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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23. November 2021  |   State Aid Uncovered by Phedon Nicolaides

6th Revision of the Temporary Framework for Covid-19 State Aid
State Aid Blogs - Blog 47 KV
Introduction On Thursday, 18 November 2021, the European Commission adopted a sixth amendment to the Temporary Framework [TF] for State aid measures to combat covid-19. The document laying down the new amendments can be accessed here: https://ec.europa.eu/competition-policy/document/download/a822acec-f0c6-4c8c-ab49-fc2dd34188ec_en The TF was scheduled to expire on 31 December 2021. The new amendment extends its validity to 30 June 2022. It also changes […]
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16. November 2021  |   State Aid Uncovered by Phedon Nicolaides

Selectivity and Tax Measures
State Aid Blogs - Blog KV 46
The reference system for determining the selectivity of a tax measure must have its own logic and be autonomous and its identification depends on the content, structure and specific effects of the applicable rules. A measure that does not exclude any particular undertaking can be selective if it treats differently undertakings which are in similar situations. Introduction On 6 October […]
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9. November 2021  |   State Aid Uncovered by Phedon Nicolaides

Compensatory Payments and State Resources
State Aid Blogs - blog 45 KV
Funds used in compensation mechanisms mandated by the state become state resources Introduction The Court of Justice has stressed repeatedly that any resource over which the state can exercise control becomes a state resource, regardless of whether it is managed by a public authority or a private entity. Member States, however, keep inventing novel and complicated arrangements in which mandated […]
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2. November 2021  |   State Aid Uncovered by Phedon Nicolaides

Market Economy Operator
State Aid Blogs - Blog 44
Comparing prices charged by different airports is not a suitable method for detecting the existence of selective advantages. Introduction Airports enter into complex agreements with airlines. When airports are in public ownership or operate under a mandate by the state, their agreements with airlines may contain State aid. It is, however, very difficult to detect State aid in these agreements […]
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26. October 2021  |   State Aid Uncovered by Phedon Nicolaides

Legitimate Expectations and the “Right” to State Aid
State Aid Blogs - Blog 43 key visual
Legitimate expectations can only be created by EU institutions giving unambiguous and unconditional assurances. No undertaking enjoys a right to State aid. Member States may reduce the amount of State aid they grant. Introduction As the process of transition to green economy accelerates, Member States have been reducing the subsidies they promised to grant to the early investors in the […]
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19. October 2021  |   State Aid Uncovered by Phedon Nicolaides

Is Anyone who is Affected by State Aid an “Interested Party” that can Challenge a Commission Decision?
State Aid Blogs - blog 42 16 9
A non-competitor cannot normally claim to be “interested party”. The Commission does not have to prove to the normal legal standard the existence of state aid when it opens the formal investigation procedure. Introduction This week’s article reviews two recent judgments: one on the status of “interest party” and another on the obligations of the Commission when it opens the […]
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12. October 2021  |   State Aid Uncovered by Phedon Nicolaides

Security of Supply May Justify a Deviation from Public Procurement Rules
State Aid Blogs - Blog visual 41
Security of supply justifies a deviation from the normal procurement procedures as long as the same security cannot be achieved through a competitive selection of suppliers. Introduction Point 19 of the 2012 SGEI Framework requires that the assignment of a public mission to an undertaking must comply with the applicable public procurement rules. It does not impose an obligation for […]
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5. October 2021  |   State Aid Uncovered by Phedon Nicolaides

What the Commission Must Find Out in the Preliminary Examination of State Aid: The Lessons from Tempus Energy on what is Sufficient Information
State Aid Blogs - to use
The Commission must open the formal investigation procedure when it has serious doubts based on the information available to it. Introduction Once I asked an administrator of an institute where I used to work why I was not informed about certain benefits that were available to staff. “Because you did not ask”, he answered. How could I ask about something […]
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28. September 2021  |   State Aid Uncovered by Phedon Nicolaides

A Faulty Sale Procedure Can Lead to Presumption of State Aid and Annulment of a State Aid Decision
State Aid Blogs - stateaid39
A sale of public assets cannot be presumed to be free of State aid when bidders are not treated equally. Introduction When the state sells a company it owns, there is a presumption that no State aid benefits either the buyer or the company that is sold if the sale is open transparent, non-discriminatory, unconditional and the chosen buyer is […]
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21. September 2021  |   State Aid Uncovered by Phedon Nicolaides

Market Economy Operator Test: Timisoara Airport & Wizz Air
State Aid Blogs - 38 pexels anugrah lohiya 723240
Public funding of activities that fall within the remit of the state does not constitute state aid. Although the presence of a credible ex ante business plan based on realistic assumptions is a strong indicator that the MEOT is satisfied, its absence does not necessarily prove that the MEOT is failed. Introduction Following a complaint by Carpatair, the European Commission […]
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19. January 2021  |   State Aid Uncovered by Phedon Nicolaides

Funding of Public Hospitals
State Aid Blogs - StateAidHub blogpost3 Hospitals
Public healthcare provided in accordance with the principle of social solidarity is not economic in nature. Introduction There are two sectors where economic and non-economic activities mix and cause potential State aid problems: healthcare and education. Healthcare and education provided by public institutions do not differ much from healthcare and education provided by private institutions. The critical difference is not […]
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12. January 2021  |   State Aid Uncovered by Phedon Nicolaides

A First Evaluation of Covid-19 State Aid
State Aid Blogs - StateAidHub blogpost2 Covid
There is a significant variation across Member States in terms of the number of aid measures as well as the amount of aid. Introduction On 17 December 2020, the European Parliament published a report evaluating the impact of State aid to combat covid-19.[1] The report was requested by the committee responsible for economic policy. The report is probably the first […]
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5. January 2021  |   State Aid Uncovered by Phedon Nicolaides

One Agreement, Two Parallel Systems: Subsidies in the Trade and Cooperation Agreement between the EU and the UK
State Aid Blogs - StateAidHub blogpost1 Brexit
The agreement on subsidies allows the UK to deviate from EU State aid rules. Introduction After the exit of the United Kingdom [UK] from the European Union [EU] on 31 January 2020, EU State aid rules continued to apply to the UK during a transitional period that came to an end on 31 December 2020. In the closing days of […]
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28. December 2020  |   State Aid Uncovered by Phedon Nicolaides

The Time Horizon of a Private Investor
State Aid Blogs - StateAidHub blogpost51
A public authority that claims that it invests for the long term, must still prove that its investment is likely to be profitable. Introduction Public authorities may invest in private companies. However, they need to behave as private investors otherwise they confer an advantage that constitutes State aid. In their defence, public authorities claiming that they act as private investors, […]
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21. December 2020  |   State Aid Uncovered by Phedon Nicolaides

Attribution to the State does not necessarily Imply Control by the State
State Aid Blogs - towel 1838210 1920 1
Prices fixed by the state do not necessarily confer control to the state over the private resources which are used to pay those prices. Introduction Judging from how many times EU courts have been asked to interpret the concept of state resources, it seems that one of the most difficult aspects of Article 107(1) TFEU is to determine whether funding […]
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15. December 2020  |   State Aid Uncovered by Phedon Nicolaides

The Law, Economics and Art of Compensation for Public Service Obligations
State Aid Blogs - post sign 1893086 1920 1
State aid in the form of compensation for public service obligations must exclude any intangible benefits from the obligation, but may include reasonable profit. The Commission guidelines for State aid in agriculture and forestry, the block exemption regulations covering agriculture, forestry, fishery and aquaculture, and the Regulation on de minimis aid for fishery and aquaculture have been prolonged to 31 […]
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8. December 2020  |   State Aid Uncovered by Phedon Nicolaides

A Rare Case of Altmark-compliant SGEI (Part II)
State Aid Blogs - container 1638068 1920
For a service to be in the general economic interest, it must be shown to fill a gap in the market or to offer what the market fails to provide adequately. [In case you have missed part I, you can access it here.] Introduction Services of general economic interest [SGEI] are important for the functioning of European societies. However, the […]
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1. December 2020  |   State Aid Uncovered by Phedon Nicolaides

A Rare Case of Altmark-compliant SGEI (Part I)
State Aid Blogs - container 1638068 1920
For a service to be in the general economic interest, it must be shown to fill a gap in the market or to offer what the market fails to provide adequately. Introduction Services of general economic interest [SGEI] are important for the functioning of European societies. However, the granting of compensation to an undertaking for the provision of SGEI must […]
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24. November 2020  |   State Aid Uncovered by Phedon Nicolaides

De Minimis Aid
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If different awards of de minimis aid bring the total amount over the ceiling of EUR 200,000, Member States may withdraw aid already granted or reduce the amount of aid that is scheduled to be granted or simply refuse to grant aid so as to ensure that the total remains below the ceiling for any three-fiscal year period. Introduction A […]
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10. November 2020  |   State Aid Uncovered by Phedon Nicolaides

What is the Value of Informal Commission Communications?
State Aid Blogs - freighter 315201 1280
An official’s statement can be imputed to his authority if it can be reasonably assumed that the official speaks on behalf of the authority. Introduction It is often asked by national officials how much credence they should give to assurances by Commission officials in the absence of a formal Commission decision and what is the legal value of such assurances. […]
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