European Court of Justice (Luxembourg)

Raphaël Vuitton

European Court of Justice (Luxembourg)
Legal Secretary

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

Articles

13170 Review

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

107

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

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

45

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

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

44

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

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

40

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

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

64

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

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

109

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

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

95

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

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

99

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

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

73

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

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

116

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

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

115

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

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

91

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

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

129

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

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

174

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

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

126

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

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

94

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

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

109

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

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

104

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

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

144

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

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

108

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

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

158

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

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

94

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

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

198

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

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

92

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

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

59

In Germany, milk quality is traditionally assured by independent quality tests. In Bavaria, these tests are financed by resources from a levy imposed on milk purchasers by a Federal Milk and Fat Law (hereinafter ’the MFG’) and from the general budget of that Land. Background On 17 July 2013, (...)

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

128

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

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

81

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

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

101

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

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

190

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

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

111

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

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

103

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

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

146

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

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

119

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

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

148

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

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

76

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

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

136

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

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

239

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

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

133

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

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

120

The context of the judgments under comment is the same as that which led to the Court’s judgmentof 9 November 2017, Commission v. Greece (Case C-481/16).which was the subject of a comment in the previous issue of the magazine Concurrences (comm. R Vuitton, Concurrences No. 1-2018, pp. 134-136). (...)

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

143

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

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

137

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

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

119

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

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

170

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

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

98

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

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

483

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

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

227

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

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

152

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

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

280

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

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

173

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

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

192

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

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

121

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

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

199

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

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

139

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

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

155

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

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

125

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

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

139

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

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

174

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

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

191

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

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

186

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

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

121

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

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

168

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

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

110

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

Raphaël Vuitton Compatible aid: The General Court of the European Union confirms the Commission’s decision declaring, after a preliminary examination, that the subsidies granted by the Czech Republic in favour of non-profit organizations, for the construction, operation, maintenance, reconstruction or development of sports facilities are, insofar as they constitute a State aid, compatible with the internal market under Article 107(3) (c) TFEU (Hamr-Sport)

217

Does European state aid law preclude the granting of subsidies to associations for the creation and management of sports facilities? That is, in essence, the question which the Commission and the Court of First Instance have been called upon to answer in turn. Background In 2011, Hamr-Sport, (...)

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

119

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

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

111

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

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

465

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

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

149

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

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

121

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

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

136

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

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

112

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

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

129

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

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

110

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

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

153

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

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

124

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

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

188

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

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

188

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

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

181

The two orders adopted by the Court of First Instance on 12 May 2015 in the Woonlinie and Woonput cases constitute the final episode in the dispute concerning the aid scheme for ’wocos’, Netherlands non-profit-making organisations operating in the field of social housing. By a decision of 2009, (...)

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

296

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

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

195

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

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

262

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

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

217

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

Raphaël Vuitton Concept of state aid : The Court of Justice of the European Union considers that the amounts allocated to a private company producing electricity which are financed by all electricity consumers located in the national territory and are distributed to the electricity sector by a public body in accordance with predetermined legal criteria constitute an intervention by the State or through State resources within the meaning of article 107, paragraph 1, TFEU (Elcogás)

248

CJEU, 22 Oct. 2014, Elcogás, aff. C-275/13, EU:C:2014:2314 The Spanish company Elcogás is the owner of a thermal power generation plant that produces electricity using coal gasification and other alternative fuels. Due to the additional costs generated by this technology, the company benefited (...)

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

206

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

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