State Aid Law Blog

State Aid Uncovered Blog/Guest State Aid Blog

On a weekly basis Phedon Nicolaides posts critical analysis pieces on the latest State aid judgments and decisions on his blog State Aid Uncovered. Each article presents the main points of a court ruling or Commission‘s decision, places them in the context of similar case law or practice, assesses the underlying reasoning, and identifies any inconsistencies or contradictions.
Occasional guest blog posts by other State aid experts complement the State aid knowledge hub.

Join the debate now!

- court of justice ×

Market Economy Operator Principle: The Case of FIH

Negotiated transactions are not necessarily market conform. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 9 October 2020: 295* Legal basis: Article 107(2)(b): 32; Article 107(3)(b): 248; Article 107(3)(c): 23 – Average number of measures per Member State: 10.5 – Median number of measures per Member State: 12 – Mode number of measures per Member […]

Non-recovery of Incompatible State aid Is Costly

corona virus poster
Legal and practical difficulties in the recovery of incompatible State aid do not constitute justifiable “absolute impossibility”. Temporary Framework On 1 May, the total number of State aid measures to combat covid-19 approved by the European Commission reached 102. Their legal basis was: Article 107(2)(b): 9; Article 107(3)(b): 86; Article 107(3)(c): 7   Introduction The 2020 Temporary Framework for State […]

A Preferential Electricity Tariff Is Selective, Confers an Advantage and Distorts Competition

A judicial decision on interim measures is a selective measure. The private investor test does not apply to judicial decisions on interim measures. Introduction On 11 December 2019, in case C‑332/18 P, Mytilinaios Anonymos Etairia — Omilos Epicheiriseon v European Commission, the Court of Justice probably wrote the last chapter in a long-running case concerning privileges that had been granted […]

Can a Tax (rather than a Tax Exemption) Confer a Selective Advantage?

A tax that is levied at one level of government and does not apply to products and activities at a different level of government need not be selective. Introduction A tax exemption normally confers a selective advantage, unless it is justified by the logic of the tax. Counterintuitively, a tax itself can be selectively advantageous if its scope is too […]

Separability of Economic from Non-economic Activities

Activities which are inseparable from the exercise of official powers are non-economic. Introduction   Pure research whose results are widely disseminated is undoubtedly a non-economic activity. Research reports are often published on the internet. But the design and management of a research organisation’s website can be an economic activity. Plenty of private companies provide these services for a fee. Does […]

Investor Protection and Existing Aid

Aid granted before accession to the EU may not be assessed by the Commission. Introduction It is fairly safe to say that in the sixty years of case law on State aid, the Court of Justice has ruled that there are just four instances in which payment of public money to an undertaking does not constitute State aid on the […]

Burden-Sharing and State Aid to Banks

Creditors must contribute to the recovery of banks before State aid is granted. Burden-sharing by creditors in the recovery of banks does not deprive them of their right to property.   Introduction On 19 July 2016, the Court of Justice rendered its judgment in case C‑526/14, Tadej Kotnik and others v Državni zbor Republike Slovenije.[1] The judgment was in response to a […]

Compensatory Payments Can still Confer an Advantage

Membership of a compulsory insurance scheme can still confer an advantage to participating undertakings. Private contributions can still become state resources if they are paid into a fund that is managed by the state. Member States always have the option to ask for a measure to be assessed directly on the basis of the Treaty but they have to justify […]

Court’s Diary – February 2016

Find below the court’s diary for all State aid cases. Would you like to write a comment on one of them? Please don’t hesitate and get in touch with us (stateaidhub@lexxion.eu), we are happy to publish your comment on the blog   Thursday 04/02/2016 Judgment in Case T-287/11 – Heitkamp BauHolding v Commission (General Court – Ninth Chamber) Judgment in […]

Levying of Charges to Maintain Equal Treatment Is Not Necessarily Selective

The standard of proof of whether a measure is selective depends on whether that measure is a scheme or a grant of individual aid. Measures providing for exemption are by definition selective. Measures that impose additional charges for the purpose of maintaining equality between operators are not necessarily selective even if the responsible authorities retain a degree of discretion in […]

Do Free but Compulsory Tests Confer a Selective Advantage?

State aid rules apply to measures which are either harmonised at EU level or are left to the discretion of Member States. The protection of public health is no sufficient reason for removing a public measure from the scope of Article 107(1). The fact that undertakings are obliged by law to comply with certain tests does not justify the subsidisation […]

Non-Economic Activities

Health insurance which is based on the principle of social solidarity is not economic in nature. Solidarity means that citizens have a right to the service in question and the quality of the service they obtain is not linked to the price they pay, if any. Health services which are provided privately for remuneration are economic in nature. Services provided […]

The Jurisdictional Side of Selectivity

Lady Justice
A measure determined independently by similar public entities is not selective even if it varies across those entities. A measure is selective when the entity that has adopted it, applies it differently to undertakings which are within its jurisdiction and in a comparable situation. A public entity may differentiate its measures provided the differentiation can be objectively justified. Introduction   […]

The Cost of not Recovering Incompatible Aid

Flag of Spain
The Commission is not obliged to quantify precisely the amount of aid that has to be recovered. The Member State that fails to recover incompatible aid or fails to recover all of it risks legal action against both before national and EU courts. The Commission may initiate infringement proceedings and request the Court of Justice to impose penalties against the failing Member […]

The Importance of a Correct Framing of the Private Creditor and Private Investor Tests

people in backlight
A public authority acting as private creditor must exhaust all legally available means of recovering money owed to it. A private creditor may agree to an amicable arrangement – depending on the complexity and duration of legal proceedings, the value of the collateral it holds and the chances of long-term viability of the debtor – if it results in repayment of […]

Guidance on the Application of Regulation 1370/2007 on Passenger Transport Services

train entering station
Public service obligations may only be imposed where the market does not provide adequate services in terms of price and/or quality. The selection of service providers must respect the principles of openness, transparency and non-discrimination, even when public procurement procedures may not apply. Compensation must be based on contracts which contain a precise definition of the public service and parameters on how […]

SMEs Linked through Natural Persons

corporate building
Two or more enterprises may constitute a single undertaking when their owners and/or managers are related in a way that they can act jointly to exercise influence over the decision of those enterprises. Introduction   On 27 February 2014, the Court of Justice rendered a judgment on the notion of “linked enterprises” following a request for preliminary ruling from a […]

The Role of National Courts in Recovery of Incompatible State Aid

court house
Introduction In December I examined the judgment in the case of Lufthansa v Frankfurt-Hahn, which laid down certain obligations for national courts whenever they are petitioned to suspend and even recover aid that happens to be at the same time under investigation by the Commission. In this article I review the judgment of the Court of Justice of 13 February […]

The Possibly Conflicting Roles of EU Institutions on State Aid

EU flag
Introduction On 10 December 2013, the Court of Justice, in C‑272/12 P, wrote another chapter in the long-running case of the exemption from excise taxes for alumina producers in France, Ireland and Italy. This is not the last chapter. The Court annulled a judgment of the General Court and referred the case back to the General Court. In fact this […]

The Non-Equivalence of the Various Methods of Supporting Green Electricity

electrical sockets
Introduction Ever since the judgment of the Court of Justice in 2001 on PreussenElektra [case C-379/98], Member States have been grappling with the question of how to support electricity from renewable resources [green electricity] without granting State aid. In PreussenElektra the Court found that there was no transfer of state resources and no State aid, because the German government imposed […]

Non-notified State Aid and the Role of National Courts C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn

airplane on the runway
Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would answer “nothing, in fact”. Indeed, nothing can stop a country that is determined to provide a subsidy. But after the judgment in case Lufthansa v Frankfurt Hahn Airport, the answer must be “unnecessary hassle”. Even if there is a slight […]

Altmark and Public Procurement: Definition and Award of Contracts

handshake
Introduction Ever since the Court of Justice ruled on Altmark ten years ago there has been a growing literature on the specific conditions that have to be satisfied so that public assistance to a provider of services of general economic interest [SGEI] does not constitute state aid. In this context, the relationship between the Altmark criteria and the public procurement […]

Selectivity and Administrative Discretion

computer keyboard
On 18 July 2013, in case C-6/12, the Court of Justice of the European Union rendered a judgment on an interesting aspect of the concept of selectivity.[1] The judgment concerned a request for preliminary ruling in a dispute between “P Oy”, a Finnish company, and Finnish tax authorities. The tax authorities refused to allow P Oy to deduct losses incurred in […]

PuState Resources and Payments between Undertakings

euro coins
Introduction A couple of years ago, the big issue in State aid law was the concept of selectivity. The judgments in the British Aggregates and Dutch NOx cases expanded, elaborated, and, some argued, convoluted the criteria for determining whether a measure was selective or not. This year, the big issue for sure is the concept of State resources. First came […]

Restrictions on Sale of Land and Social Housing

hands holding house model
Introduction This posting reviews the judgment of the Court of Justice of the European Union in two joined cases: Eric Libert, et al v Gouvernement Flamand, (C‑197/11) and All Projects & Developments NV and Others v Vlaamse Regering, (C‑203/11).[1] The judgment which was rendered on 8 May 2013 is important because it addresses several issues concerning public service obligations, their relationship with […]

Objectively Justified Pricing: The Market Economy Operator Principle

office table
Introduction: Objective justification of price differentiation In a landmark judgment 25 years ago [February 1988], the Court of Justice established that business behaviour that appears to deviate from normal market practices can still conform with the market economy operator principle [MEOP] which is a variation of the better known market economy investor principle [MEIP]. Both principles are based on the […]

Where is the Money? The Link between Advantage and Transfer of State Resources

100 euro detail
On 19 March 2013, the Court of Justice delivered an important judgment in case C-399/10 P, Bouygues v European Commission concerning aid that was granted by France to France Telecom. The case was an appeal to an earlier ruling of the General Court in case T 425/04 France and Others v Commission which annulled Article 1 of Commission Decision 2006/621 […]

- court of justice ×

Market Economy Operator Principle: The Case of FIH

Negotiated transactions are not necessarily market conform. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 9 October 2020: 295* Legal basis: Article 107(2)(b): 32; Article 107(3)(b): 248; Article 107(3)(c): 23 – Average number of measures per Member State: 10.5 – Median number of measures per Member State: 12 – Mode number of measures per Member […]

Non-recovery of Incompatible State aid Is Costly

corona virus poster
Legal and practical difficulties in the recovery of incompatible State aid do not constitute justifiable “absolute impossibility”. Temporary Framework On 1 May, the total number of State aid measures to combat covid-19 approved by the European Commission reached 102. Their legal basis was: Article 107(2)(b): 9; Article 107(3)(b): 86; Article 107(3)(c): 7   Introduction The 2020 Temporary Framework for State […]

A Preferential Electricity Tariff Is Selective, Confers an Advantage and Distorts Competition

A judicial decision on interim measures is a selective measure. The private investor test does not apply to judicial decisions on interim measures. Introduction On 11 December 2019, in case C‑332/18 P, Mytilinaios Anonymos Etairia — Omilos Epicheiriseon v European Commission, the Court of Justice probably wrote the last chapter in a long-running case concerning privileges that had been granted […]

Can a Tax (rather than a Tax Exemption) Confer a Selective Advantage?

A tax that is levied at one level of government and does not apply to products and activities at a different level of government need not be selective. Introduction A tax exemption normally confers a selective advantage, unless it is justified by the logic of the tax. Counterintuitively, a tax itself can be selectively advantageous if its scope is too […]

Separability of Economic from Non-economic Activities

Activities which are inseparable from the exercise of official powers are non-economic. Introduction   Pure research whose results are widely disseminated is undoubtedly a non-economic activity. Research reports are often published on the internet. But the design and management of a research organisation’s website can be an economic activity. Plenty of private companies provide these services for a fee. Does […]

Investor Protection and Existing Aid

Aid granted before accession to the EU may not be assessed by the Commission. Introduction It is fairly safe to say that in the sixty years of case law on State aid, the Court of Justice has ruled that there are just four instances in which payment of public money to an undertaking does not constitute State aid on the […]

Burden-Sharing and State Aid to Banks

Creditors must contribute to the recovery of banks before State aid is granted. Burden-sharing by creditors in the recovery of banks does not deprive them of their right to property.   Introduction On 19 July 2016, the Court of Justice rendered its judgment in case C‑526/14, Tadej Kotnik and others v Državni zbor Republike Slovenije.[1] The judgment was in response to a […]

Compensatory Payments Can still Confer an Advantage

Membership of a compulsory insurance scheme can still confer an advantage to participating undertakings. Private contributions can still become state resources if they are paid into a fund that is managed by the state. Member States always have the option to ask for a measure to be assessed directly on the basis of the Treaty but they have to justify […]

Court’s Diary – February 2016

Find below the court’s diary for all State aid cases. Would you like to write a comment on one of them? Please don’t hesitate and get in touch with us (stateaidhub@lexxion.eu), we are happy to publish your comment on the blog   Thursday 04/02/2016 Judgment in Case T-287/11 – Heitkamp BauHolding v Commission (General Court – Ninth Chamber) Judgment in […]

Levying of Charges to Maintain Equal Treatment Is Not Necessarily Selective

The standard of proof of whether a measure is selective depends on whether that measure is a scheme or a grant of individual aid. Measures providing for exemption are by definition selective. Measures that impose additional charges for the purpose of maintaining equality between operators are not necessarily selective even if the responsible authorities retain a degree of discretion in […]

Do Free but Compulsory Tests Confer a Selective Advantage?

State aid rules apply to measures which are either harmonised at EU level or are left to the discretion of Member States. The protection of public health is no sufficient reason for removing a public measure from the scope of Article 107(1). The fact that undertakings are obliged by law to comply with certain tests does not justify the subsidisation […]

Non-Economic Activities

Health insurance which is based on the principle of social solidarity is not economic in nature. Solidarity means that citizens have a right to the service in question and the quality of the service they obtain is not linked to the price they pay, if any. Health services which are provided privately for remuneration are economic in nature. Services provided […]

The Jurisdictional Side of Selectivity

Lady Justice
A measure determined independently by similar public entities is not selective even if it varies across those entities. A measure is selective when the entity that has adopted it, applies it differently to undertakings which are within its jurisdiction and in a comparable situation. A public entity may differentiate its measures provided the differentiation can be objectively justified. Introduction   […]

The Cost of not Recovering Incompatible Aid

Flag of Spain
The Commission is not obliged to quantify precisely the amount of aid that has to be recovered. The Member State that fails to recover incompatible aid or fails to recover all of it risks legal action against both before national and EU courts. The Commission may initiate infringement proceedings and request the Court of Justice to impose penalties against the failing Member […]

The Importance of a Correct Framing of the Private Creditor and Private Investor Tests

people in backlight
A public authority acting as private creditor must exhaust all legally available means of recovering money owed to it. A private creditor may agree to an amicable arrangement – depending on the complexity and duration of legal proceedings, the value of the collateral it holds and the chances of long-term viability of the debtor – if it results in repayment of […]

Guidance on the Application of Regulation 1370/2007 on Passenger Transport Services

train entering station
Public service obligations may only be imposed where the market does not provide adequate services in terms of price and/or quality. The selection of service providers must respect the principles of openness, transparency and non-discrimination, even when public procurement procedures may not apply. Compensation must be based on contracts which contain a precise definition of the public service and parameters on how […]

SMEs Linked through Natural Persons

corporate building
Two or more enterprises may constitute a single undertaking when their owners and/or managers are related in a way that they can act jointly to exercise influence over the decision of those enterprises. Introduction   On 27 February 2014, the Court of Justice rendered a judgment on the notion of “linked enterprises” following a request for preliminary ruling from a […]

The Role of National Courts in Recovery of Incompatible State Aid

court house
Introduction In December I examined the judgment in the case of Lufthansa v Frankfurt-Hahn, which laid down certain obligations for national courts whenever they are petitioned to suspend and even recover aid that happens to be at the same time under investigation by the Commission. In this article I review the judgment of the Court of Justice of 13 February […]

The Possibly Conflicting Roles of EU Institutions on State Aid

EU flag
Introduction On 10 December 2013, the Court of Justice, in C‑272/12 P, wrote another chapter in the long-running case of the exemption from excise taxes for alumina producers in France, Ireland and Italy. This is not the last chapter. The Court annulled a judgment of the General Court and referred the case back to the General Court. In fact this […]

The Non-Equivalence of the Various Methods of Supporting Green Electricity

electrical sockets
Introduction Ever since the judgment of the Court of Justice in 2001 on PreussenElektra [case C-379/98], Member States have been grappling with the question of how to support electricity from renewable resources [green electricity] without granting State aid. In PreussenElektra the Court found that there was no transfer of state resources and no State aid, because the German government imposed […]

Non-notified State Aid and the Role of National Courts C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn

airplane on the runway
Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would answer “nothing, in fact”. Indeed, nothing can stop a country that is determined to provide a subsidy. But after the judgment in case Lufthansa v Frankfurt Hahn Airport, the answer must be “unnecessary hassle”. Even if there is a slight […]

Altmark and Public Procurement: Definition and Award of Contracts

handshake
Introduction Ever since the Court of Justice ruled on Altmark ten years ago there has been a growing literature on the specific conditions that have to be satisfied so that public assistance to a provider of services of general economic interest [SGEI] does not constitute state aid. In this context, the relationship between the Altmark criteria and the public procurement […]

Selectivity and Administrative Discretion

computer keyboard
On 18 July 2013, in case C-6/12, the Court of Justice of the European Union rendered a judgment on an interesting aspect of the concept of selectivity.[1] The judgment concerned a request for preliminary ruling in a dispute between “P Oy”, a Finnish company, and Finnish tax authorities. The tax authorities refused to allow P Oy to deduct losses incurred in […]

PuState Resources and Payments between Undertakings

euro coins
Introduction A couple of years ago, the big issue in State aid law was the concept of selectivity. The judgments in the British Aggregates and Dutch NOx cases expanded, elaborated, and, some argued, convoluted the criteria for determining whether a measure was selective or not. This year, the big issue for sure is the concept of State resources. First came […]

Restrictions on Sale of Land and Social Housing

hands holding house model
Introduction This posting reviews the judgment of the Court of Justice of the European Union in two joined cases: Eric Libert, et al v Gouvernement Flamand, (C‑197/11) and All Projects & Developments NV and Others v Vlaamse Regering, (C‑203/11).[1] The judgment which was rendered on 8 May 2013 is important because it addresses several issues concerning public service obligations, their relationship with […]

Objectively Justified Pricing: The Market Economy Operator Principle

office table
Introduction: Objective justification of price differentiation In a landmark judgment 25 years ago [February 1988], the Court of Justice established that business behaviour that appears to deviate from normal market practices can still conform with the market economy operator principle [MEOP] which is a variation of the better known market economy investor principle [MEIP]. Both principles are based on the […]

Where is the Money? The Link between Advantage and Transfer of State Resources

100 euro detail
On 19 March 2013, the Court of Justice delivered an important judgment in case C-399/10 P, Bouygues v European Commission concerning aid that was granted by France to France Telecom. The case was an appeal to an earlier ruling of the General Court in case T 425/04 France and Others v Commission which annulled Article 1 of Commission Decision 2006/621 […]

- court of justice ×

Market Economy Operator Principle: The Case of FIH

Negotiated transactions are not necessarily market conform. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 9 October 2020: 295* Legal basis: Article 107(2)(b): 32; Article 107(3)(b): 248; Article 107(3)(c): 23 – Average number of measures per Member State: 10.5 – Median number of measures per Member State: 12 – Mode number of measures per Member […]

Non-recovery of Incompatible State aid Is Costly

corona virus poster
Legal and practical difficulties in the recovery of incompatible State aid do not constitute justifiable “absolute impossibility”. Temporary Framework On 1 May, the total number of State aid measures to combat covid-19 approved by the European Commission reached 102. Their legal basis was: Article 107(2)(b): 9; Article 107(3)(b): 86; Article 107(3)(c): 7   Introduction The 2020 Temporary Framework for State […]

A Preferential Electricity Tariff Is Selective, Confers an Advantage and Distorts Competition

A judicial decision on interim measures is a selective measure. The private investor test does not apply to judicial decisions on interim measures. Introduction On 11 December 2019, in case C‑332/18 P, Mytilinaios Anonymos Etairia — Omilos Epicheiriseon v European Commission, the Court of Justice probably wrote the last chapter in a long-running case concerning privileges that had been granted […]

Can a Tax (rather than a Tax Exemption) Confer a Selective Advantage?

A tax that is levied at one level of government and does not apply to products and activities at a different level of government need not be selective. Introduction A tax exemption normally confers a selective advantage, unless it is justified by the logic of the tax. Counterintuitively, a tax itself can be selectively advantageous if its scope is too […]

Separability of Economic from Non-economic Activities

Activities which are inseparable from the exercise of official powers are non-economic. Introduction   Pure research whose results are widely disseminated is undoubtedly a non-economic activity. Research reports are often published on the internet. But the design and management of a research organisation’s website can be an economic activity. Plenty of private companies provide these services for a fee. Does […]

Investor Protection and Existing Aid

Aid granted before accession to the EU may not be assessed by the Commission. Introduction It is fairly safe to say that in the sixty years of case law on State aid, the Court of Justice has ruled that there are just four instances in which payment of public money to an undertaking does not constitute State aid on the […]

Burden-Sharing and State Aid to Banks

Creditors must contribute to the recovery of banks before State aid is granted. Burden-sharing by creditors in the recovery of banks does not deprive them of their right to property.   Introduction On 19 July 2016, the Court of Justice rendered its judgment in case C‑526/14, Tadej Kotnik and others v Državni zbor Republike Slovenije.[1] The judgment was in response to a […]

Compensatory Payments Can still Confer an Advantage

Membership of a compulsory insurance scheme can still confer an advantage to participating undertakings. Private contributions can still become state resources if they are paid into a fund that is managed by the state. Member States always have the option to ask for a measure to be assessed directly on the basis of the Treaty but they have to justify […]

Court’s Diary – February 2016

Find below the court’s diary for all State aid cases. Would you like to write a comment on one of them? Please don’t hesitate and get in touch with us (stateaidhub@lexxion.eu), we are happy to publish your comment on the blog   Thursday 04/02/2016 Judgment in Case T-287/11 – Heitkamp BauHolding v Commission (General Court – Ninth Chamber) Judgment in […]

Levying of Charges to Maintain Equal Treatment Is Not Necessarily Selective

The standard of proof of whether a measure is selective depends on whether that measure is a scheme or a grant of individual aid. Measures providing for exemption are by definition selective. Measures that impose additional charges for the purpose of maintaining equality between operators are not necessarily selective even if the responsible authorities retain a degree of discretion in […]

Do Free but Compulsory Tests Confer a Selective Advantage?

State aid rules apply to measures which are either harmonised at EU level or are left to the discretion of Member States. The protection of public health is no sufficient reason for removing a public measure from the scope of Article 107(1). The fact that undertakings are obliged by law to comply with certain tests does not justify the subsidisation […]

Non-Economic Activities

Health insurance which is based on the principle of social solidarity is not economic in nature. Solidarity means that citizens have a right to the service in question and the quality of the service they obtain is not linked to the price they pay, if any. Health services which are provided privately for remuneration are economic in nature. Services provided […]

The Jurisdictional Side of Selectivity

Lady Justice
A measure determined independently by similar public entities is not selective even if it varies across those entities. A measure is selective when the entity that has adopted it, applies it differently to undertakings which are within its jurisdiction and in a comparable situation. A public entity may differentiate its measures provided the differentiation can be objectively justified. Introduction   […]

The Cost of not Recovering Incompatible Aid

Flag of Spain
The Commission is not obliged to quantify precisely the amount of aid that has to be recovered. The Member State that fails to recover incompatible aid or fails to recover all of it risks legal action against both before national and EU courts. The Commission may initiate infringement proceedings and request the Court of Justice to impose penalties against the failing Member […]

The Importance of a Correct Framing of the Private Creditor and Private Investor Tests

people in backlight
A public authority acting as private creditor must exhaust all legally available means of recovering money owed to it. A private creditor may agree to an amicable arrangement – depending on the complexity and duration of legal proceedings, the value of the collateral it holds and the chances of long-term viability of the debtor – if it results in repayment of […]

Guidance on the Application of Regulation 1370/2007 on Passenger Transport Services

train entering station
Public service obligations may only be imposed where the market does not provide adequate services in terms of price and/or quality. The selection of service providers must respect the principles of openness, transparency and non-discrimination, even when public procurement procedures may not apply. Compensation must be based on contracts which contain a precise definition of the public service and parameters on how […]

SMEs Linked through Natural Persons

corporate building
Two or more enterprises may constitute a single undertaking when their owners and/or managers are related in a way that they can act jointly to exercise influence over the decision of those enterprises. Introduction   On 27 February 2014, the Court of Justice rendered a judgment on the notion of “linked enterprises” following a request for preliminary ruling from a […]

The Role of National Courts in Recovery of Incompatible State Aid

court house
Introduction In December I examined the judgment in the case of Lufthansa v Frankfurt-Hahn, which laid down certain obligations for national courts whenever they are petitioned to suspend and even recover aid that happens to be at the same time under investigation by the Commission. In this article I review the judgment of the Court of Justice of 13 February […]

The Possibly Conflicting Roles of EU Institutions on State Aid

EU flag
Introduction On 10 December 2013, the Court of Justice, in C‑272/12 P, wrote another chapter in the long-running case of the exemption from excise taxes for alumina producers in France, Ireland and Italy. This is not the last chapter. The Court annulled a judgment of the General Court and referred the case back to the General Court. In fact this […]

The Non-Equivalence of the Various Methods of Supporting Green Electricity

electrical sockets
Introduction Ever since the judgment of the Court of Justice in 2001 on PreussenElektra [case C-379/98], Member States have been grappling with the question of how to support electricity from renewable resources [green electricity] without granting State aid. In PreussenElektra the Court found that there was no transfer of state resources and no State aid, because the German government imposed […]

Non-notified State Aid and the Role of National Courts C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn

airplane on the runway
Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would answer “nothing, in fact”. Indeed, nothing can stop a country that is determined to provide a subsidy. But after the judgment in case Lufthansa v Frankfurt Hahn Airport, the answer must be “unnecessary hassle”. Even if there is a slight […]

Altmark and Public Procurement: Definition and Award of Contracts

handshake
Introduction Ever since the Court of Justice ruled on Altmark ten years ago there has been a growing literature on the specific conditions that have to be satisfied so that public assistance to a provider of services of general economic interest [SGEI] does not constitute state aid. In this context, the relationship between the Altmark criteria and the public procurement […]

Selectivity and Administrative Discretion

computer keyboard
On 18 July 2013, in case C-6/12, the Court of Justice of the European Union rendered a judgment on an interesting aspect of the concept of selectivity.[1] The judgment concerned a request for preliminary ruling in a dispute between “P Oy”, a Finnish company, and Finnish tax authorities. The tax authorities refused to allow P Oy to deduct losses incurred in […]

PuState Resources and Payments between Undertakings

euro coins
Introduction A couple of years ago, the big issue in State aid law was the concept of selectivity. The judgments in the British Aggregates and Dutch NOx cases expanded, elaborated, and, some argued, convoluted the criteria for determining whether a measure was selective or not. This year, the big issue for sure is the concept of State resources. First came […]

Restrictions on Sale of Land and Social Housing

hands holding house model
Introduction This posting reviews the judgment of the Court of Justice of the European Union in two joined cases: Eric Libert, et al v Gouvernement Flamand, (C‑197/11) and All Projects & Developments NV and Others v Vlaamse Regering, (C‑203/11).[1] The judgment which was rendered on 8 May 2013 is important because it addresses several issues concerning public service obligations, their relationship with […]

Objectively Justified Pricing: The Market Economy Operator Principle

office table
Introduction: Objective justification of price differentiation In a landmark judgment 25 years ago [February 1988], the Court of Justice established that business behaviour that appears to deviate from normal market practices can still conform with the market economy operator principle [MEOP] which is a variation of the better known market economy investor principle [MEIP]. Both principles are based on the […]

Where is the Money? The Link between Advantage and Transfer of State Resources

100 euro detail
On 19 March 2013, the Court of Justice delivered an important judgment in case C-399/10 P, Bouygues v European Commission concerning aid that was granted by France to France Telecom. The case was an appeal to an earlier ruling of the General Court in case T 425/04 France and Others v Commission which annulled Article 1 of Commission Decision 2006/621 […]

How to Submit a Blog Post

Do you want to share your analysis of a State aid law topic? We invite you to submit your post on, for example: recent European, national or international judgments or legislation with relevance to EU State aid law; new developments, publications, hot topics in EU State aid law. The recommended length of the post is 500-2,000 words incl. references (endnotes). Your analysis will be published under the category ‘Guest State Aid Blog’.

Here’s how you can publish a post on the Blog as a guest author:

Step 1: Submit your draft post as a Word file to stateaidhub[a]lexxion.eu.

Step 2: The StateAidHub team will review your draft to make sure its content and quality fit the blog. If needed, they will suggest what improvements you should make.

Step 3: Once your draft has been finalised and accepted, we will send you a link to register and log-in to the Blog as a guest author.

Step 4: Once you have logged-in to the blog, you can upload and publish your post.

Step 5: Enjoy the fame!

Submit your guest blog post

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