Sheppard, Mullin, Richter & Hampton (Brussels)

Jacques Derenne

Sheppard, Mullin, Richter & Hampton (Brussels)
Lawyer (Partner)

Jacques Derenne is Global Co-Practice Group Leader, Antitrust & Competition of Sheppard Mullin. He is a member of the Brussels and Paris Bars. Since 1988, Jacques has advised on all aspects of competition law (mergers, cartels, abuses of dominance and State aid) and of EU law. He has experience in a variety of sectors, in particular regulated industries and services such as the postal sector, aviation, railways, energy, telecoms and tobacco products. He regularly appears in competition hearings before the European Commission, and pleads cases before the General Court and the Court of Justice of the European Union, national competition authorities, the Belgian and French courts and various regulatory bodies. With respect to State aid, Jacques Derenne has been involved in such ground-breaking cases as the Chronopost litigation (on behalf of DHL, Fedex, UFEX) on the notion of cross-subsidies and the role of national courts in State aid issues and the landmark ALSTOM restructuring aid case. Jacques State aid experience spans more than two decades, during which time he has acted for beneficiaries, competitors and Member States before the European Commission, EU and national courts. Jacques co-directed and co-authored seminal studies published by the European Commission on the private enforcement of State aid rules at national level (2006 and 2009). He also co-edited and authored several books and numerous articles and he regularly speaks at conferences on this matter. Jacques is a professor at the University of Liège (teaching State aid law in LL.M in Competition and IP Law) and at the Brussels School of Competition (’The Law and Economics of State aid’ with an economist and an EU official). He also taught competition law at the Brussels Bar between 2002 and 2008. He is a founding member of the Global Competition Law Centre (GCLC - College of Europe, Bruges) and is a member of its Scientific Council and its Executive Committee. He has widely published on EU constitutional, competition, in particular State aid, and regulatory issues.

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Sheppard, Mullin, Richter & Hampton (Brussels)
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Sheppard, Mullin, Richter & Hampton (Brussels)

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Jacques Derenne
Jacques Derenne 26 June 2017 Paris

Articles

247508 Bulletin

Jacques Derenne, Dimitris Vallindas, Ciara Barbu-O’Connor The EU Commission adopts a series of measures implementing a flexible approach for approving urgent aid granted by member states to companies affected by the COVID-19 outbreak

143

The unique EU State aid control law requires, in principle, prior notification by Member States and approval by the Commission of all State aid. During a time of crisis, like the COVID-19 pandemic, EU law allows for a flexible approach for approving urgent State aid. In this post, we discuss (...)

Cédric Kaczmarek, Jacques Derenne, Mariëtte Swart The Belgian Competition Authority confirms refusal by the Competition Auditor to adopt interim measures following alleged abuse of dominance by 10 pharmaceutical companies concerning pharmaceuticals parallel imports (Bofar)

2640

Introduction On 2 April 2009, the President of the Belgian Competition Council rejected the appeal by Bofar NV ("Bofar") against the decision of the Competition Auditor, which rejected Bofar’s request for interim measures following an alleged abuse of dominance by 10 pharmaceutical companies. (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Court of Commerce of Brugge rules that the implementation of a State aid measure must be postponed until the EC Commission has finished its investigations (Oostende fish market - AGVO)

979

Factual Background The municipality of Oostende has granted several benefits to the fish market of Oostende. This includes the grant of start-up capital by the Autonoom Gemeentelijke Vismijn Oostende (“AGVO”); AGVO then subsequently granted financial assistance to EVO and PO. In addition, the (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Constitutional Court finds there was no disguised State aid regarding the underevaluation of costs for operators of nuclear reactors in comparison to the costs borne by other operators (Union professionnelle belge des médecins spécialistes en radiothérapie-oncologie)

1836

Factual background L’Agence fédérale de controle nucléaire (the Federal Agency of nuclear control) is a public organisation with legal personality in relation to protection of the population and environment against the dangers of ionizing rays. The Agency is also responsible for providing the (...)

Cédric Kaczmarek, Jacques Derenne The French State Council orders stay in proceedings regarding the recovery of unlawful aid in the CELF case and refer to the ECJ the question of the extent of the national courts’ obligation in such "exceptional circumstances" (CELF II)

1456

Factual background CELF is a cooperative society in public limited company form and operates as an export agent. It aims to process orders from abroad and from the French overseas territories and departments for books, brochures and any communication media and, more generally, to perform (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Supreme Court applies the ruling of the EU Court of Justice and holds that the tax on slaughterhouses does not constitute unlawful State aid as it is part of an aid scheme declared compatible (Slachthuis Swaegers)

1804

Factual Background Under the Belgian Animal Health Act 1987 (the “1987 Act”), compulsory charges were levied on slaughterhouses. These charges were subsequently used to finance animal welfare measures that improve the hygiene, health and quality of life of animals. This scheme had, however, (...)

Cédric Kaczmarek, Jacques Derenne The French State Council deals with alleged State aid claimed by an interprofessional organisation requesting the annulment of a ministerial decision (Comité National des Interprofessions des Vins à Appelations)

1292

Factual Background Twelve interprofessional organisations lodged a series of actions in annulment against a ministerial decision before the administrative jurisdictions, rejecting their demand for notification to the European Commission of a provision of the French rural code (Code rural) (...)

Cédric Kaczmarek, Jacques Derenne, Mariëtte Swart A Belgian Court makes preliminary reference to the ECJ regarding compatibility of Belgian procedural rules with EC regulation 1/2003 (VEBIC)

2040

Introduction On 30 September 2008, the Brussels Court of Appeal made a preliminary reference to the European Court of Justice (“ECJ”) relating to the compatibility of the Belgian procedural rules governing appeal cases with EC Regulation (EC) n° 1/2003 on the implementation of the rules on (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Bordeaux rejects the State aid law pleas invoked by an unsuccessful bidder in a public tender won by a regional public body, ruling that Art. 87 EC is not directly effective (Merceron)

2789

Factual Background This case is an appeal lodged against a judgment at first instance in which the claimant saw its request dismissed. It claimed the annulment of a local authority (city) decision confirming a concession contract for the dredging of the port of a commune. The contract was (...)

Jacques Derenne, Silvia J. Pronk The Belgian Competition Authority adopts an effects based analysis to conclude to the absence of predatory pricing or excessive pricing in the gas and electricity sectors (Electrabel)

2909

Background According to his powers under the Belgian Competition Act (the Law on the Protection of Economic Competition hereinafter "LPCE"), the Belgian minister of the economy, energy and commerce has requested an investigation into the gas and electricity sectors in Belgium to the (...)

Cédric Kaczmarek, Jacques Derenne The French Court of Appeal of Bordeaux rejects the plea of the appellant based on the violation of State aid finding that the contract of public service could include clauses allowing the compensation for the provision of the public service to be actualised or revised (Syndicat mixte de transports en commun de l’agglomération de Bayonne)

1863

Factual Background The syndicate seeks the annulment of the judgment of the administrative court of Pau (first instance) in which the applicant had obtained the annulment of a decision of the city of Bayonne granting a concession to an undertaking for the operation of public transport. The (...)

Cédric Kaczmarek, Jacques Derenne The French Court of Appeal for Basse-Terre holds that third parties cannot request a national court to statute on the alleged incompatibility of a State aid measure but confirms national courts’ jurisdiction for claims for damages (Primistères Reynoird)

1937

Factual Background The society Primistères Reynoird imports goods from the continental part of France and other Member States of the European Union to Guyana and paid the levies in relation to the dock dues and an additional tax for the period between 1 October 1991 and 31 December 1992. In (...)

Cédric Kaczmarek, Jacques Derenne The French State Council finds that a parafiscal tax imposed in the sector of pork meat production should not have been notified as a State aid (Coopérative Cooperl Hunaudaye / Federation Syndigel)

1765

Factual Background The appellant is a group of pork producers also active in the field of slaughtering, cutting and pork meat processing. The undertaking, supported by Syndigel, which is a syndicate of wholesalers, seeks the annulment of an administrative decision of the Ministers of economy (...)

Cédric Kaczmarek, Jacques Derenne The Belgian State Council rules that there is no need for the procuring entity of a public tender procedure to inquire about the legality of an underlying State aid (NV Dimarso / National Bank of Belgium)

4203

Factual Background This case concerns a public tender procedure in which VZW Merlijn Marketeer (“VZW”) was awarded the assignment to investigate the existing customer relations of the National Bank of Belgium (“Bank”). VWZ’s offer was the most economical, in that it was the lowest price of all the (...)

Jacques Derenne, Silvia J. Pronk The Belgian Competition Council fines participants of a hardcore cartel in the chemical industry a record total fine of € 500,000 and grants leniency (Bayer, Solutia Europe, Ferro Europe, Polynt)

4073

Background The product concerned was BBP (butyl benzyl phthalate), a chemical which is mostly used in the production of PVC products. The cartel culminated in scheduled meetings where the participants, the three main producers of BBP in Belgium and a distributor colluded by price fixing, (...)

Cédric Kaczmarek, Jacques Derenne The French Court of Appeal for Douai rejects a tax payer’s claim which contest a tax adjustment and the sums reintegration perceived in the context of the "Borotra plan", on the ground that there was no uncertainty concerning the repayment of the unlawful aid (Blanchisserie industrielle du marais)

1755

Factual Background The appellant seeks the annulment of the judgment of the administrative tribunal of Amiens dated 16 November 2006 in which the undertaking’s claim for repayment of additional taxes paid on societies and VAT was rejected. The appellant is active in the field of washing, (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Nancy annuls a judgement which declared the admissibility of a repayment order for the tax on advertisement expenses constituting unlawful State aid (Fagnières Distribution / Pierrydis / Chamdis / Sodichamp / Eperdis)

1678

Factual Background In this case, the Minister of Economy and Finances seeks the annulment of the administrative tribunal of first instance decision allowing the defendants restitution of the payment of taxes on advertising expenses paid for the year 2002. Between the judgment of the first (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Constitutional Court dismisses a State aid claim filed by economic operators seeking the annulment of a law imposing reusable packages more heavily than "one way" packages (Fédération royale de l’industrie des Eaux et boissons rafraichissantes)

1654

Factual background The Fédération royale de l’industrie des Eaux et boissons rafraichissantes (the “Federation”) sought the annulment of a law of March 2007. The Federation alleged that the law constituted State aid, even if the measure pursues the legitimate objective of protection of (...)

Cédric Kaczmarek, Jacques Derenne The French State Council rules that the variations in the contribution paid by users of a public service do not constitute a modification of a State aid scheme approved by the EU Commission (Federation nationale)

1764

Factual Background The appellant seeks the annulment of a decree relating to the calculation and the rate of a tax on slaughtering. The tax is instituted in application of a provision of the General Tax code (Article 302 bis ZD) is applied to slaughterhouse and is designed to finance the (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Appeal of Marseille dismisses the appeal of tax payers claiming the refund of the tax on meat purchases judging an absence of hypothecation of the levy to aid measure (Tax on meat purchases)

1207

Factual Background The appellants seek the annulment of the administrative tribunal of Nice decision rejecting its demand for tax paid on meat purchases. The tribunal had judged that considering that the tax had been integrated in the general budget of the State, it was not obliged to rule on (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Appeal of Marseille dismisses the appeal of tax payers claiming the refund of the tax on meat purchases judging an absence of hypothecation of the levy to aid measure (Tax on meat purchases)

1107

Factual Background The appellants seek the annulment of the judgement of the tribunal of first instance in which the tribunal rejected the repayment of taxes paid on meat purchases for the period 2001 to 2003 and 2001 to 2002. Summary of the Court’s findings The court adopts the same (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Civil Supreme Court finds that alterations to an existing State aid scheme are modifications of the system itself to constitute an aid and for the scheme to be notifiable to the EU Commission (Belgacom)

1011

Factual background In the decision of the Court of Appeal of Brussels of 16 March 2005, it was held that the Belgian State was not wrong to allow Belgacom, the incumbent Belgian telecommunication company to benefit from a tax exemption pursuant to a provision in a law of 1930 and included in (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Appeal of Paris dismisses the appeal of tax payers claiming the refund of the tax on meat purchases judging an absence of hypothecation of the levy to aid measure (Tax on meat purchases)

1463

Factual Background The appellants seek the annulment of an order of the tribunal of first instance in which the tribunal rejected the repayment of taxes paid on meat purchases, instituted by Article 302 bis ZD of the general tax code, for which it was subject for the period 2001 to 2003 for an (...)

Cécile Ferla, Jacques Derenne The Belgian Competition Authority adopts a new notice on immunity from fines and reduction of fines in cartel cases in order to align the Belgian leniency programme with the EU model

4449

Background When a company applies for leniency to one competition authority (a national competition authority or the European Commission) this application is not taken into consideration by the other competition authorities. The company therefore has to complete multiple applications to (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Appeal of Lyon rules that a claim questioning the validity of an EU Commission’s decision not to raise objection against alleged State aid measures, raised serious difficulties requiring a preliminary ruling (Régie Networks)

1825

Factual Background Régie Networks, an undertaking selling advertising space for the NRJ Group’s local radio stations, paid EUR 152 524 by way of parafiscal charge levied on advertisements broadcast on radio and television in 2001. It claimed reimbursement of that sum from the local tax (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Appeal of Versailles rejects the arguments of a tax payer resisting the payment of a tax on certain advertising expenses on the ground that the levy was not hypothecated to any aid measures (Daimler Chrysler)

2074

Factual Background The appellant seeks the annulment of a judgment of the administrative tribunal of Versailles of 14 March 2006 in favour of the society SA Daimler Chrysler France, which claimed the reimbursement of tax paid in 2002 on certain advertising expenses. Before the tribunal of (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Court of Appeal of Lyon rules that trade chambers are not undertakings and rejects the claim of a claimant alleging that a tax for the expenses of these chambers amounts to unlawful State aid (Bellerivedis)

1789

Factual Background The society seeks the annulment the administrative tribunal of Clermont-Ferrand judgment rejecting its claims for reimbursement of a tax on the expenses of the trade chambers (from 1991 to 2002). The disputed tax is instituted by a provision of the general tax code and is (...)

Cédric Kaczmarek, Jacques Derenne The French Supreme Court rules that national courts have an obligation to take all the necessary measures when national procedural rules are not sufficiently favorable for a claimant wishing to demonstrate the existence of overcompensation for public service obligations (Laboratoires Boiron)

1910

Factual Background The company Laboratoires Boiron appeals the judgment of the Court of appeal of Lyon in litigation concerning a provision of the French Code de la santé publique (Public Health Code). The appellants which is a pharmaceutical laboratory specialising in homeopathic medicines (...)

Jacques Derenne, Thibault Balthazar The Brussels Court of Appeal highlights the Member States’ margin of discretion as regards the method of financing the universal service obligation in the postal and telecommunication sectors (Belgacom - Fund for the universal service in the telecommunication sector)

5374

Background Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJEC L 108, 24 April 2002, pp. 51-77) provides that national regulatory (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Appeal Court of Douai rejects the claim of individuals based solely on Art. 87 EC judging that the provision has no direct effect (Direction de contrôle fiscal Nord)

1202

Factual Background The claimants contested the taxation of an indemnity paid to public servants having changed their regime of mutual insurance. This sum was taxed under Article 160-0 A of the General Tax Code. The claimants argued that the tax led to an infringement of article 3 g) EC and (...)

Cédric Kaczmarek, Jacques Derenne The French Supreme Court applies the EU Court of Justice Boiron State aid case law on burden of proof and annuls the judgment of the Versailles Court of Appeal dismissing the application by a pharmaceutical producer (GlaxoSmithKline)

1817

Factual Background This case is one in a series of cases against pharmaceutical producers and wholesale distributors concerning a provision of the French Code de la santé publique (Public Health Code). The relevant provision obliges pharmaceutical wholesalers to stock enough medical products to (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State upholds the judgment of the Court of Appeal of Douai on unlawful State aid concerning a tax on publicity expenses allocated to finance the press sector (Damart Serviposte)

1886

Factual Background SA Damart is an undertaking which sells advertising spaces inside free newspapers. The claimant requested the recovery of a tax imposed on certain commercial expenses as set by Article 302 bis of the Tax code. The Minister of Economy and Finances lodged an appeal before the (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Appeal Court of Nantes dismisses the appeal of a tax payer resisting the payment of a tax on certain advertising expenses on the ground that the levy was not hypothecated to any State aid measures (Tax on advertising expenses)

2244

Factual Background The Minister of Economy and Finance seeks the annulment of the judgment of the administrative tribunal of Caen allowing the request of wholesalers claiming restitution for a tax paid on expenses for advertisement. The tax is set by Article 302 bis MA of the general code on (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State upholds the judgment of the Court of Appeal of Douai on unlawful State aid concerning a tax on publicity expenses allocated to finance the press sector (Atac)

1396

Factual Background Atac is an undertaking selling advertising spaces inside free newspapers. The claimant requested the recovery of a tax imposed on certain commercial expenses as set out by Article 302 bis of the Tax code. At first instance, the administrative tribunal of Lille held that the (...)

Cédric Kaczmarek, Jacques Derenne The French Administrative Appeal Court of Marseille dismisses the appeal of a taxpayer claiming a refund on the tax on meat purchase (Tax on meat purchases)

1749

Factual Background The claimants seek the annulment of judgments by the administrative tribunal of Nice rejecting their claim for a refund of the tax on meat purchase, instituted by Article 302 ZD of the general tax code. The tax was initially designed to finance the public service of (...)

Jacques Derenne, Thibault Balthazar The Brussels Court of Appeal dismisses an alleged anticompetitive agreement and an abuse of dominant position in the electronic payment card market (Master Card / Visa Card)

5666

Background Electronic payment card schemes involve two basic operators : the “issuing bank”, which is a credit institution, and member of a card scheme, that has a contractual relationship with a cardholder for the provision and use of a card of that card scheme ; and the “acquiring bank”, which (...)

Cédric Kaczmarek, Jacques Derenne The Paris Court of Appeal applies an EU Court of Justice ruling in order to dismiss the application by a party seeking the restitution of a tax perceived to be in violation of State aid rules (Toys’R’US)

1828

Factual Background The appellant sought the restitution of a tax for the support of the trade and craft industry ("TACA") paid between 2003 and 2005. Toys’R’US brought a claim before the tribunal for social security of Evry, which dismissed the demand. The TACA is a progressive tax borne (...)

Cédric Kaczmarek, Jacques Derenne The French Civil Supreme Court applies the EU Court of Justice Casino case law on State aid to dismiss the action of wholesalers claiming the unlawfulness of the tax to support the trade and craft sectors (Galerie de Lisieux)

1670

Factual Background The appellant seeks the annulment of the case of the court of appeal of Caen in which the court had rejected its claim for the grant of a refund in relation to a tax for the support of the trade and craft industry ("TACA") paid between 2003 and 2005. The TACA is a (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State finds that a parafiscal tax imposed in the field of producers of foie gras should not have been notified as State aid as no State resources were involved (Confédération paysanne)

1869

Factual Background The appellant seeks the annulment of the extension of an interprofessional agreement concluded in the legal framework of the field of foie gras. The decree which is disputed here extended the scope of a provision of the rural Code on the implementation of actions of (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State applies the EU Court of Justice State aid Casino case law to dismiss the action of wholesalers claiming the unlawfulness of the tax to support the trade and craft sectors (Fédération des entreprises du commerce et de la distribution et autres)

1981

Factual Background A federation of wholesalers, supported by undertakings active in the sector, seeks the annulment (excès de pouvoir) of a decree modifying the implementation of a tax to support the trade and craft sectors (TACA). The TACA is a progressive tax borne directly by retail stores (...)

Cédric Kaczmarek, Jacques Derenne The French Court of Appeal in Versailles dismisses a claim by a pharmaceutical producer that a tax exemption granted to wholesale distributors is State aid, finding that it failed to show the existence of an advantage arising from the exemption (Laboratoires Bristol Myers Squibb)

1998

Factual Background This case is one of a series of cases against pharmaceutical producers and wholesale distributors concerning a provision of the French Code de la santé publique (Public Health Code). This provision obliges pharmaceutical wholesaler to keep a permanent stock of medicinal (...)

Cédric Kaczmarek, Jacques Derenne The French Court of Appeal in Lyon applies the "Casino" case of the EU Court of Justice to dismiss the action of wholesalers claiming the unlawfulness of the tax to support the trade and craft sectors (Agence Organic de recouvrement)

2221

Factual Background The appellants are exploiting several retail premises and were therefore subject to the tax on the support of the trade and craft industry ("TACA"). The TACA is a progressive tax borne directly by retail stores in France which have a sales area exceeding 400 m2 and an annual (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Civil Supreme Court holds that an alteration to an aid system, which was held to be incompatible with the common market, is to be considered as an aid and be notified pursuant to Art. 88 EC (Health and Animal Protection Funds)

1845

Factual background The defendant is an undertaking active in the sector of production of food for cattle. It paid contributions to the Health and Animal Protection Funds pursuant to a provision of national law of December 1987 and implementing acts (Royal-Decree). The provision had not been (...)

Cédric Kaczmarek, Jacques Derenne The Belgian Arbitration Court dismisses a claim for the annulment of a national law granting a tax exemption regime to the telecommunication incumbent making a confusion between the competences of the EU Commission and national courts (Belgacom)

1880

Factual background The tribunal of Gand refered a question for preliminary ruling to the Arbitration court relating to the validity of a provision of the Belgian fiscal code granting a housing tax exemption for property. Belgacom contested the payment of the taxes after it lost the benefit of (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State refers to the EU Court of Justice for preliminary ruling on the extent of the recovery obligation of an unlawful aid later declared compatible by the Commission (CELF I)

2171

Factual background CELF is a cooperative society in public limited company form and carries on the activity of export agent. Its aims are to process directly orders for abroad and the French overseas territories and departments for books, brochures and any communication media and, more (...)

Cédric Kaczmarek, Jacques Derenne The French Civil Supreme Court rejects the arguments based on the unlawfulness of the Aubry Law on the reduction of the working time on the basis of State Aid reasoning, judging that the measure is of general application (Aides Aubry)

1840

Factual Background The appellant is the legal representative for a society and seeks the annulment of the judgment of the court of appeal of Rennes. On 31 December 1999, the society Tricotages de l’AA concluded a collective agreement for the reduction of working time pursuant to the law of 13 (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State upholds the annulment of a decision by the Commercial Court of Strasbourg finding that the support measures granted to a lowcost airplane company constituted unlawful State aid in application of the private investor test (Ryanair)

1816

Factual Background The claimant, a low cost airline established in Ireland, sought the annulment of the deliberation of the chamber of commerce of Strasbourg and the decisions of its president to sign, in execution of this deliberation, two agreements (principal agreement and supplemental (...)

Jacques Derenne, Lucas Niedolistek The French Competition Authority imposes an unprecedented € 80 M fine to the telecommunications incumbent for abuse of a dominant position on the broadband internet market (France Télécom)

6229

In November 1999, Neuf Télécom, a telecommunications operator, filed a complaint with the French Competition Council (hereinafter “the Council”) against France Télécom, the French historic telephone and Internet provider, on the grounds that the latter was conducting anti-competitive practices on the (...)

Jacques Derenne, Timothy Hirsch The Brussels Court of Appeal holds that the national copyright management society abused its dominant position while relying on an EU Commission written opinion delivered in the assistance procedure (SABAM / Productions & Marketing)

6677

In April 2000, Productions & Marketing requested authorisation from SABAM (Belgian Society of Authors) to use works of its catalogue for five concerts. SABAM offers a preferential tariff (50% price reduction) to companies considered as "big organisers". SABAM refused to grant Productions (...)

Jacques Derenne, Lucas Niedolistek The French Competition Authority applies a "rule of reason analysis" to an abuse of dominant position in the press advertising sector (La Provence Group)

4775

The La Provence group owns the two main regional daily newspapers distributed in Marseille (Southern France) namely Le Provençal and Le Méridional. The two newspapers transferred the exclusive responsibility for managing local advertising to Eurosud Publicité ; however, the commercial policy was (...)

Jacques Derenne, Sami Andoura The Brussels Court of Appeal issues a preliminary ruling on the successive application of Art. 81.3 EC to vertical agreements and concerted practices and rules on the De minimis doctrine (Emond / Brasserie Haacht)

8172

This is a judgment of the Brussels Court of Appeal responding to a request for a preliminary ruling from the Court d’appel de Liège ("Court of Appeal of Liège"), on the application of Article 81 EC and vertical block exemption regulations to a beer supply agreement setting up an exclusive (...)

Delphine Bernard, Jacques Derenne The Belgian Supreme Court adopts an in concreto approach to the definition of the relevant market product for the provision of directory services in the telecommunications sector (Kapitol / Telekom Austria)

4544

Following a request by Kapitol, a Belgian provider of phone directories, based on Directive 98/10/EC of the European Parliament and of the Council, of 26 February 1998, on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a (...)

Jacques Derenne, Sami Andoura A French Court condemns an undertaking to repair the damage suffered by an authorised dealer of a selective distribution network (LCJ Diffusion / La Roche Posay)

8206

This is a judgment of the Court of Appeal of Paris applying Article 81 EC which has been transmitted to the European Commission by virtue of Article 15(2) of Regulation n° 1/2003 and has been published on DG Competition’s website (See also on this case, C. Mai-Doremus and J. Philippe, The Paris (...)

Jacques Derenne, Natalia Lacalle Mangas The Spanish Supreme Court requests a preliminary ruling to an exchange of information agreement between financial institutions in relation to clients solvency and compliance (Asnef-Equifax)

4927

This Order has been adopted by the Tribunal Supremo (“TS”) in the appeal lodged against a judgment of the Audiencia Nacional (“AN”) which decided on the appeal against a decision adopted by the Tribunal de Defensa de la Competencia (“TDC”) granting an individual exemption to an agreement on (...)

Jacques Derenne, William Broere The Belgium Supreme Court recalled that subsequent notification of State aid is insufficient to dispense with obligation to reimburse (Voeder Velghe - De Backer)

4737

Background The Law of 24 March 1987 on animal health established a system to finance services to combat animal diseases and improve animal hygiene and the health and quality of animals and animal products. The complainants were required to make contributions to this system. The Belgian State (...)

Jacques Derenne, Lucas Niedolistek The French Competition Council rigorously applies the Sandoz and Bayer EC cases in the context of vertical non-contractual relations (Studio 26/Rossimoda)

4918

Background Studio 26, a retail shop selling luxury brand shoes and leather products, lodged a complaint with the Competition Council alleging practices aiming at fixing the resale price of shoes by Rossimoda, an Italian subsidiary of LVMH. Studio 26 based its claim on letters received from (...)

Jacques Derenne, Lucas Niedolistek The Paris Court of appeal orders the telecommunications incumbent to offer third party operators a new technical and commercial offer giving appropriate access (France Telecom )

4070

For the first time, the Paris Court of Appeal increased the amount of fines imposed by the Competition Council. Although this decision does not implement EC competition law, but French competition law provisions, it is worth mentioning here In February 2000, the Competition Council ruled that (...)

Jacques Derenne, William Broere The Belgian Commercial Court of Mons assesses the validity of an alleged anticompetitive car distribution agreement on the basis of Art. 81 EC and the EC block exemption regulation (Daimler-Chrysler)

9889

The Belgian Commercial Court examined whether certain practices by the defendants infringed Article 81 EC, and in particular whether such practices could benefit from the provisions contained in the applicable EC block exemption regulation relating to the application of Article 81(3) EC to (...)

Alix Müller-Rappard, Jacques Derenne The French Supreme Court refers questions to the EU Court of Justice relating to social security exemptions for French laboratories (Laboratoires Boiron)

1490

Brief description of the facts and legal issues A laboratory filed an action for the refund of a Sociàl Security contribution arguing that this contribution was unlawful State aid, because certain laboratories were exempt. Referring to the Banks case (Joined Cases C-390/98, Banks & Co v (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court of Clermont-Ferrand awards compensation for losses caused by nullity of contract resulting from authorities’ failure to consider State aid rules (Fontanille)

1205

Brief description of the facts and legal issues A law of 1996 enabled the French government to sign agreements with undertakings in the clothing, leather, shoe and textile sectors regarding a reduction in working time, in order to avoid redundancies. In return, the French government granted an (...)

Delphine Bernard, Jacques Derenne The Belgian Commercial Court of Kortrijk suspends proceedings of recovery of State aid pending CFI judgment is challenged by the EU Commission (Walloon Region / Ter Lembeek International)

4920

On 25 January 2006, the Commission decided to bring before the European Court of Jutsice (“ECJ”) an action against Belgium for failure to comply with a Commission’s decision declaring a State aid incompatible with the common market (see IP:). On 24 April 2002, the Commission had ruled that the (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State dismisses syndicate’s claim without considering State aid issues (Syndicat national de l’industrie des viandes)

1823

Brief description of the facts and legal issues Professional associations for the agricultural sector filed a claim, in summary proceedings, for the suspension ("référé-suspension") of a ministerial order ("arrêté") setting out different methods for implementing the tax. They argued, inter alia, (...)

Jacques Derenne, Tim Seidenspinner The English High Court ruled on the applicability of a national doctrine in circumstances where it has previously been held that, in principle, the issue falls within the scope of Art. 81 EC (Days Medical Aids / Pihsiang)

5784

Facts of the case Days Medical Aids Ltd (“DMA”) carried on business as, inter alia, an importer of wheelchairs and scooters designed to assist people with mobility problems. Pihsiang Machinery Manufacturing Co Ltd (“PMM”) exported substantial numbers of scooters worldwide. In 1996, DMA and PMM (...)

Alix Müller-Rappard, Jacques Derenne The Paris Court of Appeal holds a bank liable in damages for its lack of diligence during EU Commission proceedings (CDR / FG Marine-Stardust)

1524

Brief description of the facts and legal issues In June 1997, CDR sold its majority holding in Stardust Marine ("Stardust") to FG Marine. In September 1999, the Commission considered that the State aid granted to Stardust was incompatible with the Common Market and ordered reimbursement of the (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court rejects claim for damages for failure to prove the alternative course of action that would have been adopted in the absence of State aid (Kélian)

1207

Brief description of the facts and legal issues A law of 1996 enabled the French government to sign agreements with undertakings in the clothing, leather, shoe and textile sectors regarding a reduction in working time, in order to avoid redundancies. In return, the French government granted an (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court of Lille rules that tax payers are entitled to refuse payment of taxes under carcass disposal scheme due to failure to notify scheme to EU Commission as required by State aid provisions (Lianoudis)

1782

Brief description of the facts and legal issues The claimant contested the legality of the tax. Summary of the Court’s findings The Administrative Court of Lille stated that stockbreeders were the quasi-exclusive beneficiaries of the services financed by the tax. The Lille Court considered (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court of Orléans denies State aid qualification to carcass disposal scheme on grounds of service of general economic interest - confirming other lower Courts’ rulings (Sobledis)

1677

Brief description of the facts and legal issues The claimant contested the legality of the tax, arguing, inter alia, that it was part of an unlawful State aid scheme. Summary of the Court’s findings The Administrative Court of Orléans stated that the scheme financed by this tax did not (...)

Alix Müller-Rappard, Jacques Derenne The French Council of State ignores State aid based claim and rules that the legality of administrative notices cannot be contested by individuals (Confédération française de la boucherie)

1654

Brief description of the facts and legal issues The Ministry of the Economy, Finance and Industry published an administrative notice ("instruction") merely mentioning the provisions of the law. The legality of this notice was challenged. Summary of the Court’s findings According to (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court of Dijon denies State aid qualification to carcass disposal service tax on the basis of Art. 86.2 EC (Nevers Viandes)

1606

Brief description of the facts and legal issues The claimant contested the legality of the tax in question, as well as that of another tax financing the processing of bones. It argued that these taxes were incompatible with Articles 90, 87 and 88 EC. Summary of the Court’s findings First, the (...)

Alix Müller-Rappard, Jacques Derenne The Social Security Court makes preliminary reference on the application of Article 87 EC to a tax advantage to medical undertakings performing a public service (Ferring)

1229

Brief description of the facts and legal issues The Social Security Court of Créteil requested a preliminary ruling from the ECJ on a tax advantage enjoyed by undertakings entrusted with the operation of a public service, such as wholesale distributors supplying medicines to pharmacies. In a (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court of Caen confirms a lower court’s ruling denying State aid qualification to measures concerning carcass disposal service case (Uniservice and Honfleur Distribution)

1863

Brief description of the facts and legal issues The claimant contested the legality of the tax, arguing inter alia that it was part of an unlawful State aid scheme. Summary of the Court’s findings The Caen Court stated that the scheme financed by this tax was not State aid. The Caen Court (...)

Alix Müller-Rappard, Jacques Derenne The French Administrative Court of Melun rejects a claim that tax on carcass disposal service constitutes unlawful State aid (Picard Surgelés)

1675

Brief description of the facts and legal issues In 1996, the French government set up a system for the free collection and disposal of animal carcasses and slaughterhouse waste for farmers and slaughterhouses. This system was financed by a tax payable by any person active in the retail sale of (...)

Cédric Kaczmarek, Jacques Derenne The French Council of State rejects a plea alleging presence of State aid elements in a decree creating a special tax on basic oils (Union des industries chimiques)

1557

Brief description of the facts and legal issues The claimant requested that the Conseil d’Etat annul a decree ("décret") relating to the creation of a special tax on basic oils in favour of the Agency for the Environment and the Management of Energy ("Agence de l’environnement et de la maîtrise (...)

380830 Review

Olivier Guersent, Thierry Boillot, Muriel Chagny, Jacques Derenne, Frédéric Jenny, Michel Ponsard, Stéphanie Yon-Courtin Olivier Guersent (DG COMP): European competition policy in the context of crisis

225

A conversation with : Thierry Boillot Director of Competition, AFEC - AFJE, Paris Muriel Chagny Professor, University of Versailles-Saint-Quentin-en-Yvelines (Paris-Saclay) and President, AFEC, Paris Jacques Derenne Partner, Sheppard Mullin, Brussels and Professor, University of Liège Frédéric (...)

Jacques Derenne, Ciara Barbu-O’Connor Notion of SME: The European Court of Justice clarifies the definition of small and medium-sized enterprises within the meaning of the General Block Exemption Regulation, in particular the concept of independence in this context (NMI Technologietransfer / EuroNorm)

49

On 24 September 2020, the Court of Justice delivered a preliminary ruling (on a reference from the Berlin Administrative Court) on the definition of small and medium-sized enterprises ("SMEs") within the meaning of Article 3(4) of Annex I to Regulation No 651/2014 declaring certain categories (...)

Jacques Derenne, Caterina Romagnuolo Tax ruling: The General Court of the European Union annuls a decision of the European Commission on Irish tax rulings for lack of evidence of an advantage (Apple)

56

Continuation of the saga of tax ruling / tax rescripts and state aid cases. After the annulment of the ’excess profits’ decision (Belgium - judgment under appeal and annulled decision in the process of being overturned) and the ’Starbucks’ decision (Netherlands - no overhaul in sight), it is now (...)

Jacques Derenne Economic activity: The Court of Justice of the European Union annuls a judgment of the General Court of the European Union and confirms a decision of the European Commission declaring that State measures in favour of health insurance bodies do not constitute State aid (Dôvera zdravotná poistʼovňa)

89

This judgment delivered on appeal (annulment of the judgment under appeal) by the Court of Justice, sitting as a Grand Chamber, makes an important contribution to the contours of the concept of economic activity (and therefore of undertaking) in the context of compulsory health insurance (...)

Jacques Derenne Lack of motivation: The Court of Justice of the European Union annuls a judgment of the General Court of the European Union for breach of the requirement to state reasons concerning the adoption of suspension injunctions by the European Commission and for additions of reasons to those decisions and annuls the contested decisions of the European Commission for failure to state reasons (Hongrie / Commission)

76

The annotated judgment is delivered on appeal, on 4 June 2020, by the Court of Justice, which sets aside the contested judgment of the Court of First Instance of 25 April 2018 and annuls the two Commission decisions in question in so far as they order the suspension of the Hungarian measures (...)

Frédéric Jenny, Christian Ahlborn, Jeremy Bacharach, Christoph Barth, Christian Bovet, Marcel Boyer, Jacques Buhart, Maria Pilar Canedo Arrillaga, Michèle Carpagnano, Daniel Crane, Aymeric de Moncuit, Valentine Delaloye, Jacques Derenne, David-Julien Dos Santos, David Gabathuler, Mark Griffiths, Leigh Hancher, David Henry, Pierre Horna, David Kupka, Siún O’Keeffe, Christian Ritz, Giulio Cesare Rizza, Matthias Schlau, Mario Siragusa, Anastasia Usova, Faustine Viala, Masako Wakui Competition law and health crisis

5842

The unexpected shock provoked by the Covid-19 crisis and the measures taken to limit the spread of the pandemic have affected the functioning of many markets. Throughout the world, competition authorities which, in the last decade, had been enforcing their laws in the context of steady economic (...)

Jacques Derenne, Catalina Chilaru COVID-19: The European Commission adopts a new temporary framework for state aid in the context of the COVID-19 pandemic implementing a flexible approach for approving emergency aid granted by Member States to businesses affected by the pandemic

315

The Commission’s DG Competition has organised itself in a similar way to its response to the 2008 crisis, setting up a specific email address and telephone number for Member States (https://ec.europa.eu/competition/state_aid/what_is_new/covid_19.html; +32 2 296 52 00; COMP-COVID@ec.europa.eu), (...)

Jacques Derenne Recovery: The Court of Justice of the European Union condemns a Member State for failure to comply with a judgment finding a failure to fulfil obligations for not implementing a negative decision of the European Commission and recalls in particular the illegality of national court judgments suspending national recovery orders seeking to implement that Commission’s decision (Commission / Italy)

73

The annotated judgment is again a ’judgment on failure to fulfil obligations’ ordering a Member State (Italy in this case) to pay a financial penalty (EUR 7.5 million) and a daily penalty payment (EUR 80 000) for failure to comply fully with a judgment on failure to comply with a negative (...)

Jacques Derenne, Catalina Chilaru Res judicata: The Court of Justice of the European Union dismisses appeals, by two identical judgments, by confirming that the principle of res judicata cannot be invoked against a subsequent decision of the Commission ruling on the compatibility of an aid measure (Buonotourist, CSTP Azienda della Mobilità)

111

On 4 March 2020, the Court delivered two judgments in which it dismissed and declared inadmissible the action brought by Buonotourist and CSTP Azienda della Mobilita against the judgments delivered by the Court of First Instance on 11 July 2018. As the two judgments are identical, reference (...)

Jacques Derenne, Catalina Chilaru Notion of aid: The Court of Justice of the European Union confirms that a State measure aiming at remedying financial difficulties encountered by a public undertaking could constitute State aid and it is for the national court to draw the consequences arising from a failure of the Member State to notify the measure (Arriva Italia)

110

The annotated preliminary ruling recalls the conditions for classifying a State measure as State aid and confirms that measures adopted in order to respond to the financial difficulties encountered by a public undertaking in the railway sector may satisfy that classification. It is for the (...)

Jacques Derenne Existing aid: The General Court of the European Union confirms a negative European Commission’s decision while the Member State concerned and the beneficiary supported divergent views as to the existence of aid in the circumstances (Autostrada Wielkopolska)

85

The case in question concerns a concession, prior to Poland’s accession to the European Union, for the construction and operation of a toll motorway for a period of forty years. In return for its costs and risks, the concessionaire (Autostrada Wielkopolska) was entitled to collect the tolls paid (...)

Jacques Derenne, Catalina Chilaru Selectivity: The General Court of the European Union annuls a decision addressed to the Netherlands (for lack of evidence of the advantage) and confirms the other decision, addressed to Luxembourg in two factually similar situations regarding tax rulings (Starbucks ; Fiat Chrysler)

229

In two much-awaited judgments of 24 September 2019, the Court of First Instance recalls the Commission’s competence to apply the State aid rules to tax ruling decisions granted by Member States to multinationals, while emphasising the scope and legal nature of the arm’s length principle. In so (...)

Jacques Derenne Existing aid: The General Court of the European Union confirms the Commission’s analysis of the selectivity criterion and rejects actions for annulment of three Commission’s decisions declaring incompatible a corporate tax exemption in favour of Belgian ports (Havenbedrijf Antwerpen et Maatschappij van de Brugse Zeehaven, Port autonome du Centre et de l’Ouest, Port de Bruxelles et Région de Bruxelles-Capitale)

177

As in the case of port companies in France (see Trib. EU, 30 April 2019, Chambre de commerce et d’industrie métropolitaine Bretagne-Ouest (port of Brest), Case T-754/17, EU:T:2019:270 and Trib. EU, 30 April 2019, Union des ports de France - UPF, Case T-747/17, EU:T:2019:271, Concurrences No. (...)

Jacques Derenne, Julien Blanquart Selectivity: The General Court of the European Union dismisses the action brought against the European Commission’s “Alumina II decision” and reminds that once it has established the a priori selective nature of a measure, it is then for the Member State or the beneficiary of the State aid challenging the selective nature of the measure to show that it is justified by the nature and general scheme of the domestic tax system (Irland and Aughinish Alumina)

124

It is not possible here to review all the facts and developments in this lengthy process or to consider all the substantive issues that have been addressed since 2006 in this series of cases. For its background, it is useful to refer to the previous observations in Concurrences CFI, 12 December (...)

Jacques Derenne, Julien Blanquart Competition policy: The European Commission publishes its annual report on competition policy in the form of a non-exhaustive summary of the activities carried out in 2018

100

On 15 July 2019, the Commission published its annual report on competition policy. The following few points can be made with regard to State aid. The challenge of modernising the rules The Commission recalls that the introduction of the new General Block Exemption Regulation in 2014 and its (...)

Jacques Derenne Admissibility: The General Court of the European Union dismisses for inadmissibility actions against a decision relating to the economic continuity and dismisses actions against a decision rejecting a complaint relating to a tender process for the sale of assets of beneficiaries of the State aid found to be incompatible (NeXovation ; Ja zum Nürburgring)

124

The case concerns the Nürburgring motor racing circuit (German Land of Rhineland-Palatinate), its leisure park and its hotels and restaurants. The author of these lines is in no way involved in the affair, but he is nonetheless concerned, as an amateur racing driver, who for some years now has (...)

Jacques Derenne Effect on trade: The General Court of the European Union confirms a decision of the European Commission concluding to the absence of State aid for the sole reason of absence of effect on trade between Member States (Marinvest and Porting)

190

This judgment is interesting because it addresses an issue rarely clarified by the case law: the limits of the condition affecting trade between Member States for the existence of State aid under Article 107(1) TFEU. The Commission had adopted a decision concluding that no aid was involved on (...)

Jacques Derenne Compatibility: The General Court of the European Union declares admissible actions for the annulment of regulatory acts, but confirms a decision of the European Commission declaring incompatible the exemption from corporate income tax in favour of ports’ activities (Port de Brest ; Union des ports de France)

160

These cases relating to the exemption from corporation tax of ports in France have given rise in particular to an interesting admissibility analysis. The Commission has adopted a decision ordering France to abolish the exemption from corporation tax enjoyed by autonomous ports and chambers of (...)

Jacques Derenne Recovery: The Court of Justice of the European Union clarifies the obligations of the national authorities for the recovery of unlawful aid for non-respect of the conditions of the general block exemption regulation (Eesti Pagar)

310

It is in Grand Chamber formation that the Court confirms and clarifies certain fundamental principles relating to the obligations of national administrative authorities faced with unlawful aid. Most of these principles were already contained in the case-law or could very easily be deduced from (...)

Jacques Derenne Tax ruling: The General Court of the European Union confirms the competence of the European Commission to apply State aid rules to tax ruling decisions but delivers the first annulment in this matter solely for a wrong application of the concept of aid scheme (Belgium, Magnetrol International)

158

This is the first judgment of a European court concerning the famous Commission decisions attacking "tax rulings", advance tax rulings or even "rescrits fiscaux", when these decisions appear to deviate manifestly from the principles generally accepted, according to the Commission, in the field (...)

Jacques Derenne, Dimitris Vallindas Selectivity: The Court of Justice of the European Union further clarifies the concept of selectivity in tax matters and accepts a rare case of justification from the nature or the economy of a tax system (Finanzamt B / A-Brauerei)

202

In a much-awaited judgment of 19 December 2018, the Grand Chamber of the Court of Justice delivered a judgment on a reference for a preliminary ruling, refusing to classify as a ’general measure’ the exemption from German real estate acquisition tax for the benefit of certain conversion (...)

Dimitris Vallindas, Jacques Derenne Private investor: The General Court of the European Union confirms a decision declaring unlawful and incompatible a State aid scheme leading to capital increases of a ground handling company granted by the airport managing body held by a public entity (Comune di Milano)

139

By judgment of 13 December 2018, the Court of First Instance dismissed the action for annulment brought by the Comune di Milano (T-167/13) against Commission Decision (EU) 2015/1225 (the ’contested decision’), holding that the capital increases made by SEA to Sea Handling for each of the (...)

Dimitris Vallindas, Jacques Derenne Defective statement of the reasons: The General Court of the European Union annuls for defective statement of the reasons a decision of the European Commission concluding that the creditors committee’s decision to carry on the beneficiary’s business did not constitute a State aid (AlzChem)

93

By judgment of 13 December 2018, the Court of First Instance allowed the action for annulment brought by AlzChem AG (T-284/15) against Commission Decision (EU) 2015/1826 (the ’contested decision’). The contested decision found that the granting of strategic company status to NCHZ had protected it (...)

Jacques Derenne, Marie Lagrue Imputability: The General Court of the European Union essentially confirms decisions declaring unlawful and incompatible State aids granted to low cost companies resulting from airport and marketing services contracts (Ryanair DAC ; Transavia Airlines CV)

155

By five judgments delivered on 13 December 2018, the Court of First Instance dismissed the actions for annulment brought by the airlines Ryanair (T-165/16, T-53/16, T-111/15, T-165/15) and Transavia (T-591/15) against the Commission’s decisions considering that several airport and marketing (...)

Jacques Derenne, Marie Lagrue Incompatible aid: The Court of Justice of the European Union rejects as manifestly unfounded the appeal against the judgment of the General Court of the European Union in the recapitalization case of the French incumbent operator in the energy market (EDF)

206

By order of 13 December 2018, the Court of Justice dismissed as manifestly unfounded the appeal against the judgment of the Court of First Instance in the EDF recapitalisation case, thus bringing to an end a judicial saga lasting almost 15 years. Litigation history It will be recalled that (...)

Jacques Derenne Recovery: The General Court of the European Union annuls the obligation added by the European Commission to the recovery duty, prohibiting the Member State to pay the guaranteed amounts to the natural persons partners of the companies, not identified as beneficiaries themselves (ARCO)

97

The ’ARCO’ case has multiple ramifications following a Commission decision of 3 July 2014 on State aid SA.33927 (guarantee scheme protecting the shareholdings of individual members of financial cooperatives - OJ 2014 L 284, p. 53 - ’2014 Decision’). This case has already been commented on several (...)

Jacques Derenne, Ciara Barbu-O’Connor Selectivity : The General Court of the European Union upholds decisions of the European Commission classifying the Spanish tax scheme as State aid incompatible with the internal market (Deutsche Telekom)

252

On 15 November 2018, the Tribunal delivered several judgements following the World Duty Free judgement of 21 December 2016 (cases C-20/15 P and C-21/15 P - see our commentary in ConcurrencesNo. 1-2017, pp. 153-163.), which had set aside two judgments of the Court of First Instance (Judgments of (...)

Jacques Derenne, Marie Lagrue Unlimited state guarantee: The Court of Justice of the European Union sets aside a judgment of the General Court of the European Union and clarifies the scope and conditions of the presumption of an advantage regarding the unlimited and implied guarantee of the State towards publicly-owned industrial and commercial establishment (Commission / France, IFP Energies nouvelles)

229

The Court’s judgment of 19 September 2018, handed down on appeal by the Commission, is the continuation of the saga between the French State and the Commission concerning the status of public industrial and commercial establishments ("EPICs"). Litigation history It will be recalled that French (...)

Jacques Derenne Suspension injunction: The General Court of the European Union confirms the appropriate character of the adoption of suspension injunctions at the same time as the adoption of a decision to initiate the formal investigation procedure and clarifies the scope of their suspensive effects (Hungary / Commission)

178

The commented judgment examines interesting State aid procedural issues related to the scope of the suspensory effect of a measure of a Member State not notified to the Commission and subject to both a decision to open the formal investigation procedure and a suspension injunction. The judgment (...)

Jacques Derenne Private investor test: The Court of justice of the European Union rejects an appeal against a judgment of the General Court of the European Union confirming, firstly the economic continuity between a seller and an acquirer of the shares of a company being the legal successor of the beneficiary of the aid to be recovered and, secondly the non-applicability of the private investor test to an aid recovery situation where the State acts as public power (SNCF Mobilités)

173

The difficulties of Sernam, the parcel and pallet express transport company wholly owned by the Société nationale des chemins de français (SNCF), have generated many State aid issues since 2001. Legal and factual context A first Commission decision (Sernam 1, 23 May 2001, NN 122/2000) approved (...)

Jacques Derenne Guarantees: The General Court of the European Union rejects an appeal against a decision of the European Commission by applying the principles of a preliminary ruling on determination of validity of this same decision (Arcofin)

98

This is the "ARCO affair", well known in Belgium as a government matter because of the political (and legal: state guarantee) promises made imprudently (and illegally) to a category of cooperators who, through their "savings-investment", financed the debacle of the Belgian-French bank Dexia (...)

Ciara Barbu-O’Connor, Jacques Derenne Economic activity: The General Court of the European Union annuls a decision of the European Commission assessing that State measures granted to health insurance regimes did not constitute State aids (Dôvera zdravotná poist’ovňa)

149

A Commission decision did not classify as State aid a series of Slovak measures (capital increase, debt repayment, grants and risk equalisation scheme) in favour of a Slovak health insurance organisation: according to the Commission, this organisation is not an undertaking within the meaning of (...)

Jacques Derenne Private investor test: The General Court of the European Union upholds, following a first annulment, an European Commission’s decision excluding the applicability of the private investor test and concluding to the existence of unlawful and incompatible aid with the internal market (EDF)

178

The change in EDF’s status gave rise to a major dispute before the courts of the European Union. Legal and factual context Summary of Litigation History It was already on 16 December 2003 that the Commission decided that the operation to restructure EDF’s balance sheet and increase its capital (...)

Jacques Derenne Necessity of the aid: The General Court of the European Union confirms a decision of the European Commission declaring tax exemptions as unlawful and incompatible aid, in particular for being operating aids and not eligible as regional aids for lack of incentive effect and necessity (République hellénique / Commission)

128

This case raises interesting discussions on the criteria of advantage and selectivity as well as on the incentive and necessity of aid. The Court of First Instance dismisses an action for annulment of a Commission decision of 23 March 2015 concerning State aid SA.28876 granted by Greece to (...)

Jacques Derenne Imputability to the state: The Court of Justice of the European Union rules that criteria of imputability to the State of a public undertaking measure and of private investor are two distinct criteria and that imputability to the State can be inferred from a set of indicators, without there having to be shown a concrete incentive from public authorities (Servizi assicurativi del commercio estero (SACE) et Sace BT)

187

By its judgment of 23 November 2017, the Court of Justice dismissed an appeal by Servizi assicurativi del commercio estero SpA (SACE) and Sace BT SpA against the judgment of the Court of First Instance of 25 June 2015 (Case T-305/13; see J. Derenne and D. Dauchez) which had annulled, very (...)

Jacques Derenne Public broadcasting service: The Court of Justice of the European Union annuls a judgment of the General Court of the European Union on the interpretation of ’State resources’ concept in ruling that public undertakings’ resources necessarily fall within the scope of that concept since these undertakings are subject to State control and are therefore at its disposal (TV2/Danmark ; ViasatBroadcasting UK Ltd / TV2/Danmark)

131

On 9 November 2017, the Court of Justice handed down three essentially identical judgments definitively ending the various disputes involving various measures taken by the Danish authorities in relation to the public broadcaster TV2/Danmark. The case mainly concerns the concept of state (...)

Jacques Derenne Private creditor test: The Court of Justice of the European Union upholds a General Court of the European Union’s judgment requiring the European Commission to examine, even at the sole beneficiary’s request, all the elements that a Member State should have considered in order to assess, ex ante, the behaviour of a hypothetical private creditor being in similar situation (Frucona Košice)

320

The series of Frucona cases will not go unnoticed. These judgements have already left their mark on the interpretation of the "private creditor" test for state aid (now generically referred to by the Commission as a "market economy operator" - see Commission Communication on the concept of (...)

Jacques Derenne Obligation of recovery: The Court of Justice of the European Union rules that Belgium breached its obligation by failing to recover an illegal and incompatible state aid which aimed to the financing of testing for bovine spongiform encephalopathy (Commission c/ Belgium)

111

From 2001 to 2005, the Belgian authorities financed tests for bovine spongiform encephalopathy (BSE), made compulsory by Regulation No 999/2001 of 29 May 2001 (OJ 2001 L 147, p. 1). By Decision 2011/678/EU of 29 June 2011 (OJ 2011 L 274, p. 36), the Commission found, inter alia, that that (...)

Jacques Derenne, Marie Lagrue Tax exemption granted to a religious community: The Court of Justice of the European Union considers that a tax exemption granted to a religious community may constitute State aid if it concerns an economic activity (Congregación de Escuelas Pías Provincia Betania c. Ayuntamiento de Getafe)

311

Reference for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo No 4 de Madrid, Spain, was made to the Court of Justice of the European Communities by judgment of that court in a Grand Chamber on the question whether the tax exemptions granted by Spain to the Catholic Church (...)

Jacques Derenne Concept of state aid: The General Court of the European Union confirms the European Commission’s analysis in qualifying the State measures granted in favour of a maritime transport company as incompatible aid (Saremar - Sardegna Regionale Marittima)

239

This case (v. equals, Trib. EU, 6 April 2017, Regione autonoma della Sardegna, Case T-219/14 - this note refers only to judgment T-220/14) concerns the application of the conditions for a State measure aimed at compensating for the costs of a service of general economic interest not to be (...)

Jacques Derenne Public service: The Court of Justice of the European Union dismisses an appeal against a judgment of the General Court of the European Union which partially annulled a Commission’s decision qualifying advertising revenues paid to a public service broadcaster as State aids but declaring these aids compatible with the internal market (Viasat Broadcasting UK)

153

We have commented on the judgment of the Court of First Instance in this case in Concurrences No. 4-2015, pp. 169-170 (Trib. UE, 24 Sept. 2015, TV2 Danmark v Commission, Case T-674/11). The judgment on appeal does not provide any fundamental elements in relation to the judgment of the Court of (...)

Jacques Derenne Preferential tariff scheme: The Court of Justice of the European Union dismisses an appeal against a judgment of the General Court of the European Union which dismissed an application for the annulment of a Commission’s decision declaring unlawful and incompatible a preferential tariff scheme for electricity in favor of intensive energy consumers (aluminum production) (Portovesme)

172

We have commented on the three judgments of the Court of First Instance of 16 October 2014, one of which is being undertaken in the context of the appeal giving rise to this judgment of the Court of 1 February 2017 (see Concurrenceson Trib. EU, 16 October 2014, Alcoa Trasformazioni v. (...)

Jacques Derenne Airport charges: The Court of Justice of the European Union confirms a General Court of the European Union’s judgment annulling a European Commission’s decision for manifest error of appraisal of the selectivity condition (Hansestadt Lübeck)

179

As previously commented (Concurrences No. 4-2014, pp. 198-199), this case is quite specific in two respects: firstly, it concerns the annulment, which is quite rare, by the Court of First Instance of a decision to initiate the formal investigation procedure and, secondly, this annulment is (...)

Jacques Derenne, Marie Lagrue Private investor test: The Court of Justice of the European Union confirms the annulment of the European Commission’s decision decided by the General Court of the European Union on the ground that the regulator did not correctly apply the private investor test (France et Orange)

223

By this judgment of 30 November 2016, the Court of Justice marks the end of the case of the French Government’s public declarations in favour of France Télécom (France Télécom), which has been before the European Courts for more than ten years (see our comment on the second annulment by the Court of (...)

Ciara Barbu-O’Connor, Jacques Derenne Serious difficulties: The Court of Justice of the European Union confirms the General Court of the European Union’s judgment by which the latter partially annulled a European Commission’s decision for an erroneous calculation method of the aid element of the litigious guarantees (Land Hessen / Pollmeier Massivholz)

159

Pollmeier Massivholz is a German company that operates several sawmills near the border of the state of Hesse. Background to the case In 2007, the Commission received a complaint from Pollmeier Massivholz alleging unlawful aid to support the establishment of a new sawmill in the Land of (...)

Jacques Derenne Concept of State aid: The General Court of the European Union dismisses an action against the European Commission and concludes on the absence of State aid for lack of State resources in the determination of an advantageous tariff for ports services (Trajektna Iuka Split)

137

This judgment of the Court of First Instance is of particular relevance to the issue at hand: the finding of no State aid for failure to transfer State resources on the basis of the PreussenElektra case law, which does not often find cases that lend themselves to that conclusion (judgment of 13 (...)

Jacques Derenne Periodic penalty: The General Court of the European Union annuls a decision of the European Commission which determined the amount of periodic penalty payments reflecting the amounts of aid to be recovered which included compound interest conversely to the applicable national law (Italy)

116

This judgment of the Court of First Instance returns to the question of the applicability of compound interest in State aid cases. It was not a question of examining the lawfulness of a decision ordering the recovery of aid in respect of which the question of the nature of the interest arose, (...)

Jacques Derenne, Marie Lagrue Unlimited and implied State guarantee: The General Court of the European Union partially annuls the Commission’s decision qualifying as State aid the unlimited implied guarantee granted to the French Petroleum Institute (France and IFP Energies Nouvelles)

249

Background In its judgment of 26 May 2016, the Court of First Instance was again called upon to rule on the specific features of the French legal status of public industrial and commercial establishments ("EPICs"). These establishments have the particularity, as legal persons governed by (...)

Jacques Derenne Excise duties: The General Court of the European Union, following two annulments on appeal, implements the Court’s approach and dismisses the challenge against a decision of the Commission declaring incompatible with the internal market the exemption from excise duties, although it had been authorised by the Council under internal market rules (Irlande and Aughinish Alumina)

106

By its judgment of 22 April 2016, on a second reference from the Court of Justice after annulment, the Court of First Instance has brought to a close a series of judgments which had caused confusion on several fundamental issues since 2007. The case concerns exemptions from excise duty on (...)

Jacques Derenne Obligation to State reasons: The Court of Justice of the European Union dismisses an appeal against a judgment confirming the validity of a decision declaring unlawful and incompatible with the internal market of compensation payments granted by the Greek Agricultural Insurance Organisation (Greece / Commission)

127

Factual and legal context In upholding on appeal the judgment of the Court of First Instance (Trib. EU, 16 July 2014, Greece v. Commission, Case T-52/12, No. 4-2014, pp. 192-194.), the Court of Justice recalls the principles relating to the basis of the plea alleging distortion of evidence, (...)

Jacques Derenne Restructuring aids: The General Court of the European Union confirms that the aid granted by Austria and Germany to a bank is compatible with the internal market (Austria / Commission)

98

Factual and legal context The judgment concerns an action for annulment by Austria against a Commission decision of 25 July 2012 (SA.XXX) declaring aid granted to Bayerische Landesbank (BLDB) by Germany and Austria compatible with the internal market. The aid was granted in the context of the (...)

Jacques Derenne Restructuring aid: The General Court of the European Union confirms that restructuring aid and other measures granted by a national railway company to its subsidiary constitute incompatible aid and misuse of approved aid (SNCF / Commission)

124

Factual and legal context The Court of First Instance dismisses the action brought by the Société nationale des chemins de fer française (SNCF) against the Commission’s decision of 9 March 2012 (’Sernam 3 decision’, No 2012/398/EU) and, at the same time, confirms the reasoning followed by the (...)

Jacques Derenne Tax exemptions: The General Court of the European Union recalls that any advantage reducing the burdens which should ordinarily bear on an undertaking’s budget, without being a subvention stricto sensu, must be assessed in the light of Article 107 (1) TFEU (Grèce, Ellinikos Chrysos)

199

Following the bankruptcy of TVX Hellas Gold in 2003, which owned the Kassandra mines, located in or near the Skouries forest, the Greek State bought the assets of the bankrupt company before quickly selling the mines to a newly created company called Ellinikos Chrysos. On 23 February 2011, the (...)

Jacques Derenne Res judicata: The Court of Justice of the European Union confirms, for the second time since the creation of the principle of primacy of EU law, that as far as rules on State aid are concerned, the res judicata principle should be set aside for the primacy of EU law when the exclusive competences of the Commission are at stake (Klausner Holz Niedersachsen / Land Nordrhein-Westfalen)

746

With this judgment of principle, the Court (albeit in a chamber composition only) specifically ruled for the second time since 1958 (after the Lucchinijudgment, case C-119/05, EU:C:2007:434, EU:C:2007:434) on the primacy of European State aid law by granting exclusive powers to the European (...)

Jacques Derenne Public service contracts: The Court of Justice of the European Union annuls a judgment of General Court of the European Union in ruling that the compatibility with the internal market of the aid in question must be assessed in the light of the rules in force at the moment of the Commission’s decision, and not at the moment of the granting of the aid (Andersen)

145

Reminder of facts and procedure Until 2000, Danske Statsbaner ("DSB") was the incumbent rail transport operator in Denmark. Following the abolition of its historical monopoly in 2000, the Danish Ministry of Transport awarded DSB public service transport contracts covering the periods 2000-2004 (...)

Jacques Derenne Purchase agreements of electricity: The Court of Justice of the European Union dismisses an appeal on points of law by confirming the existence of unlawful and incompatible aid as a result of purchase agreements of electricity (Electrabel, Dunamenti Erőmű)

203

The Court dismisses an appeal brought both by Electrabel and by Dunamenti Erőmű against the judgment of 30 April 2014 of the Court of First Instance (Dunamenti Erőmű v Commission, Case C-104/08). T-179/09) which had dismissed Dunamenti Erőmű’s action against a Commission decision of June 2008 (...)

David Dauchez, Jacques Derenne Concept of State aid : The General Court of the European Union partially annuls the Commission’s decision declaring compatible with the internal market measures in favour of a public service broadcaster for having qualified advertising revenues as State aid (TV2 Danmark / Commission)

136

Reminder of facts and procedure Following a complaint by a private broadcaster, the Commission opened an investigation into the financing of TV2 and declared some of the aid compatible with the internal market, with the exception of an amount qualified as overcompensation (decision of 19 May (...)

Daphné Vagogne, Jacques Derenne Private investor test : The General Court of the European Union annuls the Commission’s decision on the ground that the regulator didn’t correctly applied the test of the prudent private investor (Orange)

209

The judgment of the Court of First Instance of 2 July 2015 marks a new stage in the case of the French Government’s public declarations in favour of France Télécom (France Télécom) (see J. Derenne on the Court’s annulment of the Court’s first judgment of 2 July 2015).). Ruling on referral, the Court (...)

David Dauchez, Jacques Derenne Illegal State aid : The European Commission orders France to recover €1.37 billion from the main electricity supplier in France as incompatible aid (EDF)

151

In a decision of 22 July 2015, the European Commission concluded that the tax exemption from which Electricité de France ("EDF") benefited in 1997 when certain accounting provisions were reclassified as capital injections constituted illegal State aid and ordered the French authorities to (...)

David Dauchez, Jacques Derenne Concept of State aid : The General Court of the European Union annuls a Commission’s decision for insufficient statement of reasons regarding the evaluation of State aid amounts contained in the fees granted to an undertaking active in the export insurance credit sector (Sace, Sace BT)

110

Reminder of facts and procedure In February 2011, the Commission opened a formal investigation into four measures in favour of Sace BT, an Italian public-law body transformed into a public limited company in 2004 active in the field of export credit insurance: initial capital endowment of Sace (...)

David Dauchez, Jacques Derenne Special fees regime : The Court of Justice of the European Union confirms that the subsequent increase in the fees applicable in the hydrocarbons’ extraction sector does not materialise a selective advantage for an undertaking who benefited from lower rates in application of a special regime indistinctively applicable to all undertakings operating in the sector and rejects the appeal lodged by the Commission (Commission/MOL)

210

It is no doubt useful to provide a brief review of the very specific legislative and treaty framework at the origin of this case. The case concerns an extension agreement concluded in 2005 between the Hungarian authorities and a mining company, MOL, to allow it to extend the initial permit (...)

Caroline Tixier, Jacques Derenne New aid : The Court of Justice of the European Union considers that the State guarantee granted exclusively to credit institutions for housing aid granted prior to the accession of a Member State to the European Union to certain categories of household constitutes a new ‘State aid’ (OTP Bank)

230

ECJ, 19 March 2015, OTP Bank, Case C-672/13, ECLI:EU:C:2015:185 The Context A Hungarian State decree of 2001 regulated aid to promote access to housing for certain categories of households and provided that it was exclusively for credit institutions to grant and pay loans, to determine the (...)

Caroline Tixier, Jacques Derenne Guarantee - Calculation : The General Court of the European Union rejects the method used by the Commission to calculate the aid element in a guarantee (Pollmeier Massivholz)

231

Trib. EU, 17 March 2015, Pollmeier Massivholz v Commission, Case T-89/09, ECLI:EU:T:2015:153 The context of the case The applicant Pollmeier is a German company active in the hardwood sawmill sector near the Land of Hesse (Germany). In 2007 it lodged a complaint with the Commission alleging (...)

Jacques Derenne, Mélanie Pérez Concept of State aid : The General Court of the European Union considers that the pension payment system of civil servants working for a former monopoly constitutes State aid and rejects the action of the French Republic (France Télécom)

226

Trib. EU, 26 Feb. 2015, France v. Commission, Case T-135/12 - France Telecom The dispute brought before the Court of First Instance concerns the pension payment system for France Télécom staff with civil servant status. That system was amended by a law of 26 July 1996, coinciding with the (...)

David Dauchez, Jacques Derenne Firms in difficulty : The General Court of the European Union dismisses an action against a Commission’s decision which declared capital increase and loans granted to a company in financial restructuring as illegal State aid (Sea France)

249

Trib. EU, 15 Jan. 2015, France v. Commission, Case T-1/12, ECLI:EU:T:2015:17 - Sea France Following financial difficulties encountered by SeaFrance, the latter was admitted to the safeguard procedure in April 2010, and was then the subject of judicial liquidation proceedings. Between 2009 and (...)

David Dauchez, Jacques Derenne Concept of State aid : The General Court of the European Union annuls two decisions of the Commission which qualified the possibility of tax amortisation of financial goodwill for foreign shareholding acquisitions by Spanish companies as State aid (Autogrill España, Banco Santander - Stantusa)

337

A Spanish law of 2001 provides that in the case of the acquisition of a holding by a company taxable in Spain in a foreign company, the goodwill resulting from that holding is deductible in the form of depreciation of the taxable base for corporation tax for which the company is liable. This (...)

David Dauchez, Jacques Derenne Preferential tariff : The General Court of the European Union confirms the decisions adopted by the Commission declaring incompatible with the internal market aid granted in favour of metal producers in the form of preferential electricity tariffs (Alcoa, Portovesme, Eurallumina)

195

Trib. EU, 16 October 2014, Alcoa Trasformazioni v Commission, Case T-177/10 Portovesme v Commission, Case T-291/11. Eurallumina v Commission, Case T-308/11 A decree of February 2004 allowed new undertakings (the subject of Cases T-291/11 Portovesme and T-308/11 Eurallumina) to benefit from a (...)

Jacques Derenne, Jessica Walch-Barton Maritime transport : The Court of Justice of the European Union upholds the judgment of the General Court partially annulling the Commission’s decision in relation to the privatisation of the shipping company operating regular services to Corsica from mainland France (SNCM / Corsica Ferries)

186

The judgment delivered by the Court of Justice on 4 September 2014 marks the epilogue of a long dispute which we had already commented on when the Court of First Instance delivered its decision at first instance (J. Derenne, Concurrences n° 4-2012). It should be recalled that, by judgment of 11 (...)

Jacques Derenne, Mélanie Pérez Amount of the aid : The General Court of the European Union confirms that the aid granted to Greek farmers in compensation of their loss due to adverse weather conditions in the years 2007 and 2008 is incompatible with the internal market and recalls the case law relating to the notion of aid and the exemption pursuant to article 107, paragraph 3, b) TFEU (Greece / Commission)

196

The annotated judgment concerns compensation paid to Greek agricultural producers for adverse weather conditions in the summer of 2007 and autumn 2008. This compensation, paid by an insurance body wholly owned by the Greek State, ELGA, consisted of different components and was partly financed (...)

David Dauchez, Jacques Derenne Regional aid : The General Court of the European Union confirms that measures for the construction and operation of a film studio complex do not fulfill the private investor principle and validates the methodology of evaluation retained by the Commission (Spain / Commission)

95

The Autonomous Community of Valencia invested in the creation of a Ciudad de la Luz (CDL) cinema complex in October 2000. To this end, a public limited company was set up, 75% owned by the Autonomous Community of Valencia through the Sociedad Parque Tematico de Alicante (SPTCV) between 2001 and (...)

Béatrice Charlier-Bonatti, Bruno Deffains, Charles Meteaut, Daniele Calisti, Jacques Derenne, Laurent Benzoni, Suzanne Carval What compensation? Which responsibles parties? (Antitrust damages actions in France and in Europe : Current situation and upcoming changements, Paris, 13 May 2014)

1195

The final panel of the conference held in Paris the 13th May 2014 about the reparation of competitive damages was devoted to the civil liability of the infringers. This panel helped to address various sensitive aspects of a question submitted to several provisions of the directive proposition. (...)

Jacques Derenne, Mélanie Pérez Notion of advantage : The General Court of the European Union recalls the case law of the Court on the notions of advantage and imputability to the State (Dunamenti Erőmű, Tisza Erőmű)

122

[ Trib. EU, 30 April 2014, Dunamenti Erőmű c/ Commission, Case T-179/09Trib. EU, 30 April 2014, Tisza Erőmű v Commission, Case T-468/08 On 30 April 2014, the Tribunal delivered two judgments concerning power purchase agreements in Hungary. Although the two cases are factually linked, as they (...)

David Dauchez, Jacques Derenne Loans without interests : The General Court of the European Union confirms that loans granted by the Hellenic Republic to agricultural groups constituted incompatible State aid (Greece / Commission)

136

Factual and legal context ---- In confirming the Commission’s decision, the Court of First Instance recalls the principles relating to the concept of advantage, the standard of reasoning expected of the Commission in the recovery of aid and sets the limits to the invocability of the principle (...)

Jacques Derenne Recovery : The Court of Justice of the European Union confirms the national judges’ obligation to order either the recovery of an illegal aid or provisional measures in order to protect the interests of the interested parties (Flughafen Lübeck c/ Air Berlin Luftverkehrs-KG)

132

The Grand Chamber of the Court made an order on 4 April 2014 in response to a question referred for a preliminary ruling in the case of Flughafen Lübeck v Air Berlin. It recalls that if national courts could find that a measure does not constitute aid within the meaning of Article 107(1) TFEU (...)

Jacques Derenne, Mélanie Pérez Public institutions : The Court of Justice of the European Union confirms that the implicit guarantees inherent to the status of a public institution of an industrial and commercial nature qualified as an incompatible State aid (France / Commission)

164

Changes in the legal status of La Poste ---- Let us briefly recall the evolution of the legal status of La Poste. By an Act of 2 July 1990 the former Directorate-General for Posts and Telecommunications was split into two legal persons governed by public law: France Télécom and La Poste. By a (...)

Jacques Derenne, Mélanie Pérez New aid: The Court of Justice of the European Union reiterates its case law on the notions of new aid and restriction on competition as well as on the application of the private creditor test (Rousse Industry)

106

In 1996 and 1997, the Bulgarian State granted loans to Rousse Industry AD, a company active in the shipbuilding industry, whose repayment debt had been the subject of a first rescheduling agreement in 2001 with extended repayment terms from 2006 until 2015. As the company failed to meet the (...)

Jacques Derenne, Mélanie Pérez Recovery: The Court of Justice of the European Union clarifies the powers of the national judge in quantifying the amount of aid to recover (Mediaset)

123

Background Let us briefly review the facts of the case. In order to facilitate and accelerate the switchover to digital terrestrial television, Italy granted a public subsidy in 2004 and 2005 to each user of the broadcasting service who bought or rented a decoder for the free-to-air reception (...)

Jacques Derenne, Mélanie Pérez Recovery: The Court of Justice of the European Union reiterates that the only exception to the obligation of implementing recovery decisions without delay is the absolute impossibility of giving effect to a decision (Commission / Italy)

120

A Commission decision of 23 February 2011 had ordered Italy to recover aid linked to the supply of electricity at preferential tariffs to three companies established in Sardinia. Italy is condemned here for not recovering this aid within the time limit. The Court reiterates its traditional (...)

Jacques Derenne Public undertaking : The Court of Justice of the European Union rules for the first time that a national court seized under Article 108 (3) TFEU is obliged to comply with an assessment made by the Commission in a prior decision to initiate the formal investigation procedure with respect to the existence of aid (Deutsche Luthansa c/ Flughafen Frankfurt-Hahn)

162

The Lufthansa’ judgment, as we shall soon call it, concerns one of the many Ryanair’ disputes that are gradually forming the law on State aid in the field of aviation. This judgment is undoubtedly destined to be as well known and cited as the SFEI or Almark preliminary rulings in their respective (...)

Jacques Derenne Compatible aid : The General Court of the European Union dismisses an action against a decision approving an aid by virtue of a compensation of the progressive abolition of advertising on public TV channels under a service of general economic interest (TF1)

153

This case follows the phasing out of advertising on French public service television channels and its compensation through various measures in favour of France Télévisions. Legal Context ---- Law No 2009-258 on audiovisual communication and the new public service television (JORF of 7 March (...)

Jacques Derenne Public service : The General Court of the European Union confirms a decision finding no State aid under Altmark criteria (Orange c/ Iliad c/ Colt Télécommunications France)

297

GCEU, 16.09.2013, Iliad v. Commission, Case T-325/10 GCEU, 16.09.2013, Colt Télécommunications France v. Commission, Case T-79/10 These three judgments have not been joined by the Tribunal but, given their very great similarity (and complexity), they will be examined together, retaining only (...)

David Dauchez, Jacques Derenne Notion of aid: The General Court annuls, for manifest error of appraisal, a decision of the Commission establishing the existence of an advantage in the return on current accounts opened by a public bank (Poste Italiane)

160

Factual and legal background - Complaint and Commission decision An Italian decree of 1945 requires the Italian Post Office (Poste Italiane SpA, Banco Posta for financial services) to transfer the funds collected from its customers to a current account of the Caisse des dépôts et de prêts (of (...)

Cédric Kaczmarek, Jacques Derenne Notion of State aid: The Court of Justice considers that the mandatory voluntary contributions are not a State aid (Doux Elevage SNC et Coopérative agricole UKL-ARREE)

209

The Court’s judgment in this case brings to an end a long debate which had been going on for several years between the French authorities and the Commission at European level and, in France, between the Court of Auditors and the Council of State at national level, concerning the classification (...)

Jacques Derenne Failure to fulfil its obligations: The Court of Justice condemns Italy for non compliance with a European Commission’s decision and recalls the obligations of loyal cooperation bearing on Member States, and those relating to the recovery from bankrupt beneficiaries, within the framework of aid scheme (Italy)

177

CJEU, 21 March 2013, Commission v. Italy, Case C-613/11 This is a classic case of failure to recover illegal and incompatible aid within the time limit laid down in a Commission Decision (2008/92/EC of 10 July 2007 on an aid scheme for the shipping sector in Sardinia). Only a few remarks are (...)

Jacques Derenne Private creditor test: The Court of Justice confirms that, by not comparing the benefits and drawbacks of the various debts recovery procedures opened to a creditor, the European Commission has not fulfilled the private creditor test to establish the existence of State aid (Buczek Automotive)

179

The judgment of the Court of First Instance of 17 May 2011, which partially annulled the Commission’s decision of 23 October 2007 ordering the Buczek Group, which is active in the steel production sector, to repay the unlawful aid allegedly granted to it by Poland (Trib. EU, Judgment of 17 May (...)

Jacques Derenne Waiver of claims: The General Court confirms the European Commission’s analysis further to the inaction by the Bulgarian State to claim since January 2007 the reimbursement of debts owed by an undertaking to which public loans had been granted (Rousse Industry)

131

Trib. EU, 20 March 2013, Rousse Industry v Commission, Case T-489/11 The present case concerns the support granted by the Bulgarian State to Rousse Industry AD, a company active in the shipbuilding industry, in the form of loans in the years 1996 and 1997, the repayment debt of which was the (...)

Jacques Derenne Public statements of the government: The Court of Justice annuls the General Court of UE’s judgment in the case of the public statements in favour of an undertaking in financial difficulty and confirms that the measures conferred an advantage to the undertaking through State resources (Bouygues and Bouygues Télécom, French Republic)

252

CJEU, 19 March 2013, Bouygues and Bouygues Télécom v. European Commission, and Commission v. French Republic, Joined Cases C-399/10P and C-401/10P. The effectiveness of some of the Court’s judgments reflects the irrefutable nature of certain rules. This judgment of the Court is proof of this. In (...)

Jacques Derenne Annulment: The General Court annuls the European Commission’s decision holding compatible with the internal market the public transport service contracts between the Danish Ministry of Transport and DSB (Jørgen Andersen)

146

Trib. EU, 20 March 2013, Jørgen Andersen v Commission, Case T-92/11 Danske Statsbaner ("DSB") is the incumbent rail transport operator in Denmark. Following the abolition of its historical monopoly in 2000, the Danish Ministry of Transport awarded DSB public service transport contracts covering (...)

Jacques Derenne Recovery obligation: The Court of Justice condemns Spain for having failed to comply with a 1998 decision and gives a further example of the Member States’ obligations as regards to the recovery of unlawful aids from bankrupt companies (Spain)

146

CJEU, 24 January 2013, Commission v. Spain, Case C-529/09 This case concerns a Commission decision of 1998 (1999/509) in the Magefesa case, the same one in which the Court delivered a judgment on 11 December 2012 finding that a judgment of the Court had not been complied with, this time in (...)

Jacques Derenne Recovery of unlawful and incompatible aid: The Cour de cassation, the Council of State and the Bordeaux Administrative Court of Appeal confirm in various cases either the impossibility of recovery for time-barred claim by the State or the recovery by virtue of the principles of EU law, including rules on limitation periods applicable to the actions of the European Commission

175

Cass. com, February 26, 2013, No. 11-22029. Cass. com, April 23, 2013, No. 12-19184. CA administrative de Bordeaux, February 5, 2013, n° 12BX00231 CE, 28 December 2012, SAS SIA Industrie, n° 335552 The Bordeaux Administrative Court of Appeal, the Council of State and the Court of Cassation (...)

Jacques Derenne Recovery: The Court of Justice firmly condemns the non-execution by Spain of a judgment declaring that Spain failed to implement a Commission decision ordering the recovery of unlawful and incompatible aid and recalls the recovery conditions in the event that the beneficiary became bankrupt and its activities pursued by another undertaking (Spain)

204

CJEU, 11 December 2012, Commission v. Spain, Case C-610/10 This case unfortunately illustrates two fundamental evils from which the effective application of the state aid rules suffers, and in particular the issue of the recovery of illegal and incompatible aid: on the one hand, the bad faith, (...)

Cédric Kaczmarek, Jacques Derenne SGEI: The General Court annuls a positive Commission decision judging that it should have initiated the formal investigation procedure in view of the serious difficulties in the assessment of the financing scheme of public hospitals in Brussels (CBI)

145

Trib. UE, 7 November 2012, Coordination bruxelloise d’institutions sociales et de santé (CBI) v Commission, aff.T-137/10 The Brussels public hospital affair was already destined to become a real textbook case. After the upheavals due to questions of admissibility following the withdrawal of a (...)

Jacques Derenne Affectation of trade between member States: The General Court dismisses an action for annulment of a decision re-adopted following a previous annulment for insufficient statement of reasons (Italy - Wam Industriale)

129

Trib. EU, 27 September 2012, Italy v. Commission, Case T-257/10 Finally, the General Court dismisses two actions for annulment (one brought by Italy and the other brought by Wam Industriale SpA) against a Commission decision of 24 March 2010 ordering the recovery of unlawful and incompatible (...)

Jacques Derenne Notion - Unlimited guarantee: The General Court confirms that the status of the French postal operator, before its transformation in 2010, conferred to it an implicit and unlimited guarantee, constitutive of a State aid, existing but incompatible (La Poste)

175

Trib. UE, 20 September 2012, France v. Commission, aff.T-154/10 The General Court dismisses an action for annulment brought by France against the Commission’s decision of 26 January 2010 classifying as State aid the unlimited guarantee, albeit implicit, given by the French State to La Poste (...)

Jacques Derenne Altmark case law – National judge role: The French Competition Authority reminds the national judge’s role in State aid and notes that the subsidies do not constitute aid within the meaning of the Altmark jurisprudence

189

EC, 13.07.12, req. no. 347073 In the context of an action for annulment brought against a decree, the Council of State is seised of a plea relating to the failure to notify a subsidy provided for by the contested text. Before examining the existence of the alleged aid and, therefore, the (...)

Jacques Derenne Decision not to raise objections: The General Court confirms the Commission’s position toward an aid granted to France Televisions by the French State (Télévision française 1, Métropole télévision, Canal +)

122

General Court, 10.07.12, Télévision française 1, Métropole télévision, Canal + v. Commission, case T-520/09 As part of a reform of public broadcasting, the French State has decided to phase out advertising on public service television channels. In order to compensate for the loss resulting from this (...)

Jacques Derenne Recovery – Non-execution: The General Court declares that the Hellenic Republic has failed to fulfill its obligation of recovery of an incompatible aid under the Commission’s decision (Hellenic Republic)

194

CJEU, 28.06.12, Commission v. Hellenic Republic, Case C-485/10 A judgment which is, after all, classic and relatively expeditious inasmuch as the Court accepts all the arguments put forward by the Commission in support of its action for failure to fulfil obligations brought by Greece. In the (...)

Jacques Derenne Failure of a Member State to fulfil its obligations: The Court of Justice reiterates that the only exception to the obligation to execute a recovery decision for a Member State is the existence of exceptional circumstances that would make it absolutely impossible to execute the decision and concludes that Italy has failed to meet its obligations (Italy)

180

CJEU, 29 March 2012, Commission v. Italy, case C-243/10 The Court condemns Italy for failing to take all the measures necessary, within the prescribed period, to recover from the beneficiaries the aid granted under the aid scheme declared unlawful and incompatible with the internal market by (...)

Jacques Derenne Private investor test – Serious difficulties: The General Court confirms the Commission decision which authorises the sale of th assets of an airline campany by the Italian Republic and states that the Commission correctly applied the criterion of a private investor (Ryanair/Commission)

208

GCEU, 28 March 2012, Ryanair v. Commission, Case T-123/09 The Irish company Ryanair has brought an action for annulment against two decisions of the European Commission concerning the Italian company Alitalia, 49.9% owned by the Italian State. The first decision which is the subject of the (...)

Jacques Derenne Private investor in a market economy: The General Court confirms the Commission decision which prohibits the State to take account of legal guaranties in internal law when privatising a bank and obliges to consider the price in submitted offers when determining the market price (Land Burgenland and Austria, Grazer Wechselseitige Versicherung)

242

GCEU, 28 February 2012, Land Burgenland and Austria v. Commission, joined cases T-268/08 and T-281/08 GCEU, 28 February 2012, Grazer Wechselseitige Versicherung v. Commission, Case T-282/08 In a decision of 30 April 2008, the Commission had declared incompatible aid granted in connection with (...)

Cédric Kaczmarek, Jacques Derenne SGEI: The European Commission publishes the final version of texts constituting the new SGEI package for the assessment of compensation of SGEIs

368

Commission Decision 2012/21/EU of 20 December 2011 on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic (...)

Jacques Derenne Recovery: The Court of Justice recalls that in the event of bankruptcy, the recovery of an unlawful and incompatible aid may take the form of the registration of the State’s claim in the bankruptcy proceedings provided that the beneficiary has ceased its activity (Italy)

270

CJEU, 13 October 2011, Commission v. Italy, case C-454/09 The Commission had adopted a negative decision against Italy (Commission Decision 2008/697/EC of 16 April 2008 on State aid C 13/07 (ex NN 15/06) implemented by Italy for New Interline). Rescue aid in the form of a guarantee for a bank (...)

Cédric Kaczmarek, Jacques Derenne Market investor principle: The General Court annuls a Commission decision declaring that the sale of a parcel held by a city constituted State aid and sanctions the Commission’s formal assessment (Konsum Nord/Commission)

361

Trib. EU, 13 December 2011, Konsum Nord v Commission, Case T-244/08 It is sometimes surprising how State aid rules are applied in concrete situations to solve problems of an almost daily nature. This is at least illustrated by the case concerning the sale of land by the municipality of Åre (...)

Jacques Derenne Damages action: The Paris Court of Appeal rejects a damages action relying on the loss of the benefit of an aid declared unlawful and incompatible by the Commission (Epta Rack)

370

This judgment of the Paris Court of Appeal, in civil matters, is an illustration of the perfect mastery of the judges in question of fundamental principles, but sometimes poorly applied at national level, of "constitutional" European law and State aid. The case concerned the so-called ’44 (...)

Jacques Derenne Private investor in a market economy: The General Court confirms the Commission decision on stranded costs in Hungary which qualified long-term electricity purchase agreement unlawful and incompatible aid (Budapesti Erőmű)

204

GCEU 13 February 2012, Budapesti Erőmű v. Commission, joined cases T-80/06 and T-182/09 In that judgment the Court of First Instance dismissed the action brought by the Hungarian subsidiary of Electricité de France, Budapesti Erőmű Zrt, seeking the annulment of a Commission decision of 4 June 2008 (...)

Jacques Derenne Privatisation – Air transport sector: The European Commission orders to recover incompatible State aid granted to a Hungarian air carrier in the context of its privatisation (Malév Airlines)

157

Eur. Comm., dec. C(2011) 9316 final, 9 January 2012, on the State Aid implemented by Hungary in favour of Malév Hungarian Airlines, case SA.30584 During the numerous attempts by the Hungarian State to privatise the airline Malév, which have repeatedly failed, eight measures to support the (...)

Cédric Kaczmarek, Jacques Derenne Recovery of an unlawful State guarantee: The Court of Justice judges that the annulment of an unlawful State guarantee could constitute an appropriate measure enabling the reestablishment of the competitive situation prior to the granting of the aid (Residex Capital IV)

363

CJEU, 8 December 2011, Residex Capital IV, box C-275/10 The question referred for a preliminary ruling by the Hoge Raad der Nederlanden, the Netherlands Court of Cassation, is an opportunity for the Court to recall the fundamental principles of the role of the court in the recovery of unlawful (...)

Jacques Derenne New aid - Unlawful aid : The General Court examines the notions of unlawful aid and misuse of aid, of legitimate expectation, of incentive effect and application of de minimis thresholds with respect to aid recovery (Regione autonoma della Sardegna)

392

GCEU, 20 September 2011, Regione autonoma della Sardegna v. Commission, joined cases T-394/08, T-408/08, T-453/08 and T-454/08 Background to the case ---- In 1998, the Regione autonoma della Sardegna ("Region of Sardinia") introduced a series of investment aid measures for companies in the (...)

Jacques Derenne Preliminary reference: The Court of Justice, upon a preliminary reference, examines the specific cases of cooperatives with respect to the conditions under which a tax measure can be categorised as State aid (Paint Graphos)

438

CJEU, 8 September 2011, Paint Graphos, joined cases C-78/08 to C-80/08 Reference for a preliminary ruling by the Italian Court of Cassation was made to the Court of Justice for a preliminary ruling in three joined cases on the interpretation of the concept of aid in the context of a dispute (...)

Jacques Derenne Appeal - Protection of the environment: The Court of Justice annuls a judgment of the General Court and reminds that Article 107 (1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (Netherlands)

373

CJEU, 8 September 2011, Commission v. The Netherlands, Case C-279/08 P Commission decision declaring aid compatible annulled by the Court of First Instance The Dutch authorities had notified to the Commission an emission trading scheme for nitrogen oxides (hereinafter ’the measure’). The scheme (...)

Jacques Derenne Appeal - Selective advantage: The Court of Justice confirms the General Court’s ruling on the rejection of an action for the annulment of a Commission decision ordering the recovery of incompatible aid for the purchase of digital terrestrial terminals (Mediaset)

357

CJEU, 28 July 2011, Mediaset v Commission, Case C-403/10 P The judgment of the Court of First Instance in Case T-177/07 has already been commented upon (see Concurrences No. 3-2010, pp. 142-144) and a brief review of the facts of the case will suffice. In order to speed up the switchover to (...)

Jacques Derenne Airport charges: The Council of State annuls as constituting unlawful aid, the decision of the Chamber of Commerce and Industry of Marseille-Provence which set up airport charges advantageous to low cost airlines at Marseille airport (Air France)

726

EC, 26 July 2011, Air France e.a., n° 329818 (See also, infra, "Public Sector" column, obs. J.-Ph. Kovar) This decision is a further step in the dispute concerning airport charges at Marseille airport between Air France and the Marseille-Provence Chamber of Commerce and Industry, holder of the (...)

Jacques Derenne Appeal - Training aid: The Court of Justice confirms the a General Court’s ruling in the a matter involving training aid granted by Sachsen Freistaat and the Land of Sachsen-Anhalt to DHL (Freistaat Sachsen and Land Sachsen-Anhalt)

366

CJEU, 21 July 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, Case C-459/10 P Appeal brought on 8 July 2010 by Freistaat Sachsen and the Land of Sachsen-Anhalt against the judgment of the General Court of 8 July 2010 (T-396/08, see Case T-396/08, see Case T-396/08). Concurrences (...)

Jacques Derenne Aid to airports and air transport companies: The European Commission decides that an exemption from air passenger tax does not constitute a State aid (Schipol Group and Air France-KLM)

207

Commissioner, Dec. C(2011) 4933, 13 July 2011, Air Transport - Exemption from air passenger tax - Netherlands (Schiphol Airport and Air France-KLM), case SA.25254 Following the lodging of a complaint by Ryanair in 2008 against alleged illegal aid of EUR 400 million per year granted to Schiphol (...)

Jacques Derenne Tax reduction: The European Commission decides that an arrangement between the Belgian tax authorities and a Belgian company does not constitute a State aid (Umicore)

744

Eur. comm. dec. C(2010) 2538 final, 26 May 2010, Tax settlement in favour of Umicore (ex "Union Minière") - Belgium, case C 76/2003 (ex NN 69/2003) Umicore has been the subject of an investigation by the tax authorities in several Member States. Following this investigation, the Belgian Special (...)

Jacques Derenne Exchange rate guarantee: The European Commission decides that a system to cover the exchange rate risk for aeronautic suppliers does not constitute State aid (“Aero 2008”)

637

Eur. comm. dec. C(2011) 1378 final, 8 March 2011, state guarantee, put in place to cover the exchange rate risk for aeronautic suppliers (Aero 2008) - France, case C 18/2010 The Commission has initiated ex officio proceedings in respect of a guarantee implemented by France in favour of the (...)

Jacques Derenne Concept of State aid: The Council of State rules that the extension of a voluntary contribution on a legal basis (article L. 632.2 of the French rural Code) does not constitute a State aid and cannot be considered illegal aid (Fédération des entreprises du commerce et de la distribution)

691

EC, 16 February 2011, Federation of Commerce and Distribution Enterprises, No. 301333 The French association for the valorisation of the products and professional sectors of horticulture and landscape has been recognised by the competent public authorities as a national interprofession for the (...)

Jacques Derenne Financial and economic crisis: The European Commission extends the temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis

925

Communication from the Commission, Temporary Union framework for State aid measures to support access to finance in the current financial and economic crisis, OJ C. 6, 11 January 2011, p. 5. Against the background of the current financial and economic crisis, the Commission adopted at the end (...)

Jacques Derenne Recovery – Res judicata: The Court of Justice considers that the principle of res judicata can prevent recovery of unlawful and incompatible aid unless the national authorities did not take all the measures possible to obtain repayment (Slovakia)

367

CJEU, 22 December 2010, Commission v. Slovakia, case C-507/08 Un recours en manquement a été introduit par la Commission à l’encontre de la République slovaque sur le fondement de l’article 260 TFUE pour avoir manqué aux obligations qui lui incombent en vertu de la décision 2007/254/CE (Comm. déc., 7 (...)

Jacques Derenne Recovery procedure: The Court of Justice recalls that national courts cannot order interim measures suspending the recovery order unless they strictly comply with the conditions set out by European law to this effect (Italy)

700

CJEU, 22 December 2010, Commission v. Italy, Case C-304/09 The present case is a reminder of the prohibition, in reality absolute, for a court to suspend and delay the recovery of unlawful and incompatible aid for any reason whatsoever, unless the strict conditions of European case law for the (...)

Jacques Derenne Recovery – Res judicata : The ECJ considers that, whereas res judicata can justify the implementation of the recovery obligation of an illegal and incompatible State aid, it cannot justify the national authorities not to use all their available tools to make this recovery effective (Slovakia)

620

CJEU, 22 December 2010, Commission v. Slovakia, Case C-507/08 An action for failure to fulfil obligations was brought by the Commission against the Slovak Republic on the basis of Article 260 TFEU for failure to fulfil its obligations under Decision 2007/254/EC (Commission Dec. 2007/254/EC), 7 (...)

Jacques Derenne Compensation of the costs of public service: The General Court rejects actions for annulment of the Commission’s decision declaring the financing system of the Dutch public broadcasters incompatible with the internal market (The Netherlands and NOS)

801

GCEU, 16 December 2010, The Netherlands and NOS v. Commission, joined cases T-231/06 and T-237/06 On 16 December 2010, the General Court dismissed two actions for annulment (brought by the Kingdom of the Netherlands and the Nederlandse Omroep Stichting (NOS)) against Commission Decision (...)

Jacques Derenne Value of land: The Court of Justice rules on calculation methods for determining the value of agricultural and forestry land in the context of a privatisation plan (Seydaland)

852

CJEU, 16 December 2010, Seydaland, case C-239/09 The relevance of this case is the question raised of the assessment of the market value of a sale of public land and thus the assessment by the Court of Justice of the Commission’s 1997 communication on this point (Commission communication of 10 (...)

Jacques Derenne Financial crisis: The European Commission extends by 2011 the crisis-related State aid rules for banks that allow Member States to preserve financial stability and to ease access to finance for the real economy but with some changes

887

Communication from the Commission on the application of State aid rules to State aid to banks in the context of the financial crisis as from 1 January 2011, OJEU No C 329, 7 December 2010, p.7. In order to prepare the European Union for a gradual return to normal market functioning, the (...)

Jacques Derenne SGEI - Advantage: The ECJ upholds a General Court’s judgment in that it had rightly noted that the Commission has failed to verify if the total amount of payments made by the German authorities exceeded the total amount of the net additional costs for the provision of SGEIs in the postal sector (Deutsche Post)

1503

CJEU, 2 September 2010, Commission v Deutsche Post, C-399/08 P The liberalisation of the postal sector reaches its final phase in January 2011 after more than 25 years of very slow progress (see, in particular, the first "postal cases" in the Commission’s competition reports in 1986, the Postal (...)

Jacques Derenne Recovery: The Labour Court of Appeal of Brussels rules that the recovery of the unlawful aid under the «Maribel bis» et «Maribel ter» schemes cannot be required from the purchaser or from the sold entity if the advantage stayed with the seller (Plastuni Operations)

867

On 3 June 2010, the Labour Court of Brussels ("the Court") delivered a judgment reversing a judgment of 8 November 2002 of the Labour Court of Brussels in a case concerning the recovery of aid granted under the Maribel bis and ter schemes. In 1999 the Court of Justice dismissed an action by (...)

Jacques Derenne State aid for the environment: The European Commission approves € 10 million aid by the Netherlands to Nuon’s Energy Sourcing NV for its energy-saving CO2 capture project (Nuon Energy Sourcing)

1130

European Commission, Press release IP/10/1053 of 17 August 2010, The Netherlands - Restructuring aid to AEGON, Case N 372/2009, Pursuant to Article 107(3)(c) TFEU and its Guidelines on State aid for environmental protection (OJEU No C 82 of 1 April 2008, p. 1, hereinafter the ’Guidelines’; see (...)

Jacques Derenne Restructuring aid: The European Commission approves the restructuring plan of the cargo activities of the Belgian public railway operator (Cargo activities of SNCB)

851

Eur. Comm., dec. C(2010) 3218, 26 May 2010, Cargo activities of SNCB - Belgium, N 726/2009 The full non-confidential text of the May 2010 decision (adopted without opening the formal investigation procedure) was recently published on DG Competition’s website and it is therefore appropriate to (...)

Jacques Derenne Role of national courts - Recovery - Exceptionals circonstances: The ECJ recalls the fundamental obligations of national courts in presence of unlawful aid (CELF)

1742

CJEU, 11 March 2010, Centre d’exportation du livre français (CELF), Ministre de la Culture et de la Communication v. Société internationale de diffusion et d’édition (SIDE), Case C-1/09. This is the CELF II case. A judgment which was no doubt unnecessary in view of the obvious answers but not (...)

Jacques Derenne Private investor test: The General court dismisses the action in annulment introduced by a German federation of private banks against a Commission decision declaring only partially incompatible the transfer of public assets to a regional bank on grounds of a correct application of the private investor test by the Commission (Bundesverband deutscher Banken)

2308

General Court, 3 March 2010, Bundesverband deutscher Banken v. Commission, Case T-163/05, This case concerns one of the ’Landesbanks’, Landesbank Hessen-Thüringen Girozentrale (the Landesbank), which has a status equivalent to that of German banks that benefited from individual measures in the (...)

Jacques Derenne Professional tax: The CFI dismisses a “net advantage” approach relying on a global compensation between increased and reduced levies with respect to the professional tax (France Télécom )

2096

CFI, 30 November 2009, France and France Télécom v Commission, cases T-427/04 and T-17/05 This judgment of the Tribunal puts an end (provisionally? At the time of writing, the time-limit for appeal has not yet expired) to the long dispute between, on the one hand, the Commission and, on the (...)

Jacques Derenne Exemption regulations: The CFI confirms the control powers of the EC Commission to request all information useful to assess the compliance with exemption regulations (Germany)

1881

CFI, 25 November 2009, Germany v Commission, Case T-376/07 This case concerns the contestation of a Commission decision ordering Germany to provide information on two state aid schemes covered by the then applicable exemption regulation on aid to SMEs (Regulation No 70/2001, since replaced by (...)

Jacques Derenne Bank - New restructuring plan: The European Commission approves the new restructuring plan of a mortgage bank following its nationalisation in 2008 (Northern Rock)

1084

Eur. Comm, Dec. 2010/262/EC, 28 October 2009 on the State aid implemented by the United Kingdom for Northern Rock, case C 14/08, OJ L112, 5 May 2010, p. 38. This is a case decided in October 2009, but the publication of the text of the decision in the Official Journal recently justifies a more (...)

Jacques Derenne Selectivity criteria: The CFI clarifies its approach on the selectivity criteria in the context of fiscal measures adopted by the basque countries (Diputación Foral de Álava et Gobierno Vasco)

1897

CFI, 9 September 2009, Diputación Foral de Álava and Gobierno Vasco and Others v Commission, Joined Cases T-230/01 to T-232/01 and T-267/01 to T 269/01. The Historical Territories of Álava, Vizcaya and Guipúzcoa (hereinafter the ’Basque Territories’) have autonomous competence to organise the tax (...)

Jacques Derenne Degendorff case law: The CFI confirms the wide scope of application of the Degendorff case law without distinction between individual aid and aid scheme (ACEAElectrabel)

2063

CFI, 8 September 2009, ACEAElectrabel v. Commission, Case T 303/05 This case concerns aid paid in the context of the construction of a new district heating network in the region of Rome (Torrino-Mezzocammino) by ACEA (a former municipal undertaking of Rome), in joint venture with Electrabel (...)

Jacques Derenne European State Aid Law and Policy

2886

This third edition of Conor Quigley’s highly acclaimed book offers the most comprehensive and detailed examination of European State Aid law. The book is designed to provide lawyers, regulators, public officials and students with a definitive statement of the law and practice of State Aid. At (...)

Jacques Derenne Restructuring aid - Privatization: The European Commission approves a restructuring aid granted to an airline company in the context of its privatisation at the condition that the undertaking reduces its global capacity and complies with the conditions of the Commission merger decision (Austrian Airlines)

1341

Eur. com. 2010/137/EC of 28 August 2009, Austria Austrian Airlines - Restructuring plan, Case C 6/2009 (ex. N 663/2008), OJEU No L. 59 of 9 March 2010, p. 1. The case is interesting because it mixes merger law and State aid law on certain points, in the particular context of the takeover of (...)

Jacques Derenne Restructuring measures for banks: The European Commission publishes new guidelines concerning restructuring measures in the financial sector concerning banks having benefited from State aid in the context of the financial crisis

2308

Commission Communication "The return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules", OJ C195, 19 August 2009, p.9. This latest Communication from the European Commission on state aid to financial institutions (...)

Cédric Kaczmarek, Jacques Derenne Rescuing and restructuring State aid: The European Commission decides the prolongation of the guidelines on rescuing and restructuring firms in difficulty

3035

EC. Comm, 2 July 2009, Extension of the Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty. The 2004 Community Guidelines on State aid for rescuing and restructuring firms in difficulty expired on 9 October 2009. Recognising that the economic crisis has (...)

Jacques Derenne Recovery of financial operation: The CFI partially annuls the EC Commission decision to the extent that it ordered recovery of financial operation ordered by national judge having jurisdiction in insolvency matters (Maas and Groenewegen)

1882

CFI, 1 July 2009, Maas and Groenewegen (KG Holding) v Commission, Case T-81/07 to T-83/07. In this judgment, the facts of which are highly complex, the Court of First Instance clarifies certain aspects relating to the rules applicable to State aid granted to undertakings declared bankrupt. (...)

Jacques Derenne Existing aid: The CFI declares inadmissible the action against a rejection of a complaint on the ground that the aid in question would constitute existing aid (Nya Destination Stockholm Hotell & Teaterpaket)

2286

CFI, 9 June 2009, NDSHT Nya Destination Stockholm Hotell & Teaterpaket AB v Commission, Case T-152/06 This judgment is the subject of a commentary in the "Procedure" section of this issue.. However, we would like to make a few comments in light of what we believe is a questionable approach (...)

Cédric Kaczmarek, Jacques Derenne Effect on trade/Distortion of competitions: The ECJ upholds the approach of the CFI judging that the European Commission has not sufficiently stated its reasons relating to the existence of an effect on trade and a distortion of competition resulting from an export State aid (Wam)

2978

ECJ, 30 April 2009, Commission v. Italy and Wam, Case C-494/06 P. An Italian company, Wam SpA, had received two aid measures in the form of soft loans for the implementation of market penetration programmes in several Far Eastern countries. I. Commission Decision of 19 May 2004 Following a (...)

Cédric Kaczmarek, Jacques Derenne Aid to ports: The European Commission enacts fiscal measures in favour of the port sector and opens the in-depth procedure calling for comments of interested parties (French ports)

2309

EC. Comm, 8 April 2009, France - Fiscal measures in favour of the port sector, case C 13/2009 (ex N 614/08), opening of the in-depth procedure, OJ C122, 30 May 2009, p. 16. The Commission has initiated the formal investigation procedure concerning the tax measures in favour of the port sector (...)

Cédric Kaczmarek, Jacques Derenne Regional aid - Employment aid: The ECJ clarifies the method concerning the calculation of created jobs within the meaning of the Community Guidelines on aid for employment (Lodato Gennaro/INPS)

2173

ECJ, 2 April 2009, Lodato Gennaro & C. SpA v. INPS, case C-415/07 The Court specifies the calculation method applicable to State aid for job creation, as detailed in the guidelines on aid to employment and the guidelines on national regional aid, when it comes to identifying the number of (...)

Jacques Derenne Reduction of UMTS licence fee: The ECJ confirms that, within the framework of the award of the UMTS licences in France, the reduction of the payments owed by some telecommunications operators does not constitute State aid (Bouygues Télécom)

2788

ECJ, 2.4.09, Bouygues and Bouygues Télécom v. Commission, Case C-431/07 P, "UMTS licences". In this case, the Court confirmed the judgment delivered by the Court of First Instance on July 4, 2007 which dismissed an action for annulment brought by Bouygues and Bouygues Télécom against a decision of (...)

Jacques Derenne Operating aid: The CFI rules that the European Commission committed a manifest error of assessment when considering that the aid to counteract competition paid to German shipyards constituted an operating aid that should be exclusively affected to cover losses from shipbuilding contracts (Aker Warnow Werft and Kvaerner)

2128

CFI, 10.3.09, Aker Warnow Werft and Kvaerner v. Commission, Case T-68/05 Support for the Community’s maritime sector and in particular for its shipyards continues to be a priority for the Commission, as illustrated by the prolongation of the Framework on State aid to shipbuilding until 2011 or (...)

Jacques Derenne State ressources - Advantage: The ECJ rules on the obligation for television operators to earmark a certain percentage of their operating revenue for the pre-funding of European cinematographic films, 60% of that funding being reserved to the production of works of which the original language is one of the official languages of Spain, does not amount to State aid (UTECA)

2486

ECJ, 5.3.09, Unión de Televisiones Comerciales Asociadas (UTECA) v. Administración General del Estado, case C-222/07 Although classified in the category "freedom to provide services" on the Court’s website, the UTECA judgment is nonetheless of some interest from the point of view of State aid law (...)

Jacques Derenne State Aid - Role of national Courts : The European Commission issues guidance on the role of national courts in enforcing State aid rules and on their cooperation with the Commission

3117

EC Commission, 25 February 2009, Notice on the application of State aid rules by national courts, OJEU C.85, 9 April 2009, p. 1. At a time of economic and financial crisis when the examination of state aid measures is an important part of the European Commission’s resources, the European (...)

Jacques Derenne Recovery: A German Court of Appeal, in the absence of an European Commission decision declaring the aid measures incompatible, rejects on grounds of inadmissibility the action brought by an air transport operator, which demanded the recovery by an airport of the aid awarded to a competitor (Lufthansa/Flughafen Frankfurt)

2264

CA Koblenz, 4th civil court, 25 February 2009, Lufthansa AG v. Flughafen Frankfurt Hahn GmbH, aff. 4 U 759/07, OLG Koblenz 4. Zivilsenat The German national courts are particularly cautious (to put it mildly) when it comes to analysing the standing of competitors of a beneficiary of aid (...)

Jacques Derenne Crisis - Temporary framework : The European Commission amends its "temporary framework" in order to take into account State aids remedying to the financial and economic crisis

3009

EC Comm, 25.2.09, Communication amending of the Temporary framework for State aid measures to support access to finance in the current financial and economic crisis, consolidated version published in OJ C83 , 07.04.2009 After approving, on the basis of the "Temporary Framework", various (...)

Jacques Derenne Investigation procedure - Altmark test: The CFI clarifies the circumstances in which the European Commission is bound to initiate the formal investigation procedure and uses the Altmark test as a benchmark to assess the existence of serious difficulties (Deutsche Post - DHL)

3128

CFI, 10 February 2009, Deutsche Post AG and DHL International v Commission, Case T-388/03 In that judgment, the Court of First Instance had to rule on two important aspects of the State aid control procedure, namely (i) the conditions under which the Commission is obliged to initiate the (...)

Jacques Derenne CELF case law: The Council of State issues a new request for preliminary ruling asking if the national court can stay recovery in case of the absence of a positive Commission decision and in the exceptional circumstances of the CELF case (Centre d’Exportation du Livre Français et Ministre de la culture et de la communication)

4223

CE, 19 December 2008, Centre d’Exportation du Livre Français (CELF) and Minister of Culture and Communication, No. 274923 and 274967 A new and predictable stage is added to the many episodes of CELF case law, which now falls within the scope of the "test case". CELF ruling of 2008 It will be (...)

Jacques Derenne National court’s role: The ECJ specifies the conditions under which a national judge may examine the claim of a State aid recipient concerning the amount of the latter over a period antecedent to the decision of the Commission declaring the aid compatible (Wienstrom)

2916

ECJ, 18 December 2008, Wienstrom GmbH v Bundesminister für Wirtschaft und Arbeit, Case C-384/07. Reference for a preliminary ruling by the Court of Justice of the European Communities (ECJ, 12 February 2008, Case C-199/06 - CELF).not yet published in the ECR - see new CELF case (...)

Jacques Derenne Private investor principle: The CFI applies the private investor test to a regional entity and annuls a Commission decision declaring incompatible measures of the Walloon region in favour of Ryanair (Ryanair)

5240

CFI, 17 December 2008, Ryanair Ltd v Commission, Case T-196/04 1. Low cost airlines The name of the low-cost airline Ryanair has now become emblematic in the application of State aid law (and seems to become emblematic in the field of mergers). Faced with the commercial success of this (...)

Jacques Derenne Rescuing and restructuring aid : The European Commission decides that the rescuing and restructuring aid granted to Srem constitutes an aid compatible with the common market (Odlewnia Teliwa «Srem»)

1726

EC Comm, 10 December 2008, Commission authorises PLN 24 million ( 6.2 million) aid to Polish foundry Odlewnia Żeliwa "Śrem" , box C52/2006 The Commission had initiated the formal investigation procedure under Article 88(2) EC on restructuring aid granted to Srem, a Polish metal company. Poland (...)

Jacques Derenne Financial crisis: The European Commission isues a communication on limitation of aid to the minimum necessary and safeguards against undue distortions of competition (Recapitalisation of financial institutions)

2611

EC Comm, 5 December 2008, Communication - Recapitalisation of financial institutions in the current financial crisis: limitation of the aid to the minimum necessary and safeguards against undue distortions of competition, OJ C10, 05.01.09, p. 2. The financial crisis and the way it is being (...)

Jacques Derenne 295 Crisis - Rescue and restructuring aid: The European Commission approves capital injection in a bank both on the principles of the EU Community guidelines on rescue and restructuring aid and the banking communication (Fortis)

2670

EC Comm, 3.12.08, Restructuring aid in favour of Fortis Bank and Fortis Bank Luxemburg, case NN42/2008 - NN46/2008 - NN53/A/2008 The publication of the non-confidential version of the Fortis decision on DG COMP’s website provides further details of the case, which is already well known to (...)

Jacques Derenne Notification: The Council of State restates that the powers of national Courts do not extend to the opportunity to notify an aid, but are limited to sanction the violation of Art. 88.3 EC, i.e., the violation of the notification obligation (Comité national des interprofessions des vins à appellations d’origine)

2847

EC, Ass. 24 October 2008, Comité national des interprofessions des vins à appellations d’origine e.a., No. 282920. This judgment of the Conseil d’État concerns an action for misuse of powers brought by the Comité national des interprofessions des vins à appellations d’origine and other (...)

Jacques Derenne Bank’s saving certificates : The European Commission decides that the placement of a bank’s saving certificates via a public bank does not constitute State aid (Poste Italiane)

1837

EC Comm, 21.10.2008, on a State aid scheme implemented by Italy to remunerate Poste Italiane for distributing postal savings certificates, case C 49/06 (ex NN 65/06), no aid; OJ L189, 21 July 2009, p. 3. In this case, a first decision had been issued concerning the savings books distributed by (...)

Christophe Giolito, Jacques Derenne Global financial crisis: The European Commission releases a communication on the application of State aid rules to measures taken in relation to banks and financial institutions in crisis (Current global financial crisis)

3902

EC Comm, 13 October 2008, Communication on The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis, (2008/C 270/02) By adopting these guidelines, the Commission has honoured, in a very short period of (...)

Jacques Derenne Private investor: The CFI reminds the conditions of application of the 1999 guidelines on State aid for rescuing and restructuring firms in difficulty and applies the private investor test for participation and guarantees granted to enterprises in difficulty (Kahla/Thüringen Porzellan)

3200

CFI, 24 September 2008, Kahla/Thüringen Porzellan GmbH v. Commission, Case T-20/03 Adopting a very conventional approach, the Court of First Instance agreed with the Commission on the application of the 1999 rescue and restructuring guidelines (Community guidelines on State aid for rescuing and (...)

Jacques Derenne Selective nature: The ECJ recalls that a measure conferring an advantage on a limited part of the territory of a Member State does not constitute in itself State aid, provided that the territory enjoys a sufficient degree of autonomy from the central government (UGT-Rioja)

4303

ECJ, 11 September 2008, Unión General de Trabajadores de La Rioja (UGT-Rioja) and Others v Juntas Generales del Territorio Histórico de Vizcaya, and Others, Case C-428/06 to C-434/06. In this judgment, the Court returned to the widely debated question of whether or not measures taken by regional (...)

Agnès Maitrepierre, Alain Ménéménis, Amandine Zelenko, Anne Fort, Carine Soulay, Christian Lambert, Christopher Bellamy QC, David Spector, Denys de Bechillon, Emmanuel Glaser, Eric Ginter, François Tanguy, Guylain Clamour, Jacques Biancarelli, Jacques Derenne, Jean-Christophe Moraud, Jean-Claude Bonichot, Jean-Louis Colson, Jean-Marc Sauvé, Jean-Yves Chérot, Laurent Richer, Marie-Christine Lepetit, Marie-Dominique Hagelsteen, Mario Monti, Philippe Martin, Pierre-François Racine State Aid Colloquium, 14 March 2008

10162

TABLE OF CONTENTS OPENING REMARKS Mr Jean-Marc SAUVÉ, Vice-President of the Conseil d’Etat Mr Mario MONTI, Former European Commissioner for Competition, President of the Bocconi University of Milan IS STATE AID CONTROL POLICY A COMPETITION POLICY? Introduction: Mrs Marie-Dominique (...)

Jacques Derenne, Jean-Yves Chérot Challengeable act: The ECJ holds that the administrative filing of a complaint relating to an alleged unlawful aid constitutes an act likely to be challenged under Article 230 EC and annuls an order of the CFI which declared inadmissible a request for the annulment of a complaint rejection (Athinaïki Techniki)

3458

ECJ, 17 July 2008, Athinaïki Techniki AE v Commission, Case C-521/06 P. This judgment of the Court of Justice deserves attention because it differs so much from the position adopted by the Court of First Instance in opening up the admissibility of the actions of complainants whose complaints (...)

Jacques Derenne Preliminary phase: The ECJ confirms that the legality of a decision not to raise objections against a State aid must be appraised in light of the information available to the Commission at the time of the examination procedure (Nuova Agricast Srl/Ministero delle Attività Produttive)

3511

ECJ, 15 April 2008, Nuova Agricast Srl v. Ministero delle Attività Produttive, case C-390/06 The judgment follows a preliminary ruling on the validity of a Commission decision not to raise objections to a new aid scheme for investment in the less-favoured regions of Italy. This is the second (...)

Jacques Derenne Notion of economic activity: The EFTA Court applies a strict interpretation of the economic activity requirement basing its interpretation on Community case law issued from the freedom to provide services (Private Barnehagers Landsforbund)

4620

EFTA Court, 21 February 2008, Private Barnehagers Landsforbund v. EFTA Surveillance Authority, Case E-5/07 This case decided by the EFTA Court is noteworthy for its treatment, in the context of an aid case, of the concept of economic activity, which must characterise the undertaking within the (...)

Jacques Derenne Banking sector: The European Commission approves one rescue aid and decides to initiate the formal investigation with regard to restructuring aid granted to banks following the subprime crisis (Northern Rock, IKB, Sachsen LB)

3779

EC Comm, 27 February 2008, Restructuring aid to IKB, Germany, case C 10/2008, opening of an in-depth investigation EC Comm, 27 Februray 2008, Restructuring Aid to Sachsen LB, Germany, case C 9/2008, opening of an in-depth investigation EC Comm, 5 December 2007, Restructuring aid to Northern (...)

Jacques Derenne Recovery of State aid: The European Commission provides guidance to Member States as to how to achieve a more immediate and effective execution of recovery decisions

3505

Notice from the Commission - Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid, OJEU C 272, 15 November 2007, p. 4-17. The European Commission adopted on 25 October 2007 a Notice on the implementation of "Decisions (...)

Jacques Derenne Recovery: The ECJ firmly confirms the principle of recovery obligations and applies, for the first time, Art. 10 EC to reinforce the pressure on Member States (France)

3327

ECJ, 18 October 2007, Commission v. France, case C-441/06 This judgment should be taken into account for the autonomous application of Article 10 EC by the Court. On 2 August 2004, the Commission took a decision in which it ordered France to recover State aid granted to France Télécom (business (...)

Jacques Derenne Competence of the EC - Guidelines: The CFI rules that, by adopting the guidelines on State aid for environmental protection, the EC did not deprive itself of the possibility to adopt a decision on the basis of Art. 87.3 c) CE (Eurima)

3361

CFI, 20 September 2007, Fachvereinigung Mineralfaserindustrie eV Deutsche Gruppe der Eurima - European Insulation Manufacturers Association v. Commission, Case T-375/03 A measure to promote the use of insulation materials produced from renewable raw materials has been notified to the (...)

Jacques Derenne Reimbursement: The ECJ holds that the only defence available to oppose a decision to reimburse incompatible State aids is absolute impossibility to properly implement the EC’s decision (Spain)

3538

ECJ, 20 September 2007, Commission v. Kingdom of Spain, case C-177/06 Three Basque provinces have adopted tax measures to encourage business creation (exemption from corporate tax for ten consecutive tax years). The Commission has adopted three decisions in which it classifies these measures (...)

Jacques Derenne Review of the EC margin of discretion: The CFI rules that when the Commission has a wide discretion, judicial review of the manner in which that discretion is exercised is confined mainly to establish that the decision is sufficiently motivated (Olympiaki Aeroporia Ypiresies)

4499

CFI, 12 September 2007, Olympiaki Aeroporia Ypiresies AE v Commission, Case T-68/03 The Court of First Instance partially annulled the Commission’s decision of 2002 on certain new aid granted by the Greek authorities to OA (at that time Olympic Airways) but confirmed the decision in so far as (...)

Jacques Derenne Reimbursement: The CFI holds that the European Commission may not impose an obligation to repay, even jointly and severally, a fixed part of the amount of the aid declared to be incompatible, where the transfer of State resources is hypothetical (MTU Friedrichshafen)

4571

CFI, 12 September 2007, MTU Friedrichshafen GmbH v Commission, Case T-196/02 This judgment seems to confirm the possibility of an order by the Commission for joint and several repayment of aid, provided that the Commission establishes a real transfer of State resources to the undertaking which (...)

Jacques Derenne Legitimate expectation: The CFI rules that the Commission raised, by declaring an aid scheme similar to the one in question compatible with the common market, an expectation that the aid scheme in question was not prohibited (Koninklijke Friesland Foods)

3675

CFI, 12 September 2007, Koninklijke Friesland Foods NV v Commission, Case T-348/03 This is one of the few aid cases in which the principle of legitimate expectations has been successfully invoked. The Dutch Act of 13 December 1996 amending the Corporation Tax Act provides for a special scheme (...)

Jacques Derenne EC liability: The CFI rules that a company cannot make good its insolvency for the purpose of State aid if a diligent and prudent company would not have declared to be insolvent (Denys Bouychou)

4149

CFI, 19 July 2007, Denys Bouychou v. Commission, Case T-344/04. CFI, 19 July 2007, FG Marine v Commission, Case T-360/04. Remedies based on non-contractual competition liability are very rare. The Schneider Electriccase has recently been decided (Case T-351/03) and judgment is awaited in the (...)

Jacques Derenne Action for failure to enforce a negative decision: The ECJ confirms its case law relating to the unique plea of defence likely to be raised by a State against an action for failure to enforce a negative decision (Spain)

4140

ECJ, 14 December 2006, Commission v. Kingdom of Spain, Cases C-485/03 to C-490/03 This judgment of the Court follows actions for failure to fulfil obligations brought by the Commission against Spain under Article 88(2) EC for failure to implement a series of decisions declaring aid schemes (...)

Jacques Derenne Selectivity: The ECJ holds that the selective effect of a measure must be appraised within a regional reference framework if this measure has been adopted by a regional or local authority in the exercise of sufficiently autonomous powers (Portugese Republic v Commission)

4039

ECJ, 6 September 2006, Portugal v. Commission, Case C-88/03 That judgment is the first in which the Court answers the question whether a measure which provides for a more favourable rate of tax for a certain geographical area of a Member State than that in force at national level must be (...)

Jacques Derenne Statement of reasons: The CFI holds that, in State aid proceedings, the European Commission must show sufficiently clearly the link between the principles set out and the factual elements reported by the Commission (République italienne v. Commission)

4155

CFI, 6 September 2006, Italian Republic and Wam SpA v Commission, cases T-304/04 and T-316/04. This surprising judgment of the Court of First Instance throws doubt on well-established case law on the classification of aid because of the effects of a measure reinforcing (or likely to reinforce) (...)

Jacques Derenne Rescue and restructuring aid: The CFI confirms the absence of proof of the necessary nature of a rescue and restructuring aid on the basis of the information available to the European Commission (Schmitz-Gotha Fahrzeugwerke)

3945

The Court of First Instance of the EC confirms the absence of evidence of the necessity of rescue and restructuring aid on the basis of the information available to the Commission at the time of the adoption of its decision. CFI, 6 April 2006, Schmitz-Gotha Fahrzeugwerke v. Commission, Case (...)

Antoine Gosset-Grainville, Denis Samuel Lajeunesse, François Souty, Frédéric Jenny, Guillaume Cerutti, Hubert Legal, Jacques Barrot, Jacques Derenne, Jacques-Philippe Gunther, Jean-Patrice de La Laurencie, Jean-Yves Chérot, Laurence Idot, Marc van Hoof, Marie-Dominique Hagelsteen, Nicola Pesaresi, Valérie Rabassa, Xavier de Roux Conference: The EC State Aid Reform (Paris, 8 December 2005)

18551

The proceedings of this colloquium are organised in two parts. In the first stage, the two main axes of the reform are studied: In substantive terms, the aim of the Community reform is to introduce a more economic analysis of aid in this area too. Following the presentation made by Ms Rabassa (...)

Jacques Derenne Beneficiaries - Economic Analysis: The CFI holds that the European Commission must identify the beneficiaries and carry out a finer economic analysis (Le Levant)

4236

The Court of First Instance of the EC decides that the Commission must identify precisely the beneficiaries of a disputed aid measure in its decisions to initiate the formal investigation procedure and carry out a more detailed economic analysis of the aid in question. CFI, 22 February 2006, (...)

Jacques Derenne Cross subsidies: The European Commission decides that the transfer of the banking and financial business of La Poste to a subsidiary does not include State aid elements (Postal Bank)

4663

EC Comm, C(2005) 5412, 21 December 2005, Banque Postale, box N 531/2005 On 21 December 2005, the European Commission decided that the transfer of the banking and financial activities of La Poste (France) to its subsidiary, La Banque Postale, did not contain elements of State aid (see note N. (...)

Jacques Derenne Aid recovery: The CFI explains the notions of actual beneficiary and ofintention to evade the repayment obligation (Freistaat Thüringen - Datenträger Albrechts)

4315

CFI, 19 October 2005, CDA Datenträger Albrechts GmbH v Commission, Case T-324/00 Following a formal investigation into new and existing aid, the Commission declared the state aid granted to LCA by the German authorities incompatible with the common market (the complex facts of the case mainly (...)

Jacques Derenne State Aid Recovery: The ECJ holds that the interruption of the limitation period cannot be subject to notification by the European Commission to the beneficiary (Scott)

4031

ECJ, 6 October 2005, Scott SA, case C-276/03 P In 1987, the Loiret department and the town of Orléans sold a plot of land to the company Bouton Brochard Scott at a preferential price and granted it a preferential rate for the calculation of the water treatment levy following the installation by (...)

Jacques Derenne Air Transport: The European Commission publishes EC Guidelines on the financing of airports and start-up aid to airlines departing from regional airports (Guidelines, 6 september 2005)

4067

EC Comm, 6 September 2005, Community Guidelines on Financing of Airports and Start-Up Aid to Airlines Departing from Regional Airports The adoption of these guidelines is a response to recent developments in the European air transport market: the emergence of low-cost airlines and the more (...)

Jacques Derenne Social security: The European Commission rules that the advantages granted to the Mutualité Fonction Publique must be abolished to the extent that they impact on its competitive activities (Mutualité Fonction Publique)

4889

EC Comm, C(2005) 2712, 20 July 2005, Aid to the Mutualite Fonction Publique and its mutuelles, case E 21/2004 This Commission decision concerns qualified existing aid and sensitive areas within Member States: social security and the civil service. The Commission confirms that state measures (...)

Jacques Derenne Services of general economic interest: The CFI approves a State aid regime under Art. 86.2 EC and holds that an invitation to tender does not necessarily need to be issued for a SGEI to exist (Fred Olsen)

4427

IFC, 15 June 2005, Fred Olsen SA v. Commission, Case T-17/02 The Court of First Instance is hearing in this case an action for annulment brought by SA Olsen against a Commission decision approving State aid as justified by compensation in the context of an SGEI. That 2001 decision predates the (...)

Jacques Derenne Identifying the beneficiaries: The CFI holds that the Commission has to clarify who the beneficiaries are for the purposes of recovering misused aid (Saxonia Edelmetalle-ZEMAG)

3565

CFI, 11 May 2005, Saxonia Edelmetalle GmbH and ZEMAG v. Commission, Joined cases T-111/01 and T-133/01 This case follows one of the many restructuring and privatisation operations of enterprises in the former German Democratic Republic. One of these operations had been notified by Germany to (...)

Jacques Derenne Legitimate expectations: The ECJ holds that the principle of protection of legitimate expectations may be relied upon to resist repayment of State aid only in exceptional circumstances (Daewoo)

5624

ECJ, 11 November 2004, Daewoo Electronics Manufacturing España v. Commission, joined cases C-183/02 P and C-187/02 P Two judgments were delivered on appeal on 11 November 2004 concerning the same tax measure granted from 1995 to 1999 by the Territorio Historico de Alava in Spain, in the form of (...)

Jacques Derenne Unhautorised state aid: The European Commission decides on the obligation to repay unauthorised State aid in the context of a preceding decision on the same case (Sernam - SNCF)

4072

EC Commission, dec. 2006/367/EC, 20 October 2004 on the State aid partly implemented by France for the Sernam company, case C 32/2003 (ex NN 122/2000). In 2001, the Commission had authorised, under certain conditions, restructuring aid to SERNAM, a French company active in the express (...)

Jacques Derenne Spain: The Spanish Competition Authority condemns the former postal monopoly for abuse of a dominant position on the basis of both domestic and Community competition rules (ASEMPRE / Correos)

4057

In the context of the amendments to the Spanish competition law legislative framework made necessary by the adoption of Regulation (EC) No 1/2003of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 247, 16.12.2002, p. 1). (OJ (...)

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