Phedon Nicolaides

Transactions at Market Rates Can still Confer an Advantage that Constitutes State aid (PART II)* Introduction When public authorities buy goods and services for themselves, they have to pay a market price, otherwise they confer an abnormal advantage to the sellers. On 14 June 2023, the (...)

Regulatory Measures Are not State aid & Trade Unions Are not “Interested Party”* State resources On 8 June 2023, the Court of Justice clarified, by its judgment in case C-50/21, Prestige and Limousine SL, that purely regulatory measures may confer and advantage without, however, (...)

Regulatory Measures Are not State aid & Trade Unions Are not “Interested Party”* Interested party On 7 June 2023, the General Court delivered its judgment in case T-322/22, Unsa Énergie v European Commission. Unsa Énergie, a trade union representing employees of Électricité de France (...)

How the Infringement of Non-State aid Rules Can Affect the Compatibility of State aid* Introduction It is now well-established that if a State aid measure is inherently or indissolubly linked to a an infringement of EU law outside the field of State aid it cannot be found to be compatible (...)

The Temporary Framework Allows Member States to Grant Aid only to SMEs* Introduction Although discrimination is in general prohibited in the EU, the fact remains that in the field of State aid Member States may grant State aid only to certain companies and may also decide how much aid to (...)

Introduction Ryanair has challenged many Commission decisions authorising State aid for its rivals. In 2021 and 2022, the General Court delivered 12 judgments concerning covid-19-related aid granted to other airlines. Of those 12 judgments, Ryanair temporarily won only three. Its wins were (...)

Introduction On the same day that the General Court ruled on the recapitalisation of SAS, it also ruled on the recapitalisation of Lufthansa in case T-34/21, Ryanair v European Commission.1 In the latter case, Ryanair sought the annulment of Commission decision SA.57153 of June 2020 by which (...)

Update of Commission Guiding Templates on Funding by the Recovery and Resilience Facility*Introduction In December 2020, the European Commission published “templates” to help Member States in the design of their plans that were to be financed by the Recovery and Resilience Facility [RRF]. (...)

Introduction Member States are allowed to grant state to compensate undertakings for damage they suffer as a result of a natural disaster or exceptional occurrence. But, it is not always easy or possible to disentangle the damage caused by such an unforeseen event from losses caused by (...)

Introduction Selectivity is a tricky issue. Even a measure that appears not to favour or exclude any undertaking may in practice prove to be selective if its effects favour certain undertakings over others that are in a comparable situation. In order to determine whether they are comparable (...)

Introduction On 2 February 2023, the Court of justice, in case C649/20 P, Spain and Others v European Commission, clarified the extent to which public authorities can implement general measures without in practice favouring any undertaking. The exercise of administrative discretion can turn (...)

Introduction Investors in banks that failed or were restructured as a result of the financial crisis that broke out in 2008 have tried many times and have used many arguments to support their claims for compensation. None of them has so far succeeded before EU courts to prove that the (...)

Tax Advantages and Competitive Bidding* Introduction Award of contracts or sale of state assets through competitive bidding procedures or tenders are presumed to result in a market prices and to confer no advantage to the winner in the meaning of Article 107(1) TFEU. However, on 25 (...)

Introduction On 12 January 2023, the Court of Justice delivered its judgment in joined cases C-702/20, DOBELES HES and C-17/21, Sabiedrisko pakalpojumu regulēšanas komisija. A Latvian court requested the Court of Justice to provide a preliminary ruling on the interpretation of Article (...)

Introduction The EU Green Deal and the Climate, Environmental Protection and Energy Aid Guidelines [CEEAG] allow Member States to grant more aid, in diversity and amounts, to incentivise companies to invest in greener technologies and energy. However, when multiple Member States grant aid (...)

Introduction Perhaps the most important aspect of the compatibility of State aid with the internal market is the presence of incentive effect. That is, the aid is capable of changing the behaviour of the recipient. If it does not, then public money is wasted because it has no effect on what (...)

Introduction As part of the EU’s Green Deal and the transition to a greener and most sustainable economy, the European Commission’s guidelines on State aid for climate, environmental protection and energy [CEEAG] also allow public support for the construction of energy infrastructures. In a (...)

Charging Infrastructure for Electric Vehicles* Introduction As part of the EU’s Green Deal and the transition to a greener and most sustainable economy, the European Commission’s guidelines on State aid for climate, environmental protection and energy [CEEAG] also allow public support for (...)

Introduction It is an established principle in the case law that the Commission may not authorise State aid that infringes other provisions of EU law, both primary and secondary. Now consider the following case. A Member State notifies to the Commission regional investment aid to support the (...)

A public authority may act as a market operator and acquire services through a private third party without conferring an advantage to the provider of those services. Introduction When a public authority buys a service and pays the market price it does not confer an advantage to the seller (...)

Introduction The two most difficult issues in imposing a public service obligation on a providers of a service of general economic interest is, first, the correct definition of the obligation and, second, the correct calculation of the amount of compensation that covers only the net extra (...)

In order to detect State aid in a state guarantee, it is necessary to carry out a search to identify the market rate, if it exists. There is no general presumption that an undertaking in difficulty cannot obtain a guarantee from the market. It is necessary to consider the risk of default. (...)

Introduction On 9 November 2022, the General Court followed its previous judgments in cases concerning compensation for damage caused by the covid-19 pandemic to rule, in case T-111/21, Ryanair v European Commission, that Member States were free to choose to whom to grant State aid. (...)

The arm’s length principle is not an autonomous principle that can be applied to any advance tax ruling. It must be provided in the national tax system. Furthermore, the arm’s length principle must be applied, if it exists in the national tax system, in the form that is defined by that tax (...)

Article 107(1) of the Treaty on the Functioning of the European Union [TFEU] declares State aid granted by Member States to be incompatible with the internal market. This principle of incompatibility is not absolute. Under certain conditions, State aid may be exempted from the prohibition of Article 107(1) TFEU. Article 108(3) TFEU requires Member States to inform the European Commission in advance of their plans to grant State aid and the Commission assesses their compatibility with the internal market by examining whether they conform with the conditions for exemption. The Commission is the principal enforcer of the State aid provisions of the Treaty. The supervision carried out by the Commission is supplemented by national courts which also play an important role in the enforcement of State aid rules. They are empowered to apply the prohibition of Article 107(1) TFEU and to take all appropriate action to remedy infringement of Article 108(3) TFEU. Competitors of recipients of State aid that has not been notified to and approved by the Commission can resort to national courts to seek enforcement of the notification obligation imposed by Article 108(3) TFEU on Member States. This “private enforcement” not only supports the “public enforcement” of State aid rules by the Commission, but it also strengthens it by broadening the remedies afforded to competitors of recipients of unlawful aid. For the purposes of this article, “private enforcement” means the initiation of proceedings before national courts for the purpose of seeking compliance with State aid rules. In practice, such proceedings are initiated by competitors of aid recipients. They petition national courts in three separate situations: i) when State aid is granted without prior notification to the European Commission; ii) when State aid that has been found by the Commission to be incompatible with the internal market is not fully recovered as ordered by the Commission; and iii) when they seek compensation for damages caused by unlawful aid.

For aid to be declared compatible with the internal market, all of the formal and substantive provisions of the relevant guidelines must be satisfied. State aid is granted the moment the right to a selective advantage is conferred, even if the actual benefit materialises at a future point in (...)

A public measure of purely local character and which does not induce cross-border movement of investors or clients is unlikely to affect trade between Member States. Introduction It is rare to find a judgment that confirms that a particular public measure is not liable to affect trade (...)

Selectivity of Regional Schemes* Introduction Article 107(3)(a) areas and the outermost regions of the EU [defined in Article 349 TFEU] are more favourably treated under State aid rules. But they still have to comply with the terms of Commission authorising decisions. In case regional (...)

A research organisation is not required to reinvest any revenue it may generate into its non-economic activities. The fact that the shareholders of a research entity are profit seeking has no decisive impact on its classification as a research organisation. Introduction As governments (...)

Introduction Whenever a bank seeks State aid, it must be considered as “failing or likely to fail”. A failing bank must be liquidated or resolved. Resolution means that the critical functions of the bank are preserved while the rest are wound down. Critical functions are those that impact (...)

Recovery of Incompatible Aid and the Application of General Provisions for the Avoidance of Double Taxation* Introduction The recovery of incompatible State aid has to be carried out immediately and effectively. The Commission gives guidance to the Member State concerned how to calculate (...)

It is a well-established principle in the case law that when a public authority acts as a private investor, it must disregard all public policy objectives and its obligations as an arm of the state. Many judgments of EU courts and Commission decisions have examined in detail the various (...)

The continuation of beneficial arrangements after the expiry of a service contract constitutes State aid. The practice of not charging for the use of public assets constitutes State aid. Introduction On 7 September 2022, the General Court ruled, in case T-642/19, JCDecaux v European (...)

An Innovative Scheme to Support Individual Borrowers* Individuals and households are not undertakings. However, any public funding of individuals or households may constitute indirect aid to undertakings. Such aid may be exempted on the basis of Article 107(2)(a) TFEU. Introduction (...)

Individual Aid to Counter the Effects of Serious Economic Disturbance Is Legally Possible, but Is it Appropriate?* Individual aid need not be capable itself to remedy serious economic disturbance in the economy of a Member State. It is sufficient that it contributes to that effect. (...)

Territoriality and the Tax Treatment of Intra-group Transactions* A special tax rule can constitute the reference or normal system of taxation if it is “severable” from other tax rules and has its own legal logic. Introduction The application of State aid rules to the tax treatment of (...)

Another Case of Rescue Aid to an Airline* An undertaking does not have to be nationally “important” in order to qualify for rescue aid. Introduction The pandemic has been hard on airlines. For some of them, however, the pandemic simply exacerbated their already existing problems. On 18 (...)

State Aid and Anti-Competitive Practices* State aid to undertakings that engage in anti-competitive practices is incompatible with the internal market. Introduction For State aid to be compatible with the internal market, it may not infringe any other provision of the Treaty or secondary (...)

The Date on which State Aid is Deemed to be Granted Is not necessarily the Date on which the Actual Benefit Materialises* State aid is deemed to be granted even if the benefit cannot be quantified in advance and even if state resources are transferred at a future point in time. (...)

Rescue Aid* Member State must demonstrate that rescue or restructuring aid aims to prevent social hardship or address market failure. The Temporary Framework is coming to an end The European Commission announced on 12 May 2022 that the Temporary Framework will be abolished on 30 June (...)

The Standard of Proof in State Aid Complaints and the “Informational Disadvantage” of Complainants* The Commission must use its investigative powers to seek clarification from Member States in order for it to establish whether a measure constitutes State aid, or is compatible aid, or is (...)

Member States Must Recover of their Own Initiative Illegally Granted Aid* Aid granted illegal must be recovered by the granting authority without any need for a prior Commission decision ordering recovery. The amount of recovered aid may be limited to that which is in excess of what is (...)

Intra-State Transfers and the Discretion of Public Authorities* Resources transferred from one public authority to another for the purpose of being used to subsidise undertakings do not fall within the scope of Article 107(1) TFEU if the recipient authority has discretion in their (...)

A New Temporary Crisis Framework* Introduction A new Temporary Framework which is called “Temporary Crisis Framework” [TCF] to distinguish it from the currently applicable Temporary Framework on covid-19 related State aid was adopted on 23 March 2022, almost two years to the date of the (...)

Introduction On 23 March 2022, the European Commission announced plans to mitigate the spike in energy prices caused by the war in Ukraine. Chief among those plans were proposals for joint gas purchases and gas storage. Increase in storage capacity has been a strategy followed by several (...)

Another Altmark Compliant Case!* Introduction It is very rare for measures of compensation for public service obligations to be found by the European Commission to be compliant with the Altmark conditions. Nonetheless, in the past two years the Commission has concluded that two Italian (...)

Risk Finance* Risk finance aid in the form of tax relief based on the GBER must be limited to private investors. Introduction Decisions of the European Commission authorising aid for risk finance are very rare. This is the consequence of the success of the Commission to get Member States (...)

Compensation for Damage and De Minimis Aid* Compensation for damage caused by protected animals is State aid. Member States may categorise compensatory payments as de minimis aid and refuse to make payments in excess of the de minimis threshold. Introduction Advantage in the meaning of (...)

The Commission Need not Always Open the Formal Investigation Procedure before Correcting a Faulty Decision* The formal investigation procedure need not be re-opened when the fault lies in the legal assessment of the measure in question. Introduction This article examines when the (...)

A Non-Selective Financial Tax with a Narrow Scope* The scope of a tax must be objectively defined in order for those excluded from the tax not to benefit from a selective advantage. Introduction Taxes are burdens, so they fall outside the scope of Article 107(1) TFEU which prohibits (...)

6th Revision of the Temporary Framework for Covid-19 State Aid* Introduction On Thursday, 18 November 2021, the European Commission adopted a sixth amendment to the Temporary Framework [TF] for State aid measures to combat covid-19. The document laying down the new amendments can be (...)

Public Funding of an Energy Infrastructure Project* State aid up to 100% of the funding gap of a project can be compatible with the internal market. Introduction The European Commission approved investment aid for a Liquefied Natural Gas [LNG] terminal in Alexandroupolis in northern (...)

First Case of a “Private Debtor” Test?* A public authority acting as a “private debtor” tries to minimise the amount that it has to pay. Introduction In assessing whether commercial transactions between public authorities and undertakings are free of State aid, the European Commission (...)

Illegal Aid Cannot be Regularised a Posteriori* A Commission decision finding non-notified aid to be compatible with the internal market cannot remedy the illegality that existed before the Commission decision. Introduction In November 2021, the General Court rejected an appeal by the (...)

Compensatory Payments and State Resources* Introduction The Court of Justice has stressed repeatedly that any resource over which the state can exercise control becomes a state resource, regardless of whether it is managed by a public authority or a private entity. Member States, (...)

Market Economy Operator* Comparing prices charged by different airports is not a suitable method for detecting the existence of selective advantages. Introduction Airports enter into complex agreements with airlines. When airports are in public ownership or operate under a mandate by the (...)

Legitimate Expectations and the “Right” to State Aid* Introduction As the process of transition to green economy accelerates, Member States have been reducing the subsidies they promised to grant to the early investors in the production of electricity from renewable sources of energy (...)

Injection of Capital in a Postal Operator* The resources of a public undertaking necessarily count as “state resources”, regardless of the degree of autonomy of the public undertaking. However, not every decision of a public undertaking can necessarily be “imputed” to the state. A (...)

When Do Legal Exemptions Constitute State Aid?* Introduction An exemption from legal requirements that confers a selective advantage does not necessarily amount to State aid. In most cases, when beneficiaries are found not to receive State aid it is simply because the exemption does not (...)

Introduction Any change to an approved aid measure that affects its compatibility with the internal market turns it into a new aid that has to be re-notified to the European Commission for authorization. If it is not re-notified it becomes illegal aid and possibly incompatible aid, unless it (...)

State Aid to Group of Companies* In assessing the compatibility of State aid with the internal market, the Commission must also consider previous awards to a legally distinct but related company. In assessing the need for rescue/restructuring aid, the Commission must also consider whether (...)

Is State Aid for Locally Established Undertakings Compatible with the Internal Market?* Limitation of State aid to companies which have a durable link with the local economy can be compatible with the internal market. Introduction By prohibiting barriers to free movement and (...)

The article reviews Case C-11/20 The Impossibility of Proving the Absolute Impossibility to Recover Incompatible State Aid* Introduction It is rather impossible for Member States to prove that it is absolutely impossible to recover State aid that has been found by the Commission, and (...)

Amazon and the Difficulty of Finding a Comparable Tax Payer* To apply the Arm’s Length Principle to transactions between two related companies, the Commission must identify the less complex company of the two and compare it to a similar independent company. Methodological errors in the (...)

Compensation for Universal Service Provision* Introduction The rules on State aid for services of general economic interest [SGEI] are very generous because they allow both investment and operating aid. Yet, it is not easy to comply with those rules because the calculation of the (...)

State Aid and Essential National Interest* Introduction State aid should support outcomes that the market by itself cannot achieve. This implies that State aid that is restricted to only one or a few undertakings is unlikely to be capable of delivering the desired outcome. Yet, sometimes (...)

The Impossibility of Proving the Absolute Impossibility to Recover Incompatible State Aid* Introduction It is rather impossible for Member States to prove that it is absolutely impossible to recover State aid that has been found by the Commission, and confirmed by EU courts, to be (...)

Economic Continuity and Recovery of Indirect State Aid* Introduction Recipients of State aid that is found to be incompatible with the internal market have to pay it back with interest. This liability for repayment also extend to anyone else who benefits from the aid indirectly. It is (...)

A Rare Commission Decision on an SGEI Measure that Could Have Been Exempted from Notification* A public service obligation must be imposed by an act of entrustment that describes in detail the terms of the obligation, identifies the undertaking that offers the service and lays down (...)

Draft New RDI Framework* On Monday, 19 April 2021, the European Commission published the new Regional Aid Guidelines for the period 2022-2027. They can be accessed at: https://ec.europa.eu/competition/state_aid/regional_aid/RAG_2021_adopted_communication.zip Introduction On 8 April (...)

Individual Aid Measures to Combat Covid-19* Aid to remedy a serious economic disturbance may be granted to a single company that is important for the national economy. EU law does not extend to competitors a right to the same aid. Introduction Between March 2020 and April 2021, the (...)

State Aid Measures May not be Funded through Discriminatory Taxes* Introduction Member States finance the generation of electricity from renewable energy sources [RES] with revenue they raise through levies or charges on consumers of electricity. On 14 April 2021, the General Court in (...)

“Global” Assessment of Tax Schemes* It is incumbent on the Commission to carry out a global assessment of tax schemes. But it must take into account only those provisions of schemes that apply ex ante and do not depend on the circumstances of individual tax payers. Only when aid has to be (...)

Exclusive Rights and State Aid* Exclusive rights may constitute State aid if they mandate payments with resources over which the state can exercise control. Compensation for the cost of public service obligations may be granted only if the obligations are clear and define a service that is (...)

Can the Decision of a Private Entity be Imputed to the State?* Introduction One of the trickiest aspects of determining whether a financial transaction involves State aid is its attribution or imputation to a decision of the state, especially when the entity providing the funding is (...)

State Aid May be Limited to Undertakings with Close Links with the National Economy (Part II)* Introduction The European Commission acted swiftly to adopt a fairly accommodating and wide-ranging “Temporary Framework” to regulate State aid for the purposes of counter-acting the impact of (...)

Liquidity Assistance to Banks to Counter the Effects of Covid-19* Any direct public support of financial institutions affected by covid-19 has to comply with both State aid rules and the rules of the banking union. Introduction The Temporary Framework for State aid to combat covid-19 (...)

Lease Contracts and Competitive Selection* Introduction After receiving a complaint, the Commission opened a formal investigation into alleged State aid granted by the Estonian Ministry of Rural Affairs to AS Tartu Agro, a private limited company, which produced milk, meat and cereals. (...)

A First Evaluation of Covid-19 State Aid* Introduction On 17 December 2020, the European Parliament published a report evaluating the impact of State aid to combat covid-19. The report was requested by the committee responsible for economic policy. The report is probably the first (...)

State Guarantee to an Energy Project* A state guarantee can bridge the funding gap of an infrastructure project. Introduction State aid rules allow energy infrastructure projects to be supported by as much aid as is necessary to bridge their “funding gap”; i.e. the difference between the (...)

Attribution to the State does not necessarily Imply Control by the State* Prices fixed by the state do not necessarily confer control to the state over the private resources which are used to pay those prices. Introduction Judging from how many times EU courts have been asked to (...)

Advantage Must be Proven, Not Assumed* Introduction When a company gets into financial trouble, public subsidies may provide a temporary respite but hardly ever a permanent solution if the company does not undertake painful restructuring. More than 10 years ago, Larko, a Greek mining (...)

Non-recovery of Incompatible State aid Is Costly* Introduction The 2020 Temporary Framework for State aid to combat covid-19 has a much wider scope in comparison to other State aid regulations and guidelines. Normally, State aid regulations and guidelines exclude, for example, undertakings (...)

Has an Economic Myth Become a Legal Fact? The Case of Turnover Taxes* Introduction Recent cases involving “turnover” taxes have sparked a debate in the literature and on the conference circuit not only because they raise novel issues but also because of their implications for other taxes (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Environmental Remediation and State Liability* Introduction On 16 January 2020 the General Court delivered its judgment in case T‑257/18, Iberpotash v European Commission. Iberpotash, a Spanish company, appealed against Commission decision 2018/118. Iberpotash owns and operates potash (...)

Exclusive Rights and Legal Monopolies* Introduction The fact that a company enjoys exclusive rights and operates in a sector covered by a legal monopoly does not necessarily insulate it from State aid rules. This has been confirmed by the Court of Justice in its judgment of 19 December (...)

Bail-in Is the Responsibility of Member States* Introduction Investors in banks who lost their money have sought compensation both at EU and national level. So far, claims for damages at EU level have been unsuccessful. In some instances, the cases before EU and national courts have been (...)

A PREFERENTIAL ELECTRICITY TARIFF SELECTIVE, CONFERS AND ADVANTAGE AND DISTORTS COMPETITION* Introduction On 11 December 2019, in case C‑332/18 P, Mytilinaios Anonymos Etairia — Omilos Epicheiriseon v European Commission, the Court of Justice probably wrote the last chapter in a (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Public Funding of Infrastructure without State Aid* Introduction Public funding of infrastructure does not constitute State aid if access to the infrastructure is free for all users on non-discriminatory terms. If, by contrast, access to the infrastructure is restricted or it is designed (...)

SEPARABILITY OF ECONOMIC FROM NON-ECONOMIC ACTIVITIES* Introduction Pure research whose results are widely disseminated is undoubtedly a non-economic activity. Research reports are often published on the internet. But the design and management of a research organisation’s website can be an (...)

CAN A TAX (RATHER THAN A TAX EXEMPTION) CONFER A SELECTIVE ADVANTAGE?* Introduction A tax exemption normally confers a selective advantage, unless it is justified by the logic of the tax. Counterintuitively, a tax itself can be selectively advantageous if its scope is too narrow. As the (...)

COMPENSATION TO A TOLL ROAD OPERATOR* Introduction When is a company entitled to compensation by the state? The easy answer is “when the state is liable for damage”. However, it may be possible for a company to claim compensation from the state when the state has assumed contractual (...)

ECONOMIC CONTINUITY IN RECOVERY OF INCOMPATIBLE STATE AID* Introduction Companies rarely escape from the obligation to repay incompatible State aid. Over the past decade or so, very few companies have successfully argued that they legitimately expected that the aid they received was (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

How to Compensate for the Extra Cost of Public Service Obligations: Step-by-Step Guidance on a Complex Calculation* Introduction The two most difficult issues in the design of State aid measures to support services of general economic interest [SGEI] are the proper definition of the public (...)

Helsinki Busses, Loans, Article 93 and Indemnification* Bus transportation provided by public authorities constitutes economic activity. Loans given by a public authority to its transport unit have to be priced at market rates. The market value of public assets sold to third parties has to (...)

Many Tax Rulings Do Not Make a Single Aid Scheme* The autonomy that Member States enjoy in the field of direct taxation must be exercised in compliance with EU State aid law. A State aid measure is considered to be a “scheme” when (a) no further implementing acts are necessary, (b) the (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Justification of a Tax Exemption* Prevention of excessive taxation may justify tax exemption. Prevention of abuse may justify limits to the tax exemption. Introduction A tax exemption may not constitute state aid if it is justified by reasons which are linked to the nature or general (...)

Infrastructure Projects, State Guarantees and Distortion of Competition* State guarantees must be limited in duration and amount and the conditions for their mobilization must be defined in advance. Public funding to an operator in a closed sector does not affect trade and, therefore, does (...)

The Private Investor Principle in Air Transport - Part I* The Private Investor Principle in Air Transport - Part II* Public funds managed by private airport operators can be classified as state resources. Prices charged by airport operators can be used as a benchmark for market prices only (...)

Pari Passu Is not Static* When comparing the behaviour of public and private creditors, it is necessary to ensure that their situations and interests do not diverge over time. Introduction When an undertaking owes money to a public authority the latter must use all available legal means (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

*Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on StateAidHub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Public Service Compensation Compensation for the provision of public services may not exceed the avoidable cost minus any forgone revenue from not having to provide those services. The VAT exemption for postal services is not State aid because it is laid down in the EU VAT directive and (...)

The Extent of the Discretion of Member States to Define Services of General Economic Interest (SGEI) A service is classified as an SGEI not only when it is important for citizens but also when the market does not adequately supply it and one or more undertakings are compelled to provide it (...)

Exemptions from Product-Specific Taxes* Tax exemptions do not constitute State aid when they aim to induce change in the behaviour of consumers, when they distinguish between harmful products and non-harmful products and for reasons of administrative simplicity. Introduction In the past (...)

State Aid for the Deployment of Broadband Networks Most State aid for the development of broadband networks is approved by the Commission. But the aid must be limited only to areas where market-based investments are unlikely to be made without aid. Introduction This article reviews a (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Compensation for Public Service Obligations Introduction Every three years the UK determines the compensation it provides to the Post Office Limited (POL) for the extra costs of the public services it provides. Commission decision SA.48224 approved the compensation for the next three-year (...)

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Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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Activities linked to State prerogatives Economic activities which cannot be separated from the exercise of public powers cease to be economic in nature. Introduction The dividing line between economic and non-economic activities is in a permanent state of flux. Although it is now clear (...)

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Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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Transfer of State Assets between State-Owned Companies* Transfers of public assets for the purpose of extinguishing debt have to be valued according to private creditor principle. Transfers of public assets that involve State aid must be notified to the Commission. Introduction Sale or (...)

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Calculating the Amount of State Aid in a 100% Public Guarantee* The proxy rates in the Commission Notice on Guarantees cannot be used in cases of state guarantees that cover 100% of the underlying loans. Introduction Last week’s article reviewed the terms of the operation of regional (...)

* Article published on StateAidHub (click here). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships with a party or related third party. Article will need (...)

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Sale of State-Owned Bank* The sale of a public asset is free of State aid when it is open, transparent, non-discriminatory, unconditional and the award is made to the highest binding and credible offer. Introduction The rules on State aid to financial institutions and banks have become (...)

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Altmark requires efficiency: Article 106(2) TFEU does not.* Introduction On 8 March 2017, the Court of Justice rendered its judgment in case C‑660/15 P Viasat Broadcasting v European Commission. Viasat Broadcasting appealed against the judgment of the General Court of 24 September 2015 (...)

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Selectivity Stretched* Derogations that result in different tax treatment are selective measures. Introduction On 21 December 2016, the Commission achieved an important legal victory when the Court of Justice found in its favour in the judgment in joint cases C‑20/15 P and C‑21/15 P, (...)

Pensions, public statements and private investors* Introduction This article reviews two court judgments both of which concern Orange, the French incumbent telecoms operator. The first judgment finds that compensation for the extra costs of pensions of Orange employees with civil service (...)

Funding of the Spanish Public Broadcaster and Hypothecation of Taxes* Tax payers have grounds to object to a tax on the basis of Article 107(1) TFEU only when the tax is “asymmetrical” or when it is “hypothecated” to an aid measure. Introduction On 10 November 2016, the Court of Justice (...)

Identification of the Reference Tax System: The Case of a Tax on Advertising Turnover* Turnover taxes should be levied at a single rate. Introduction This is the fourth case involving turnover taxes that have been declared to be incompatible with the internal market . A brief summary was (...)

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* Article published on StateAidHub (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships (...)

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State Aid for R&D: How Intermediaries Pass on Aid to Third Parties* Operators of research infrastructure do not benefit from State aid, if they fully pass on the aid to the users of the infrastructure. The amount of aid must be quantified. Introduction The beneficiaries of State aid (...)

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No affectation of trade* Introduction In April 2015, the Commission surprised us with seven decisions that concluded that planned State aid was not likely to have any effect on trade between Member States. Those decisions were reviewed here on 15 June 2015. [1] The Commission gave (...)

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Belgium’s Alternative Tax Regime for the Diamond Sector* Alternative tax regimes do not provide State aid as long as they raise the amount of tax paid and they are justified by the nature or general scheme of the normal system of taxation. Introduction During the past three years, the (...)

State aid for R&D: What is research?* Introduction The purpose of research is to discover something new. But what is often difficult to define for public authorities that wish to stimulate more research activities is how new must be the outcome of research. It is rare that research (...)

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Burden-sharing and State aid to banks* Introduction On 19 July 2016, the Court of Justice rendered its judgment in case C‑526/14, Tadej Kotnik and others v Državni zbor Republike Slovenije. The judgment was in response to a request for a preliminary ruling from the constitutional court of (...)

Compensation for the extra costs imposed by law* Introduction On 14 July 2016, the General Court rendered its judgment in case T 143/12, Germany v Commission. The outcome was a victory for Germany as the General Court annulled Commission decision 2012/636 which had ordered Germany to (...)

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Compatible State Aid May Have Negative Effects on some Market Operators* The existence of market failure is not necessary for aid to be declared compatible under Article 107(3). Market failure does not mean that the market is completely unable to supply a good or service. State aid aiming to (...)

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Sport Facilities, the Balancing Test and Distortion of Competition* Aid measures that target persons with particular needs and who are not adequately provided by the market are not likely to be found to distort competition contrary to the common interest, even if there is some (...)

Support for Green Electricity: State Resources and “PreussenElektra”* Arrangements established by law whereby undertakings are compensated for any extra payments they make to producers of green electricity are likely to bring those payments under the control of the state. Those payments (...)

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* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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When Infrastructure is not Public: Dedicated, Project-Specific and Bespoke* Public funding of open and freely used infrastructure is not State aid. Public funding of project-specific, dedicated or bespoke infrastructure is State aid. Public funding of infrastructure connecting public and (...)

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An Exception Is Not Necessarily Selective: The Case of the Spanish Tax Lease* An exception from a tax system is not selective if it is a priori open to any tax payer. Checks by tax authorities to ensure that a measure is applied correctly do not constitute exercise of administrative (...)

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Nature Conservation as a Service of General Economic Interest* Public funding of non-economic activities does not create State aid problems when any related economic activities are clearly separated. The 2012 SGEI package can apply retroactively. Introduction Member States of the (...)

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a) Natural Disasters and b) Absolute Impossibility to Recover Incompatible State Aid* Aid to remedy the damage caused by natural disasters can be granted only if the damage is the direct consequence of the disaster and the amount of aid must be limited to the actual damage suffered by each (...)

The Pricing of Access to an Important Project of Common European Interest* Infrastructure that is commercially exploited [e.g. charging of tolls] is an economic activity. Infrastructure that is freely available to users is not economic activity. Access fees or tolls may be regulated. State (...)

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The State Acting as a Private Creditor & State Aid Enforcement and Procedural Rights* In this article I review Commission decision SA.37100 on JSC Liepajas Metalurgs [LM], once Latvia’s largest steel company and major employer. The decision examines whether Latvia acted promptly to (...)

The Challenge of Calculating a Market Price* The market price of land or buildings can be determined via auction, expert valuation or other appropriate methods. Introduction On 16 July 2015, the Court of Justice delivered its judgment in case C‑39/14, BVVG Bodenverwertungs- und (...)

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When Do Public Pronouncements Confer an Advantage to Undertakings?* Public pronouncements can confer an advantage if they are sufficiently precise and clearly commit a public authority to support an undertaking. Introduction Politicians often claim that they would never allow important (...)

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 (...)

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 (...)

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 (...)

Levying of Charges to Maintain Equal Treatment Is Not Necessarily Selective* The standard of proof of whether a measure is selective depends on whether that measure is a scheme or a grant of individual aid. Measures providing for exemption are by definition selective. Measures that impose (...)

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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 (...)

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 (...)

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 (...)

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 (...)

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 (...)

* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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 (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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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 (...)

* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

A National Measure that Does Not Apply at Regional Level Is Not Necessarily Selective* Where there is a constitutional division of tax competences, different authorities may tax similar activities at different rates. Introduction This article examines Commission decision SA.34469 on (...)

How Injection of Public Capital Can Be Free of State Aid* Injection of public capital in an undertaking conforms with the market economy investor principle when: The public investment is equal and concomitant to private investment. The public investment has economic significance and is not (...)

Ex post Monitoring of a Risk Capital Fund* Ex post monitoring will be pursued vigorously by the Commission. Irregularities in the implementation of State aid measures may lead to the opening of the formal investigation procedure. Introduction This article examines Commission decision (...)

* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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, (...)

The Perils of Ex Post Monitoring* Greater use of the new General Block Exemption Regulation means fewer State aid measures subject to notification and ex ante assessment by the Commission. However, less ex ante control will be followed by more ex post control. Member States should be (...)

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 (...)

i) SeaFrance* When a public authority makes an investment in a financially troubled company, the State aid bells should start ringing. However, it is now a well-established principle of the case law on State aid that even when a public authority invests in a troubled company, there is not (...)

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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 (...)

* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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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 (...)

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* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Loans for SMEs* Low-interest loans may be used to support investments. The granting of de minimis aid through loans is possible only if loans are secured against collateral. The 2008 Commission Communication on interest rates does not apply to subordinated, non-collateralised loans. (...)

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 (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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. (...)

* Article published on State Aid Hub (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

Use of Publicly-Funded Infrastructure without State Aid* Public funding of infrastructure which is open to any user does not constitute State aid. Public funding for the upgrading/extension of infrastructure in view of expected increase in the number of users is not State aid as long as it (...)

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 (...)

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 (...)

i) Domestic Legal Problems Do Not Make the Recovery of Incompatible Aid Absolutely Impossible ii) Role of National Courts in Cases of Non-notified Aid* Main points The only defence for non-recovery of incompatible State aid is absolute impossibility. Obstacles in domestic legal proceedings (...)

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 (...)

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 (...)

Land Transactions: Commercial Deals v Regulatory Acts* Regulation on land use or changes in such regulations do not constitute State aid. Administrative methods for calculating the value of public land do not necessarily prevent the granting of State aid if they do not reflect the evolution (...)

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 (...)

Airport Infrastructure, Public Remit and the MEOT* A public authority, acting as a private investor, may provide finance which is free of state aid to an airport and at the same time grant state aid to the same airport. Public funding of activities that fall within the exclusive tasks of the (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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 (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

The Market Economy Investor Test Applied to a Financially Troubled Company* Main points Public funding of an undertaking is free of State aid when it is accompanied at the same time and on equivalent terms by similar private funding. If public funding is provided at the insistence of the (...)

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 (...)

A Measure is Selective if its Application is Narrower than the Scope of the Objective it Seeks to Achieve* Main points A measure is attributed to a decision of a Member State if it is allowed but not mandated by an EU directive. A measure is selective when in practice it is open to fewer (...)

Article published on Lexxion State Aid Blog The New General Block Exemption Regulation: The Cornerstone of the State Aid Regime, 2014-2020* The new GBER at a glance Common Provisions Aid must be transparent Aid must have incentive effect Rules on cumulation Aid measures & awards (...)

Introduction Privatisation is the transfer of ownership of state assets to private concerns. Normally, privatisation is effected through an act of sale for a certain sum that reflects the value of the assets. This is the typical case when the assets have a certain positive value. However, (...)

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 (...)

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. (...)

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 (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on Lexxion State Aid Blog A Textbook Case of False Arguments: T-150/12, Greece v Commission* Main points Recipients of State aid obtain an advantage even if they do not succeed to improve their position on the market Recipients of State aid obtain an advantage whenever (...)

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 (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on Lexxion State Aid Blog The New Guidelines on State Aid to Airports and Airlines: Problematic Issues (part 2)* Last week I reviewed the main provisions of the new Guidelines on State Aid to Airports and Airlines. This week I focus on three issues which are either not (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on Lexxion State Aid Blog, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

*Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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. (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

A Market Operator, unlike a Public Authority, Does not Have to Treat all Customers Equally* In managing infrastructure, a public authority acts as a private operator when it seeks a reasonable return on its investment and also takes into account the alternative of not operating the (...)

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 (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on Lexxion State Aid Blog The New Rules on De minimis Aid for 2014-2020: Regulation 1407/2013* Introduction It is appropriate to start this year’s articles on State aid with an appraisal of one of the most important new legislative items for the period 2014-2020: the (...)

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. (...)

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 (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Article published on Lexxion State Aid Blog Public Funding of Projects that Encounter Financial Problems* Main points Aid that is granted after the start of a project lacks incentive effect and is, therefore, incompatible with the internal market. However, aid may be justified when a (...)

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 (...)

The Possibly Conflicting Roles of EU Institutions on State Aid* Introduction On 10 December 2013, the Court of Justice, in C‑272/12 P, wrote another chapter in the long-running case of the exemption from excise taxes for alumina producers in France, Ireland and Italy. This is not the last (...)

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 answer “nothing, in fact”. Indeed, nothing (...)

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 (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

* Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 decided to provide financial compensation (...)

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 (...)

* Article published on Lexxion State Aid Blog, republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no relationships (...)

Sale of Public Assets, SGEI and Electricity Levies* Main points Revenue from levies on electricity users is most likely to constitute State resources. Public service obligations can be transferred from one electricity-generating company to another. Compensation for public service obligations (...)

The Offsetting of a Structural Disadvantage Is still State Aid* Introduction Normally it is conceptually and technically fairly easy to determine whether an undertaking benefits from a public measure. However, this task becomes considerably more difficult in two situations: i) when a (...)

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 the case law concerning the concepts of (...)

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 the case law concerning the concepts of (...)

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 the case law concerning the concepts of (...)

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 from economic activity is itself economic and (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

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 (...)

Article published on Lexxion State Aid Blog. Privatisation of Aeroportos de Portugal: Conflict between the National Economic Adjustment Programme and State Aid Rules?* Background Portugal notified to the Commission the privatisation of the “Aeroportos de Portugal” [ANA] for reasons of (...)

Article published on Lexxion State Aid Blog. The Confusion between Necessity and Proportionality of State Aid [Case SA.35738: Public Funding of Port Infrastructure]* Introduction Several postings in this blog have examined cases concerning funding of port, airport or sport (...)

Article published on Lexxion State Aid Blog A Public Authority Can Behave Like a Private Investor even when the Beneficiary Has Little Prospect of Future Profitability* Introduction When a public authority invests in an undertaking, it must earn a return at market rates, otherwise the (...)

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 judgment of the General Court in case T-442/07 (...)

Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Natural disasters: Commission Decision SA.36027 on compensation of damage caused by future natural disasters in Valle d’Aosta (IT) This is an unusual (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

Ex Post Evaluation of State Aid: A New Instrument* Introduction: The need for evaluation The State Aid Modernisation that was launched by the European Commission in May 2012 aims primarily to channel State aid to remedying genuine market failure. Subsequent policy documents have all been (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

Article published on Lexxion State Aid Blog The Private Investor Principle Applied to Loans [Commission Decision 2013/528]* Introduction The State aid issue in this case is relatively straightforward. Nauta, a Polish shipyard, received a two-year loan from IDA, the state-owned Polish (...)

*Article published on Lexxion State Aid Blog (click here), republished in e-Competitions with the courtesy of the author(s). The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 France Telecom. The case was an appeal to an (...)

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 by Italy [SA.20829] This decision concerns three (...)

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 (...)

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 (...)

* Article published on StateAidHub: http://stateaidhub.eu, republished in e-Competitions with the courtesy of the author. The original title of this article appears below the e-Competitions title. Authors are welcome to write an alternative article on this case/text, provided they have no (...)

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 (...)

Article published on Lexxion State Aid Blog Sale of State-owned Airlines* Introduction In the previous posting I examined the funding of a regional airport. In this posting I look at a case concerning an airline; more specifically, the sale of three subsidiaries of Polish airline LOT. (...)

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 (...)

Two Judgments: a) Unlimited State Guarantees and b) The Discretion of the Commission in Restructuring Measures* Main points Unlimited state guarantees are never compatible with the internal market. The existence of an unlimited guarantee and its benefits can be inferred from the relevant (...)

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 (...)

Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Reduced commercial risk: Commission Decision 2013/198 on aid to Habidite Alonsogeti (ES) Habidite Alonsogeti (HA) was involved in the construction of (...)

Article published on Lexxion State Aid Blog The Market Economy Vendor Principle: Sale of Public Land by the Dutch Municipality of Leidschendam-Voorburg* [Commission Decision SA.24123] The previous post examined a case where the European Commission applied the Market Economy Investor (...)

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 (...)

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 (...)

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 (...)

Article published on Lexxion State Aid Blog Airport Operators and Budget Airlines* During the past 18 months or so, the European Commission has launched more than 20 investigations in the funding of regional airports and the arrangements that these airports have concluded with budget (...)