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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11. October 2016  |   State Aid Uncovered by Phedon Nicolaides

Non-economic Activities, Absolute Impossibility to Recover Incompatible Aid and the Powers of National Courts
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This article reviews three judgments that were all rendered on 15 September 2016. The first two concern the concept of economic activity. The third is about the rights of national courts to consider the correctness of Commission decisions. The Court of Justice has said clearly that national courts may not question Commission decisions.   Economic activity The first two cases […]
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6. October 2016  |   State Aid Uncovered by Phedon Nicolaides

Compensation for the Extra Costs Imposed by Law
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When the state imposes obligations which create extra costs for a single undertaking, that undertaking suffers a disadvantage in relation to its competitors. The extra costs are abnormal because normal costs are those borne by all competitors. Introduction On 14 July 2016, the General Court rendered its judgment in case T 143/12, Germany v Commission.1 The outcome was a victory for […]
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5. October 2016  |   Guest State Aid Blog by Erika Szyszczak

Article 263(4) TFEU: Third Party Challenges to State Aid Decisions
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We are happy to welcome back Prof Erika Szyszczak on the State Aid Blog today. She is Professor of Law and Fellow of the UK Trade Policy Observatory at University of Sussex and practising barrister and ADR mediator at Littleton Chambers, Temple, London. Today she shares her views on two cases that shed new light on third party rights to […]
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1. October 2016  |   by Lexxion Publisher

Court’s Diary – October 2016
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Find below the court’s diary for all State aid cases this month. Would you like to write a comment on one of them? Please don’t hesitate and get in touch with us ([email protected]), we are happy to publish your comment on the blog.   Tuesday 11/10/2016 Judgment in Case T-167/14 – Søndagsavisen v Commission (General Court – First Chamber) Wednesday 12/10/2016 Judgment […]
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27. September 2016  |   State Aid Uncovered by Phedon Nicolaides

Regional Aid for a Large Project subject to Individual Notification under the GBER
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In the meaning of regional aid rules, diversification in a “new activity” is not the same as diversification in a “new product”. A “new process innovation” must be different, in the sense of being distinct from an existing process, must be substantial, in the sense that it covers the whole production process and must be new, in the sense that […]
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20. September 2016  |   State Aid Uncovered by Phedon Nicolaides

Non-State Aid Assistance to Depositors and Customers of Banks
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Public assistance to borrowers who cannot repay their loans does not constitute State aid if the beneficiaries are individuals. Public assistance to undertakings which cannot repay their loans does not constitute State aid if the amount of aid does not exceed the de minimis threshold. Any public funding of deposits which are transferred from ailing to healthy banks is not […]
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14. September 2016  |   Guest State Aid Blog by Michał Bernat

Polish Green Certificates Held by the Commission to Be Compatible State Aid: a Curious Story Comes to an End
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We are happy to welcome Dr Michał Bernat on the State Aid Blog today. He is a legal and tax adviser and State aid expert at the Dentons offices in Warsaw. Today he shares his insights on a decision in a case involving Polish green certificates issued to producers of energy from renewable energy sources. Read on to learn more. […]
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13. September 2016  |   State Aid Uncovered by Phedon Nicolaides

Burden-Sharing and State Aid to Banks
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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 […]
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6. September 2016  |   State Aid Uncovered by Phedon Nicolaides

Commission Notice on the Notion of State Aid: Part III – Trade Effect, Distortion of Competition and Infrastructure
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This is the third and last article in a series of three that reviews the Commission’s Notice on the Notion of State Aid.* Last week’s article analysed the concepts of advantage and selectivity. This week the focus is on the last two constituent elements of the notion of State aid: affectation of cross-border trade and distortion of competition. This article […]
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1. September 2016  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – September 2016
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Find below the court’s diary for all State aid cases this month. Would you like to write a comment on one of them? Please don’t hesitate and get in touch with us ([email protected]), we are happy to publish your comment on the blog.   Wednesday 14/09/2016 Judgment in Case T-57/15 – Trajektna luka Split v Commission (General Court – Seventh Chamber)   […]
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8. December 2015  |   State Aid Uncovered by Phedon Nicolaides

i) New v Existing State Aid ii) Exemption from VAT and Attribution to Member States iii) The Duty of National Courts to Protect Competitors from Illegal State aid
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Aid that pre-exists the entry of a Member State into the EU is “existing” and does not have to be recovered. VAT exemptions authorised by the EU are not State aid. National courts must disregard national legal provisions that prevent them from acting against illegal aid.   Introduction This article examines a variety of issues: when State aid is existing […]
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1. December 2015  |   State Aid Uncovered by Lexxion Publisher

Court’s Diary – December 2015
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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 ([email protected]), we are happy to publish your comment on the blog   Thursday 07/12/2015 Judgment in Case T-242/12 – SNCF v Commission (General Court – Seventh Chamber)   Thursday 17/12/2015 Judgment in […]
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1. December 2015  |   State Aid Uncovered by Phedon Nicolaides

Investment and Operating Aid to Airports
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State aid is granted on the date the relevant public authority makes an irrevocable commitment to grant it or creates a legal entitlement for the beneficiary. Loans that impose public policy obligations on borrowers are not in conformity with the behaviour of a private investor.   Introduction This is a rather long article because it examines a rich case that […]
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24. November 2015  |   State Aid Uncovered by Phedon Nicolaides

Market Economy Investor Principle
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Public investment is free of State aid when it is made at the same time and on equal terms with investments by private investors. In the absence of an equivalent private investment, public investment does not constitute State aid when it is demonstrated ex ante that it is capable of generating market rates of return.   Introduction Public authorities are […]
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16. November 2015  |   State Aid Uncovered by Phedon Nicolaides

Special Tax Treatment to Alleviate Structural Disadvantages
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Favourable tax treatment to alleviate “structural disadvantages” suffered by certain companies is a selective measure that falls within the scope of Article 107(1).   Introduction Member States use taxes not just to raise revenue but also as instruments of public policy. They impose taxes on activities they want to discourage [e.g. smoking, driving] and they relieve from taxes activities they […]
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10. November 2015  |   State Aid Uncovered by Phedon Nicolaides

Sale of Public Land and Conditions for Credible Expert Valuation
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The value of land corresponds to its market price that can be determined through open and unconditional bidding. If a price cannot be determined through bidding, then expert valuation is an alternative method for establishing the value of land. Expert valuation has to be carried out ex ante, by a recognised independent surveyor, on the basis of reasonable assumptions and […]
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4. November 2015  |   State Aid Uncovered by Phedon Nicolaides

Economic Continuity and Recovery of Incompatible State Aid
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Incompatible State aid must be recovered from “successor” companies which acquire previously aided companies and enable the latter to continue their operations without any change.     Introduction In this article I review two decisions in which the Commission determined that incompatible aid had to be recovered from “successor” companies. Those were companies which had obtained the assets of the […]
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27. October 2015  |   State Aid Uncovered by Phedon Nicolaides

The Perennial Altmark Questions
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A SGEI provider does not have to be efficient by industry standards in order to receive compensation for its next extra costs. Although the conditions for compatibility of public service compensation under Article 106(2) TFEU appear to be similar to the Altmark criteria, they have very different objectives.   Introduction Even since the Altmark judgment of July 2003, public authorities […]
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20. October 2015  |   State Aid Uncovered by Phedon Nicolaides

Should State Aid that Is Passed on to Consumers Not be Recovered?
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Should the amount of recoverable aid be similarly reduced by the amount that is allegedly passed on to consumers? I will argue the case against it.   Introduction On 5 February 2015, the General Court, in cases T-473/12, Aer Lingus v Commission[1] and T-500/12, Ryanair v Commission[2], annulled Article 4 of Commission Decision 2013/199. In that decision the Commission found that a […]
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13. October 2015  |   State Aid Uncovered by Phedon Nicolaides

A Primer on Compensation for the Extra Costs of Public Service Obligations Taking into Account Efficiency Gains
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When Member States impose PSOs they are never allowed to grant even a single euro in excess of the net extra costs of the PSO. That is prohibited for the simple reason that it results in over-compensation.     Introduction The Lexxion seminar on state aid for transport and transport infrastructure that took place in Brussels on 21-22 September (view […]
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