 2017, the litigation relating to State aid granted in the context of the public service delegation (PSD) for maritime services to Corsica gave rise to numerous decisions of the European courts, and in particular of the Court of First Instance (Trib. UE, 1 March 2017, France v (...)

Raphaël Vuitton Aid granted by a member state or through state resources: The Court of Justice of the European Union considers that the Polish Energy Law, which imposes an obligation on electricity companies selling electricity to end-users to purchase electricity produced by cogeneration, does not constitute an intervention by the State or through State resources (ENEA)

345

In order to ensure the sustainable development of energy supply or to reduce the cost to their economies, Member States have been adopting specific legislation for several years. The inventiveness of the State authorities is matched in this respect only by the diversity and complexity of the (...)

Raphaël Vuitton Annulment: The General Court of the European Union specifies the European Commission’s obligations following an annulment decision in State Aid Law (France c/ Commission ; SNCM c/ Commission)

217

The disappearance of its principal actor - by judicial liquidation - does not prevent the judicial saga of the State aid granted to the Société nationale Corse Méditerranée (SNCM) from continuing. The epilogue nevertheless appears to be drawing ever closer. Background The dispute which led (...)

Raphaël Vuitton Recovery: The French Supreme Administrative Court dismisses an undertaking’s appeal challenging the State’s liability for the unlawful granting of an aid of which it has been the beneficiary and for the late recovery of this aid (Le Muselet Valentin)

513

Can a Member State be held liable for the unlawful grant of State aid and its late recovery by the recipient of that aid? That is the question which the French Conseil d’État was called upon to decide in the context of an appeal brought by the company Le Muselet Valentin against a judgment of (...)

Raphaël Vuitton Dation-in-payment: The Court of Justice of the European Union considers that the decision of a company of which a Member State is the main shareholder to accept a dation in payment of an asset which is the property of a company of which a Member State is the only shareholder is liable, under certain circumstances, to constitute State aid within the meaning of Article 107 TFEU (Fondul Proprietatea)

264

As a legal mechanism allowing the payment of a debt by the assignment to the creditor of the ownership of an asset belonging to the debtor, the dation in payment has, until now, not been exhaustively apprehended from the point of view of State aid provisions (see nevertheless Trib. EU, 23 Nov. (...)

Raphaël Vuitton Circular: The French Prime Minister publishes a circular presenting the EU provisions on State aids and setting out the principles of national policy on this matter (Public aid for economic activities)

257

While European policy on State aid has been undergoing a profound renewal and extensive modernisation in recent years, the French guidelines in this area were still based on the Prime Minister’s circular of 26 January 2006 on the application at local level of the Community competition rules on (...)

Raphaël Vuitton Proposal of appropriate measures: The Court of Justice of the European Union clarifies the scope of the judicial review of Commission’s decisions recording a Member State’ acceptance of a proposition of appropriate measures concerning an existing aid (Stichting Woonlinie, Stichting Woonpunt)

163

Winingcorporaties (hereinafter referred to as ’wocos’) are Dutch non-profit organisations whose tasks include the purchase, construction and rental of housing for disadvantaged people. In 2002, after the Dutch authorities notified the aid scheme for wocos to the Commission, the Commission (...)

Raphaël Vuitton Maritime services: The General Court of the European Union confirms the Commission’s decision relating to an aid granted to a carrier for certain ferry services between Marseille and Corsica (SNCM)

295

Despite the disappearance of its main player - the Société nationale Corse Méditerranée (SNCM) - the judicial saga of the dispute concerning State aid for the maritime link between France and Corsica, which has been on the registers of the Court of First Instance and the Court of Justice for (...)

Raphaël Vuitton Media pluralism: The French Supreme Administrative Court annuls a decree extending to weekly publications support measures for press pluralism, on the grounds that it establishes illegal state aid (Valmonde)

183

Anxious to preserve press pluralism, the French authorities introduced, by Decree No 86-616 of 12 March 1986 (JORF 1986, p. 4702, hereinafter the ’1986 Decree’), an aid scheme for national daily political and general information newspapers with low advertising resources. Only national daily (...)

Raphaël Vuitton Recovery : The Court of Justice of the European Union confirms that the recovery of a State aid entails the restitution of the advantage procured by the aid for the recipient, not the restitution of any economic benefit the recipient may have enjoyed as a result of exploiting the advantage (Aer Lingus et Ryanair)

208

In a judgment concerning the Irish Air Transport Tax ("ATT"), the Court provided important clarifications on the recovery of state aid, in particular whether the Commission must, in determining the amount of aid to be recovered, take into account the fact that the beneficiaries passed on the (...)

Raphaël Vuitton Service of general economic interest: The General Court of the European Union confirms the European Commission’s decision declaring that the grant to operators for the deployment of digital terrestrial television in the Spanish region of Castilla-La Mancha constitutes a State aid, incompatible with the internal market (Albertis Telecom Terrestre et Telecom Castilla-La Mancha)

178

In order to enable the switchover from analogue to digital broadcasting, the Spanish authorities adopted measures between 2005 and 2009 to finance the roll-out of digital terrestrial television (DTT). Background In 2009, the Commission received a complaint from a European satellite (...)

Raphaël Vuitton Modification of an existing aid scheme: The Court of Justice of the European Union dismisses the appeal against the General Court of the European Union’s judgment confirming that the Spanish public television’s aid scheme was compatible with the internal market (DTS Distribuidora de Televisión Digital)

167

Until 2009, RTVE, Spain’s public service broadcaster, received mixed funding based on revenues from its commercial activities, including the sale of advertising space, on the one hand, and compensation from the Spanish State for the fulfilment of its public service mission, on the other. This (...)

Raphaël Vuitton Economic advantage: The Court of Justice of the European Union confirms the General Court of the European Union’s decision rejecting the application of the French historic telecom operator against the European Commission’s decision declaring that the reform of the arrangements for financing the pensions of civil servants working for that operator constitutes State aid compatible with the internal market on certain conditions (Orange)

248

While within the Tribunal there are two divergent approaches to the assessment of the concept of "advantage" in the context of ad hoc individual measures (see Concurrences n°4-2016, pp. 150-153), the Court was given the opportunity to clarify the debate in the context of the appeal brought by (...)

Raphaël Vuitton Decision not to raise objections: The General Court of the European Union confirms the European Commission’s decision, adopted at the conclusion of the formal investigation procedure, declaring that the Danish State aid scheme in favour of the written press was compatible with the internal market (Søndagsavisen)

265

Maintaining media pluralism and the quality of media content is an essential element for a vibrant democracy and is the subject of public support in most Member States. In view of their objectives, such support is generally viewed favourably by the Commission in the context of its State aid (...)

Raphaël Vuitton Stranded costs: The Court of Justice of the European Union considers that changes in the ownership structures of electricity producing companies should be taken into account when calculating the amount of compensation for stranded costs to be granted (PGE)

271

In the context of the opening up of the electricity sector to competition, initially brought about by Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (OJEC 1996, L 27, p. 20), certain Member (...)

Raphaël Vuitton Selective advantage : The General Court of the European Union sets aside the Commission decision ordering Germany to recover from a postal operator part of the subsidies paid in respect of former civil servant postal workers’ pensions (Allemagne / Commission)

150

The saga of the State aid granted to Deutsche Post has just taken a new turn, with a judgment of the Court of First Instance once again annulling a Commission decision on the matter. Since the opening of the first formal investigation procedure into this aid in 1999, no fewer than ten cases (...)

Raphaël Vuitton Selective advantage: The Court of Justice of the European Union confirms a judgment whereby the General Court dismissed the action of the Belgian State against the decision of the Commission declaring partly compatible and partly incompatible with the internal market the funding of tests of bovine spongiform encephalopathy (Belgium / Commission)

206

From 1 January 2001 to 31 December 2005, the Belgian authorities participated in the financing of tests for bovine spongiform encephalopathy (BSE), made compulsory by Regulation No 999/2001 of 29 May 2001 laying down rules for the prevention, control and eradication of certain transmissible (...)

Raphaël Vuitton Restructuring aid: The General Court of the European Union declares inadmissible an action brought by a manufacturer of household appliances against a decision of the Commission, following the cancellation, in the context of an action formed by this manufacturer, of a previous decision concerning the same aid (Whirlpool Europe)

143

In order to tackle the difficulties encountered in the 2000s by the household appliances manufacturer FagorBrandt, the French subsidiary of the FagorBrandt group, the French authorities planned to grant it restructuring aid of EUR 31 million in 2007. Following the notification of this aid (...)

Raphaël Vuitton Decision finding no State aid: The Court of Justice of the European Union rejects an appeal against a judgment whereby the General Court of the European Union dismissed an action for the annulment of a decision of the Commission declaring that the Spanish scheme of early depreciation of certain assets acquired through financial leasing does not constitute State aid within the meaning of Article 107(1) TFEU (Netherlands Maritime Technology Association)

141

The Spanish tax leasing scheme (hereinafter ’RELF’), already referred to in the previous issue of this newsletter (Competition No 2-2016, pp. 153-156, pp. 153-156), has been the subject of a number of studies.), has once again been at the centre of a decision by a court of the Union. It (...)

Raphaël Vuitton Public service obligation: The General Court of the European Union confirms the Commission’s decision categorizing a retroactive compensation granted by the Italian authorities to a company delivering inter-regional bus transport services as State aid incompatible with the internal market (Simet / Commission)

134

Simet is an Italian company which provides passenger road transport services, including a network of regular interregional coach services between Calabria and other regions of Italy. These interregional routes were operated under annual concessions granted by the Italian authorities on the (...)

Raphaël Vuitton Service of general economic interest: The Court of Justice of the European Union rejects an appeal against a judgment upholding the validity of the Commission’s decision declaring illegal and incompatible with the internal market an aid paid by Germany to a public entity providing disposal services of animal carcasses and slaughterhouse waste (Germany / Commission)

508

Under Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules concerning animal by-products and derived products not intended for human consumption (OJ 2009 L 300, p. 1), animal by-products are divided into three categories (...)

Raphaël Vuitton Selective advantage: The General Court of the European Union annuls the Commission’s decision qualifying as illegal and incompatible with the internal market the Spanish tax lease scheme set up for the financing and the acquisition of ships, in particular because of the lack of selectivity of this scheme (Spain / Commission and Lico leasing / Commission)

184

Following the cases concerning the scheme for the participation of undertakings taxable in Spain in a foreign company (Autogrill Españav Commission(Case T-219/10, EU:T:2014:939 and Banco Santander and Santusa v Commission, T-399/11, EU:T:2014:938), it is once again a Spanish tax scheme, in (...)

Raphaël Vuitton Digital terrestrial television network: The General Court of the European Union confirms the Commission’s decision qualifying as State aid incompatible with the internal market the financing granted to operators for the deployment, maintenance and operation of the digital terrestrial television network (Espagne, Comunidades Autónomas del País Vasco et Itelazpi, de Galicia, de Cataluña et CTTI, Navarra de Servicios y Tecnologías, Abertis Telecom et Retevisión I)

166

Because of the advantages of digital broadcasting over analogue broadcasting, in terms of quality and service, the switchover to digital broadcasting was encouraged by the Commission as early as 2002 and gradually implemented by Member States. It is in this context that the Spanish authorities (...)

Raphaël Vuitton Postal money order service: The Court of Justice of the European Union examines whether the grant by a Member State of an exclusive right to pay retirement pensions by money order to an undertaking falls under the scope of Article 107 (1) TFEU (Easy Pay)

183

In Bulgaria, a decree of 10 March 2000 provides that retirement pensions are paid to their beneficiaries by the National Social Security Institute through the country’s banks and the post offices of the national postal operator, Balgarski poshti, whose capital is 100% owned by the Bulgarian (...)

Raphaël Vuitton Failure : The Court of Justice of the European Union orders Italy to pay a lump sum of €30 million and a fine of €12 million per semester of delay due to its delay in recovering aid incompatible with the common market granted between 1995 and 1997 to certain firms in the island region of Venice and Chioggia (Commission / Italy)

150

Between 1995 and 1997 the Italian authorities granted reductions or exemptions from social security contributions to firms in the island territories of Venice and Chioggia. On 25 November 1999 the Commission, by Decision 2000/394/EC (OJ 2000 L 150, p. 50), considered that these measures (...)

Raphaël Vuitton State aid recovery : The Court of Justice of the European Union considers that the EU law does not preclude Italian legislation which, by reference to a regulation not in force at the time, provides for the application of compound interest to the recovery of State aid (A2A)

154

More than 13 years after its adoption, the Commission’s decision on Italian local public services has again given rise to a Court ruling. In this latest judicial episode, the modalities of implementing the recovery of the aid in question were at the centre of the debates. It should be recalled (...)

Raphaël Vuitton Concept of State aid : The Court of Justice of the European Union considers that a rule of national law which prohibits an emanation of the State from selling agricultural land to the highest bidder in a public call for tenders, where the competent local authority considers that the highest bid is grossly disproportionate to the estimated value of that land, cannot be classified as State aid (BVVG)

146

In order to combat land speculation involving the sale of agricultural and forestry land in the context of the privatisation of State-owned land and buildings in the former East German Länder, German legislation makes the transfer of ownership of land subject to authorisation, subject to (...)

Raphaël Vuitton Legislation: The Council of the European Union adops two regulation codifying last modifications to regulation n°659/1999 and regulation 994/98 on the application of Articles 107 and 108 TFEU to certain categories of horizontal State aid

214

Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU (OJ 1999 L 83, p. 1) and Regulation No 994/98 on the application of Articles 107 and 108 TFEU to certain categories of horizontal State aid (OJ 1998 L 142, p. 1) have been substantially amended several (...)

Raphaël Vuitton Failure : The Court of Justice of the European Union considers that France has failed to fulfill its obligations by failing to recover aid granted to a carrier for certain ferry services between Marseille and Corsica (Commission / France)

153

A veritable sea serpent, the judicial saga of the litigation concerning State aid granted to the Société nationale Corse Méditerranée (SNCM), which has been on the registers of the Court of First Instance and the Court of Justice for a number of years, has just experienced a new (and final?) (...)

Raphaël Vuitton Illegal aid : The General Court of the European Union confirms that the time an aid is deemed to be granted is determined by the adoption of the legally binding act by which the competent national authority undertake to grant the aid and not by its payment by that authority (Diputación Foral de Bizkaia)

221

In two agreements, concluded in 2006, Bizkailur, a public company owned by the Vizcaya Provincial Council, and Habidite, a company owned by the Vizcaya Provincial Council, agreed on the terms and conditions for the latter to set up a plant for the manufacture of prefabricated building modules (...)

Raphaël Vuitton Restructuring aid : The General Court of the European Union confirms the validity of the Commission decision declaring compatible with the internal market the restructuring aid granted by Austria to an airline company (Niki Luftfahrt)

235

In view of the financial difficulties affecting the national airline Austrian Airlines, the Austrian authorities decided in 2008 to privatise that company by selling their majority shareholding. Following a call for expressions of interest, the offer to purchase Lufthansa was accepted by these (...)

Raphaël Vuitton Existing aid: The General Court of the European Union dismisses the action brought by companies active in the social housing sector against the decision in which the Commission qualified as State aids the funding the companies recieved and accepted the State measure proposals under article 19 of Regulation n° 659/1999 (Woonlinie)

211

The two orders adopted by the Court of First Instance on 12 May 2015 in the Woonlinie and Woonput cases constitute the final episode in the dispute concerning the aid scheme for ’wocos’, Netherlands non-profit-making organisations operating in the field of social housing. By a decision of (...)

Raphaël Vuitton Privileges : The Court of Justice of the European Union considers that privileges, in accordance with which a bank has the right unilaterally to register a mortgage over immovable property, the right to seek enforcement with an ordinary private document and the right to be exempted from the payment of fees and duties connected with that registration, may fall within the scope of application of article 107 (1) TFEU (Trapeza Eurobank Ergasias)

339

In order to compensate for the high risks involved in granting credits in the agricultural sector, the Greek bank Agrotiki Trapeza tis Ellados (ATE), which was set up by a law of 1929, was granted special privileges by that law. Those privileges include, first, the right to register a mortgage (...)

Raphaël Vuitton Concept of State aid : The General Court of the European Union dismisses the appeal of Belgium against the decision of the Commission declaring partly compatible and partly incompatible with the internal market the funding of tests of bovine spongiform encephalopathy (Belgium/Commission)

217

Trib. EU, 25 March 2015, Belgium v. Commission, Case T-538/11, EU:T:2015:188 In order to deal with the mad cow disease crisis, Regulation No 999/2001 made testing for, inter alia, bovine spongiform encephalopathy (BSE) compulsory. From 1 January 2001 to 31 December 2005, the Belgian (...)

Raphaël Vuitton Tax ruling : Luxembourg withdraws its appeal against the Commission’s decision involving an injunction to provide the list of the "tax rulings" granted between 2010 and 2012 (Luxembourg/Commission)

298

Trib. EU, 12 Feb. 2015, Luxembourg v Commission, Case T-258/14, EU:T:2015:22 As part of an investigation into tax rulings practices, the Commission, by decision of 24 March 2014, required Luxembourg, under Article 10(3) of Regulation No 659/1999, to provide it with a complete list of tax (...)

Raphaël Vuitton Failure of a Member State : The Court of Justice of the European Union holds that France has not taken all the necessary measures to recover aid granted illegally in the context of ‘contingency plans’ to French fruit and vegetable producers (Commission/France)

286

CJEU, 12 Feb 2015, Commission v. France, Case C-37/14, EU:C:2015:90 Between 1992 and 2002, France granted aid to French fruit and vegetable producers under ’contingency plans’, which were designed to prevent or, in the event of a crisis, mitigate the effects of temporary surpluses of supply (...)

Raphaël Vuitton Formal procedure of investigation : The General Court of the European Union considers that a decision to open the formal procedure of investigation in respect of a measure which is no longer in the course of implementation does not constitute a challengeable act (Alro, Alpiq)

260

Trib. EU, 16 Oct. 2014, Alro v. Commission, Case T-517/12, EU:T:2014:890, and Alpiq RomIndustries and Alpiq RomEnergie v Commission, Case T-129/13, EU:T:2014:895 In deciding on the actions brought against the Commission’s decision by the producer and traders in question, the Court of First (...)

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