Public infrastructure financing in the EU : A hot topic in State aid law

The application of the State aid rules to public infrastructure financing is a complex and recent issue, which raises numerous legal questions that cannot be answered unequivocally at this point in time. It is no longer sufficient to ensure equal and non-discriminatory access to the infrastructure for users to exclude the existence of State aid resulting from the public financing of infrastructure. Public authorities, as well as companies owning, operating or using infrastructure are in need of guidance by the European Commission, ideally through a block exemption for public infrastructure financing. A less restrictive approach to the qualification of the construction and operation of infrastructure as Service of General Economic Interest than currently taken by the European Commission might also be part of the solution to allow for public infrastructure financing in compliance with European law.

I. Introduction 1. Public infrastructure financing has become a “hot topic” for public authorities, as well as public and private undertakings owning, operating and using infrastructure in the European Union (“EU”). It has become even more topical following the judgement of the European Court of Justice (“ECJ”) in Leipzig/Halle Airport [1] in December 2012. The ECJ confirmed the General Court ("GC") judgement of March 2011 [2] and stated in this judgement, which related to an airport, that public funding for the construction of commercially exploited infrastructure is subject to State aid law. 2. In the past the public financing of “general” infrastructure measures was not considered to constitute State aid, if equal and non-discriminatory access was granted to all potential users [3].

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