State Aid Law Blog

State Aid Uncovered 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!

Professor at Maastricht University; Professor at University of Nicosia, and Academic Director at Lexxion Training

State Aid Uncovered ×

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

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 […]

Competitive Elements in the Selection of Operators of Sports Infrastructure May not Be Enough to Eliminate State Aid

The existence of an advantage cannot be excluded when the operator of an infrastructural facility is chosen through a competitive procedure which combines price with other selection criteria. The users of a subsidised infrastructural facility who pay a market fee may still derive an advantage when the facility is designed and/or reserved for certain usage. Introduction   Ever since the Leipzig-Halle […]

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

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 […]

How Not to Determine the Effect on Trade [Infrastructure for Tourism, Czech Republic (SA.35909)]

Introduction Normally the articles in this blog identify landmark court rulings and seminal decisions of the Commission which set important precedents and provide useful guidance to State aid professionals and practitioners. This article deviates from this custom. It examines a recent case where the Commission concluded that public subsidies did not constitute State aid because intra-EU trade was not affected. […]

The Offsetting of a Structural Disadvantage Is still State Aid

Introduction Normally it is conceptually and technically fairly easy to determine whether an undertaking benefits from a public measure. However, this task becomes considerably more difficult in two situations: i) when a public authority claims that it acts like a private investor and ii) when a public measure is intended to compensate for a disadvantage suffered by the beneficiary undertaking […]

The Emerging Doctrine of Inseparability and Compensation for Public Service Obligations [T-347/09, Germany v Commission]

Introduction In the landmark judgment in Leipzig Halle, the General Court stated that infrastructure which is inseparable from economic activity is itself economic and its public funding can fall in principle within the scope of Article 107(1) TFEU. The Court of Justice has confirmed this principle. On 12 September 2013, the General Court in its judgment in case T-347/09, Germany […]

Selectivity and Administrative Discretion

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 […]

The Confusion between Necessity and Proportionality of State Aid [Case SA.35738: Public Funding of Port Infrastructure]

Introduction Several postings in this blog have examined cases concerning funding of port, airport or sport infrastructure. These cases have all had interesting peculiarities. Some involved no state aid because public authorities acted as private investors, while in other cases the funding arrangements were designed in such a way so that the state aid to operators would not spill over […]

The Flexible Boundary between Economic and Non-economic Activities

This is a rather long posting divided into two parts both of which deal with the concept of economic activity. In part I, I analyse two cases outside the field of state aid that dealt with the concepts of undertaking and economic activity. Both of them originated in legal proceedings initiated before Austrian courts. In part II (that will come […]

How to Use Economic Tools to Ensure the Proportionality of Aid (Commission Decision SA.34938 on a gas storage facility in Poland)

Introduction Normally, economic analysis is used by the Commission to find out whether a measure confers an abnormal advantage to an undertaking. This would be the case, for example, when a public authority makes an investment that generates a return that falls below what the market would demand. The recipient undertaking derives an abnormal advantage [i.e. an advantage that would […]

State Aid Uncovered ×

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

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 […]

Competitive Elements in the Selection of Operators of Sports Infrastructure May not Be Enough to Eliminate State Aid

The existence of an advantage cannot be excluded when the operator of an infrastructural facility is chosen through a competitive procedure which combines price with other selection criteria. The users of a subsidised infrastructural facility who pay a market fee may still derive an advantage when the facility is designed and/or reserved for certain usage. Introduction   Ever since the Leipzig-Halle […]

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

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 […]

How Not to Determine the Effect on Trade [Infrastructure for Tourism, Czech Republic (SA.35909)]

Introduction Normally the articles in this blog identify landmark court rulings and seminal decisions of the Commission which set important precedents and provide useful guidance to State aid professionals and practitioners. This article deviates from this custom. It examines a recent case where the Commission concluded that public subsidies did not constitute State aid because intra-EU trade was not affected. […]

The Offsetting of a Structural Disadvantage Is still State Aid

Introduction Normally it is conceptually and technically fairly easy to determine whether an undertaking benefits from a public measure. However, this task becomes considerably more difficult in two situations: i) when a public authority claims that it acts like a private investor and ii) when a public measure is intended to compensate for a disadvantage suffered by the beneficiary undertaking […]

The Emerging Doctrine of Inseparability and Compensation for Public Service Obligations [T-347/09, Germany v Commission]

Introduction In the landmark judgment in Leipzig Halle, the General Court stated that infrastructure which is inseparable from economic activity is itself economic and its public funding can fall in principle within the scope of Article 107(1) TFEU. The Court of Justice has confirmed this principle. On 12 September 2013, the General Court in its judgment in case T-347/09, Germany […]

Selectivity and Administrative Discretion

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 […]

The Confusion between Necessity and Proportionality of State Aid [Case SA.35738: Public Funding of Port Infrastructure]

Introduction Several postings in this blog have examined cases concerning funding of port, airport or sport infrastructure. These cases have all had interesting peculiarities. Some involved no state aid because public authorities acted as private investors, while in other cases the funding arrangements were designed in such a way so that the state aid to operators would not spill over […]

The Flexible Boundary between Economic and Non-economic Activities

This is a rather long posting divided into two parts both of which deal with the concept of economic activity. In part I, I analyse two cases outside the field of state aid that dealt with the concepts of undertaking and economic activity. Both of them originated in legal proceedings initiated before Austrian courts. In part II (that will come […]

How to Use Economic Tools to Ensure the Proportionality of Aid (Commission Decision SA.34938 on a gas storage facility in Poland)

Introduction Normally, economic analysis is used by the Commission to find out whether a measure confers an abnormal advantage to an undertaking. This would be the case, for example, when a public authority makes an investment that generates a return that falls below what the market would demand. The recipient undertaking derives an abnormal advantage [i.e. an advantage that would […]

State Aid Uncovered ×

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

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 […]

Competitive Elements in the Selection of Operators of Sports Infrastructure May not Be Enough to Eliminate State Aid

The existence of an advantage cannot be excluded when the operator of an infrastructural facility is chosen through a competitive procedure which combines price with other selection criteria. The users of a subsidised infrastructural facility who pay a market fee may still derive an advantage when the facility is designed and/or reserved for certain usage. Introduction   Ever since the Leipzig-Halle […]

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

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 […]

How Not to Determine the Effect on Trade [Infrastructure for Tourism, Czech Republic (SA.35909)]

Introduction Normally the articles in this blog identify landmark court rulings and seminal decisions of the Commission which set important precedents and provide useful guidance to State aid professionals and practitioners. This article deviates from this custom. It examines a recent case where the Commission concluded that public subsidies did not constitute State aid because intra-EU trade was not affected. […]

The Offsetting of a Structural Disadvantage Is still State Aid

Introduction Normally it is conceptually and technically fairly easy to determine whether an undertaking benefits from a public measure. However, this task becomes considerably more difficult in two situations: i) when a public authority claims that it acts like a private investor and ii) when a public measure is intended to compensate for a disadvantage suffered by the beneficiary undertaking […]

The Emerging Doctrine of Inseparability and Compensation for Public Service Obligations [T-347/09, Germany v Commission]

Introduction In the landmark judgment in Leipzig Halle, the General Court stated that infrastructure which is inseparable from economic activity is itself economic and its public funding can fall in principle within the scope of Article 107(1) TFEU. The Court of Justice has confirmed this principle. On 12 September 2013, the General Court in its judgment in case T-347/09, Germany […]

Selectivity and Administrative Discretion

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 […]

The Confusion between Necessity and Proportionality of State Aid [Case SA.35738: Public Funding of Port Infrastructure]

Introduction Several postings in this blog have examined cases concerning funding of port, airport or sport infrastructure. These cases have all had interesting peculiarities. Some involved no state aid because public authorities acted as private investors, while in other cases the funding arrangements were designed in such a way so that the state aid to operators would not spill over […]

The Flexible Boundary between Economic and Non-economic Activities

This is a rather long posting divided into two parts both of which deal with the concept of economic activity. In part I, I analyse two cases outside the field of state aid that dealt with the concepts of undertaking and economic activity. Both of them originated in legal proceedings initiated before Austrian courts. In part II (that will come […]

How to Use Economic Tools to Ensure the Proportionality of Aid (Commission Decision SA.34938 on a gas storage facility in Poland)

Introduction Normally, economic analysis is used by the Commission to find out whether a measure confers an abnormal advantage to an undertaking. This would be the case, for example, when a public authority makes an investment that generates a return that falls below what the market would demand. The recipient undertaking derives an abnormal advantage [i.e. an advantage that would […]

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 to Nelly Stratieva at stratieva@lexxion.eu.

Step 2: We at Lexxion 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 publish your post.

Submit your guest blog post

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