State Aid Law Blog

State Aid Uncovered Blog

In Lexxion’s State Aid Uncovered blog, Prof. Phedon Nicolaides publishes weekly critical analyses of recent State aid judgments and decisions. Each post presents the key points of a court judgment or EU Commission decision, places it in the context of similar case law or practice, assesses the underlying reasoning and highlights any inconsistencies or contradictions.

Guest contributions from other State aid experts will also be published on the blog at irregular intervals to complement the content of the blog posts.

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4. April 2023  |   State Aid Uncovered by Phedon Nicolaides

Compensation for Damage Caused by COVID-19 Combined with Rescue Aid
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Introduction Member States are allowed to grant state to compensate undertakings for damage they suffer as a result of a natural disaster or exceptional occurrence. But, it is not always easy or possible to disentangle the damage caused by such an unforeseen event from losses caused by mismanagement or changes of market conditions. The art and science of calculating the […]
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28. March 2023  |   State Aid Uncovered by Phedon Nicolaides

A More Comprehensive and Generous GBER
State Aid Blogs - State Aid Uncovered SM posts 1 3
Introduction In a Communication that was published on 9 March 2023, the Commission announced extensive amendments to the GBER.[1] A 100-page annex to the Communication provided the legal text of the draft regulation that would revise Regulation 651/2014.[2] The amendments aim to: Ensure consistency between the GBER and new State aid guidelines. Bring the GBER in line with the EU […]
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30. March 2023  |   Guest State Aid Blog by Lexxion Publisher

A Visionary XXX FIDE Congress Approaching
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We’re happy to announce that Lexxion publisher has become a media partner to the FIDE Congress, one of the most distinguished events on EU law. Of particular interest for the readers of the State Aid blog and the EStAL quarterly is the second topic of the congress, dedicated to the new geopolitical dimension of the EU competition and trade policies. […]
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21. March 2023  |   State Aid Uncovered by Phedon Nicolaides

Charging Infrastructure for Electric Vehicles
State Aid Blogs - State Aid Uncovered SM posts 1 2
Introduction As part of the EU’s Green Deal and the transition to a greener and most sustainable economy, the European Commission’s guidelines on State aid for climate, environmental protection and energy [CEEAG] also allow public support for the construction of energy infrastructures. In a recent decision, the Commission approved a German State aid scheme [SA.104749] for high-power charging infrastructure for […]
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14. March 2023  |   State Aid Uncovered by Phedon Nicolaides

State Aid for the Resolution of a Polish bank
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Introduction Whenever a bank seeks State aid, it must be considered as “failing or likely to fail”. A failing bank must be liquidated or resolved. Resolution means that the critical functions of the bank are preserved while the rest are wound down. Critical functions are those that impact significantly the real economy such as deposits, loans to SMEs or payments. […]
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7. March 2023  |   State Aid Uncovered by Phedon Nicolaides

Tax Advantages and Competitive Bidding
State Aid Blogs - State Aid Uncovered SM posts 9
Introduction Award of contracts or sale of state assets through competitive bidding procedures or tenders are presumed to result in a market prices and to confer no advantage to the winner in the meaning of Article 107(1) TFEU. However, on 25 January 2023, the General Court ruled, in case T-666/21, Società Navigazione Siciliana v European Commission, that certain tax advantages […]
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28. February 2023  |   State Aid Uncovered by Phedon Nicolaides

Discretion of Public Authorities and Selectivity
State Aid Blogs - State Aid Uncovered SM posts 30
Introduction On 2 February 2023, the Court of justice, in case C649/20 P, Spain and Others v European Commission, clarified the extent to which public authorities can implement general measures without in practice favouring any undertaking. The exercise of administrative discretion can turn a general measure into selective. The Court made a distinction between what may be called “related” or […]
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21. February 2023  |   State Aid Uncovered by Phedon Nicolaides

The Selectivity and Profitability of Agreements between Airports and Airlines
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Introduction Selectivity is a tricky issue. Even a measure that appears not to favour or exclude any undertaking may in practice prove to be selective if its effects favour certain undertakings over others that are in a comparable situation. In order to determine whether they are comparable it necessary to examine the objective of the measure. This is what the […]
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8. February 2023  |   State Aid Uncovered by Phedon Nicolaides

State Aid May Have an Incentive Effect Even After the Start of Work: But Would it Favour Inefficient Operators?
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Introduction Perhaps the most important aspect of the compatibility of State aid with the internal market is the presence of incentive effect. That is, the aid is capable of changing the behaviour of the recipient. If it does not, then public money is wasted because it has no effect on what happens on the market anyway. In principle, in order […]
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30. January 2023  |   State Aid Uncovered by Phedon Nicolaides

Cumulation of State Aid Granted by Different Member States
State Aid Blogs - State Aid Uncovered SM posts 6
Introduction The EU Green Deal and the Climate, Environmental Protection and Energy Aid Guidelines [CEEAG] allow Member States to grant more aid, in diversity and amounts, to incentivise companies to invest in greener technologies and energy. However, when multiple Member States grant aid for the same purpose, there is a risk of overcompensation of undertakings that operate across Member States. […]
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9. August 2022  |   State Aid Uncovered by Phedon Nicolaides

Legal Standing of Competitors
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A Commission decision authorising or prohibiting a state aid measure that can be implemented without any intermediate rules is a “regulatory act” that can be challenged by “directly concerned” undertakings. Introduction Any natural or legal person who is the addressee of an act of an EU institution can challenge that act before EU courts. This is a right that is […]
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26. July 2022  |   State Aid Uncovered by Phedon Nicolaides

Economic Activities of a Research Organisation (Part I)
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The revenue from the economic activities of a research organisation must cover the full cost of those activities. Introduction Member States use extensively the GBER to support R&D schemes. If we exclude the measures that were implemented in the context of covid-19 and now those which are financed by the recovery and resilience fund, not more than a dozen measures […]
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19. July 2022  |   State Aid Uncovered by Phedon Nicolaides

The State Behaving Like a Private Land Owner
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A private land owner changes rent at market rates. But it may accept lower rent if the user of the land incurs costs to improve it. Comparative analysis to determine the market value of land must take into account not only the particularities of the various land plots, but also the particularities of the various rental contracts. Introduction When the […]
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12. July 2022  |   State Aid Uncovered by Phedon Nicolaides

State Guarantees without State Aid
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Introduction State guarantees may constitute State aid if they are not priced at market rates. A properly priced guarantee reflects the risk assumed by the public authority that issues it and the collateral, if any, that the beneficiary undertaking can pledge. The State aid that is embedded in a guarantee that is priced below the relevant market rate is operating […]
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5. July 2022  |   State Aid Uncovered by Phedon Nicolaides

Why Grant a Loan to an Undertaking in Difficulty?
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When a market operator invests in an undertaking in difficulty it also considers the possibility of restructuring, sale or closure. Introduction The answer to the question posed in the title of this article is “because the loan enables the undertaking to become viable again and repay the loan with interest”. It is now well established in the case law that […]
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28. June 2022  |   State Aid Uncovered by Phedon Nicolaides

Individual Aid to Counter the Effects of Serious Economic Disturbance Is Legally Possible, but Is it Appropriate?
State Aid Blogs - State Aid Uncovered SM posts 13
Individual aid need not be capable itself to remedy serious economic disturbance in the economy of a Member State. It is sufficient that it contributes to that effect. Introduction On 22 June 2022, in case T‑657/20, Ryanair v European Commission, the General Court confirmed once more that Member States have a right to grant State aid to the undertakings of […]
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21. June 2022  |   State Aid Uncovered by Phedon Nicolaides

The Date on which State Aid is Deemed to be Granted Is not necessarily the Date on which the Actual Benefit Materialises
State Aid Blogs - State Aid Uncovered SM posts 12
State aid is deemed to be granted even if the benefit cannot be quantified in advance and even if state resources are transferred at a future point in time. Introduction The precise date on which State aid is granted can be important such as, for example, when calculating the present value of aid granted in tranches at different points in […]
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14. June 2022  |   State Aid Uncovered by Phedon Nicolaides

Territoriality and the Tax Treatment of Intra-group Transactions
State Aid Blogs - State Aid Uncovered SM posts 11
A special tax rule can constitute the reference or normal system of taxation if it is “severable” from other tax rules and has its own legal logic. Introduction The application of State aid rules to the tax treatment of transactions between companies that belong to the same multinational group is contentious. During the past three years or so, the Commission […]
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7. June 2022  |   State Aid Uncovered by Phedon Nicolaides

A Rare Commission Decision on SGEI Interpreting Decision 2012/21
State Aid Blogs - State Aid Uncovered SM posts 10
A non-profit provider of free services which are in competition with similar services on the market is an undertaking. Introduction The decentralisation of State aid policy of the past decade has made it easier for the Member States to achieve their public policy objectives. By using blog exemption regulations and decisions, they can grant State aid faster, without having to […]
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31. May 2022  |   State Aid Uncovered by Phedon Nicolaides

State Aid and Anti-Competitive Practices
State Aid Blogs - State Aid Uncovered SM posts 9
State aid to undertakings that engage in anti-competitive practices is incompatible with the internal market. Introduction For State aid to be compatible with the internal market, it may not infringe any other provision of the Treaty or secondary legislation. Occasionally, the Commission finds State aid measures to be incompatible with the internal market because they contain clauses that exclude foreign […]
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