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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30. September 2020  |   State Aid Uncovered by Phedon Nicolaides

Market Economy Operator Test
State Aid Blogs - riga 2935034 1920
A rational airport operator considers only incremental revenue and costs and ignores any cost not caused by an agreement with an airline. State aid developments: New Guidelines in State aid in EU ETS The Commission published on Friday, 25 September, in Official Journal C 317, p.5, the new Guidelines on State aid measures in the context of the system for […]
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22. September 2020  |   State Aid Uncovered by Phedon Nicolaides

A Real Estate Deal that Does not Affect Intra-EU Trade
State Aid Blogs - hall 1489766 1920
Operators selected through competitive, transparent, non-discriminatory and unconditional procedures receive no State aid. When only a single bid is submitted, the market conformity of the outcome must be verified with comparative analysis. Activities are purely local when they are not likely to attract customers or operators from abroad. Update on Temporary Framework: Number of approved and published covid-19 measures, as […]
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15. September 2020  |   State Aid Uncovered by Phedon Nicolaides

Non-economic Activities and Services of General Economic Interest
State Aid Blogs - environmental protection 683437 1280
Non-economic tasks and economic activities which are inseparable from those non-economic tasks are together, as a bundle, non-economic in nature. Public compensation for the extra costs of services of general economic interest [SGEI] may not cross-subsidise activities that fall outside the scope of the SGEI. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 11 September […]
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8. September 2020  |   State Aid Uncovered by Phedon Nicolaides

State Control without State Imputability
State Aid Blogs - Postnord
A snapshot of Covid-19 State aid Number of Covid-19 approved measures1, 2 [EU27 + UK, 4 September 2020] 19-15 13-11 9-7 6-4 BE CZ DK IT PL DE FR HU LV NL BG EL FI IE LT LU MT RO SE SK UK AT CY EE ES HR PT SI Source: DG Competition, author’s own calculations 1: Data exclude amendments […]
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1. September 2020  |   State Aid Uncovered by Phedon Nicolaides

Pari Passu Investments
State Aid Blogs - money 3115984 1920
Update on Temporary Framework: Number of approved and published covid-19 measures, as of 28 August 2020: 270* Legal basis: Article 107(2)(b): 28; Article 107(3)(b): 228; Article 107(3)(c): 21 Four Member States have implemented 15 or more covid-19 measures each: Belgium, Czech Republic, Denmark, Italy & Poland. – Average number of measures per Member State: 9.6 – Median number of measures […]
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25. August 2020  |   State Aid Uncovered by Phedon Nicolaides

The Non-economic Nature of Certain IT Services for Higher Education
State Aid Blogs - ipad 820272 1920 1
Publicly funded educational services are not economic in nature. Activities intrinsically linked to public tasks are not economic in nature. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 21 August 2020: 262* Legal basis: Article 107(2)(b): 28; Article 107(3)(b): 220; Article 107(3)(c): 20 Four Member States have implemented 16 or more covid-19 measures each: Belgium, […]
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18. August 2020  |   State Aid Uncovered by Phedon Nicolaides

MEIP-Compliant Bank Recapitalisation: CEC Bank
State Aid Blogs - money 1064126 1920
An investor who is already a shareholder would take into account not only the return on new investment but also the impact on the overall profitability of the company in which capital is injected. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 14 August 2020: 252* Legal basis: Article 107(2)(b): 27; Article 107(3)(b): 211; Article […]
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11. August 2020  |   State Aid Uncovered by Phedon Nicolaides

The Commission Must Act in Accordance with the Principle of Proportionality
State Aid Blogs - audit 3929140 1920
The opening of a formal investigation obliges Member States to suspend implementation of their State aid measures. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 7 August 2020: 241* Legal basis: Article 107(2)(b): 25; Article 107(3)(b): 203; Article 107(3)(c): 18 Four Member States have implemented 15 or more covid-19 measures each: Belgium, Denmark, Italy & […]
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4. August 2020  |   State Aid Uncovered by Phedon Nicolaides

Draft Regional Aid Guidelines: Simpler and Clearer
Regional Aid
Update on Temporary Framework: Number of approved and published covid-19 measures, as of 31 July 2020: 235* Legal basis: Article 107(2)(b): 24; Article 107(3)(b): 198; Article 107(3)(c): 18 Five Member States have implemented 13 or more covid-19 measures each: Belgium, Denmark, France, Italy & Poland. – Average number of measures per Member State: 8.3 – Median number of measures per […]
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21. July 2020  |   State Aid Uncovered by Phedon Nicolaides

Taxation of Multinational Companies: The Apple Case – A Political Setback for the Commission, but a Victory on Principle
Mac
Defects, incompleteness and inconsistencies in tax rulings are not sufficient to prove the existence of an advantage in the meaning of Article 107(1) TFEU. Update on Temporary Framework: Number of approved and published covid-19 measures, as of 17 July 2020: 213* Legal basis: Article 107(2)(b): 21; Article 107(3)(b): 179; Article 107(3)(c): 18 Five Member States have implemented 13 or more […]
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14. April 2020  |   State Aid Uncovered by Phedon Nicolaides

Errors in State aid Procedures Need not Result in Annulment of a Commission Decision
State Aid Blogs - StateAidHub blogpost15 airport 2
Interested parties have a right to know how the compatibility of aid with the internal market is assessed. Temporary Framework developments As of 13 April 2020, the European Commission had authorised 51 measures adopted by 23 Member States. According to the statement of the Eurozone finance ministers of 9 April 2020, Member States had provided liquidity in the form of […]
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7. April 2020  |   State Aid Uncovered by Phedon Nicolaides

EU Decisions Override National Decisions on Compensation for Public Service Obligations
State Aid Blogs - StateAidHub blogpost14 Public Service Obligations 1
The principle of res judicata cannot be used to avoid recovery of incompatible State aid.   An update on State aid measures to counter the impact of COVID-19 As of 3 April 2020, the Commission has approved 29 measures submitted by 16 Member States. Article 107(3)(b) is the legal basis for 26 of those measures, while Article 107(2)(b) is the […]
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31. March 2020  |   State Aid Uncovered by Phedon Nicolaides

How to Make Good the Damage Caused by a Natural Disaster
State Aid Blogs - sergio torres nUw2nIGeGYY unsplash
Compensation for costs incurred as a result of a natural disaster is State aid. The compensation must be for damage directly caused by the natural disaster. Introduction State aid to make good the damage caused by an “exceptional occurrence” such as the corona virus covid-19 is compatible with the internal market. The legal basis for exemption is Article 107(2)(b). Of […]
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20. March 2020  |   State Aid Uncovered by Phedon Nicolaides

A New Temporary State aid Framework to Fight the Effects of the Corona Virus
corona virus poster
Member States will be allowed to provide grants, guarantees and loans to companies to alleviate the effects of the corona virus. Introduction At the end of 2009, the European Commission adopted a Temporary Framework of State aid rules to enable Member States to support companies that were harmed by the outbreak of the financial crisis in 2008. Now, the corona […]
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17. March 2020  |   State Aid Uncovered by Phedon Nicolaides

Has an Economic Myth Become a Legal Fact? The Case of Turnover Taxes
State Aid Blogs - Turnover
Progressive turnover taxes are not contrary to the freedom of establishment or the right of equal treatment. Introduction Recent cases involving “turnover” taxes have sparked a debate in the literature and on the conference circuit not only because they raise novel issues but also because of their implications for other taxes which are being mooted by European governments. As Advocate-General […]
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11. March 2020  |   State Aid Uncovered by Phedon Nicolaides

Financial Transactions between the State and Banks with No State aid
State Aid Blogs - StateAidHub blogpost10 state guarantees
Capital injections, state guarantees and loans granted to banks can be free of State aid if they are priced at market rates which reflect the risk borne by the state. Introduction If banks can obtain capital, loans and guarantees from the state at market rates why don’t they go directly to the market? No one has yet given a satisfactory […]
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3. March 2020  |   State Aid Uncovered by Phedon Nicolaides

Public Funding of Infrastructure without State Aid
State Aide_Infrastructure
The existence of State aid must be checked at the level of both the direct and indirect beneficiaries who are the owners and users of infrastructure, respectively. If payments to private land owners are to be free of State aid, they must be calculated on the basis of an objective formula that takes into account the size and value of […]
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25. February 2020  |   State Aid Uncovered by Phedon Nicolaides

Environmental Remediation and State Liability
State Aid Blogs - StateAidHub blogpost8 environmental remediation
Liability assumed by the state for the actions of an undertaking constitutes a selective advantage that may result in potential transfer of state resources in the future. Introduction On 16 January 2020 the General Court delivered its judgment in case T‑257/18, Iberpotash v European Commission.[1] Iberpotash, a Spanish company, appealed against Commission decision 2018/118. Iberpotash owns and operates potash mines […]
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21. February 2020  |   State Aid Uncovered by Phedon Nicolaides

From Waste to Energy
State Aid Blogs - StateAidHub blogpost7 waste to energy
State aid to incentivise the use of waste to produce energy must be individually notified. Introduction Waste management is an increasingly important aspect of policies aiming to prevent environmental degradation and slow down climate change. As the market for recycling expands and waste management becomes more profitable, there is also a higher risk of harm to competition by State aid. […]
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12. February 2020  |   State Aid Uncovered by Phedon Nicolaides

An Important (and so far, Unique) Project of Common European Interest
State Aid Blogs - StateAidHub blogpost6 microplastics IPCEI
State aid for important R&D projects of common European interest can cover different costs than the RDI Framework and at different rates of intensity. Introduction Several Member States have demanded a more active industrial policy to counteract perceived unfair foreign competition. The Commission’s response has partly been that current rules do allow cross-border cooperation for the development of innovative products. […]
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