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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8. March 2016  |   State Aid Uncovered by Phedon Nicolaides

When Infrastructure is not Public: Dedicated, Project-Specific and Bespoke
State Aid Blogs - alex kalinin 8bs Kz8ACdM unsplash
Public funding of open and freely used infrastructure is not State aid. Public funding of project-specific, dedicated or bespoke infrastructure is State aid. Public funding of infrastructure connecting public and private parts may be State aid if the relevant national rules require developers to bear the cost.   Introduction The Commission has recently examined an infrastructure project in the vicinity […]
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4. March 2016  |   Guest State Aid Blog by G. Guðmundsson

Being a Competition and State Aid Trainee at the EFTA Surveillance Authority
efta
We are happy to welcome two young professionals on the State Aid Blog today. Guðmundur Guðmundsson and Amie Eliassen are trainees at EFTA Surveillance Authority in the Competition and State Aid Directorate and give their insights on working in this dynamic and multicultural work environment. You want to apply for a traineeship yourself? Read on for more information.   The […]
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3. March 2016  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – March 2016
gavel
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.   Tuesday 01/03/2016 Judgment in Case T-79/14 – Secop v Commission (General Court – First Chamber) Thursday 03/03/2016 Judgment […]
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1. March 2016  |   State Aid Uncovered by Phedon Nicolaides

How to Apply the Market Economy Investor Principle and what Mistakes to Avoid: The Long-running Case of EDF
State Aid Blogs - 17.10. imputability stateaid
A market investor carries out a thorough ex ante analysis of the prospects of an investment before it commits any money.     Introduction In 2004, the European Commission concluded, in decision 2005/145, that France granted incompatible aid to Electricite de France [EDF]. The French government had converted tax liability into share capital in EDF. The Commission was of the […]
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23. February 2016  |   State Aid Uncovered by Phedon Nicolaides

How to Determine the Selectivity of a Tax Measure
State Aid Blogs - m 8 1
A tax exception is normally a selective measure. However, exceptions which are open to all undertakings are not selective, even if they deviate from the standard tax rate or base. Exceptions which are open only to a few undertakings escape from being classified as selective only when the beneficiary undertakings are in a different legal or factual situation than non-beneficiaries. […]
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16. February 2016  |   State Aid Uncovered by Phedon Nicolaides

The Boundaries of Non-Economic Infrastructure and the Limits of the Funding Gap Method
State Aid Blogs - m 35 1
Public funding of assets which are used exclusively by certain undertakings constitutes State aid. If the state chooses to fund certain assets or activities, then it must do so consistently in all regions and in relation to all affected undertakings.   Introduction A typical mission of the state is to provide public goods. Normally public funding of public goods is […]
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9. February 2016  |   State Aid Uncovered by Phedon Nicolaides

Connecting Public and Private Infrastructure
State Aid Blogs - m 36 1
Public funding of public infrastructure is not State aid. Public funding of connections between public and private infrastructure is not State aid as long as it is open to all users and no fee is charged.   Introduction Last week’s article examined the use of a port facility. This week the focus is on a related issue: investment in port […]
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2. February 2016  |   State Aid Uncovered by Phedon Nicolaides

Possible Advantage from the Exclusive Use of Public-Funded Infrastructure
State Aid Blogs - m 37
The exclusive use of a public asset or an asset funded by public money may confer an advantage in the meaning of Article 107(1) TFEU if several competitors express their interest to use the same asset.   Introduction As public authorities are becoming more aware that placing public assets at the disposal of undertakings can involve State aid, they increasingly […]
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1. February 2016  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – February 2016
State Aid Blogs - m 33
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 04/02/2016 Judgment in Case T-287/11 – Heitkamp BauHolding v Commission (General Court – Ninth Chamber) Judgment in […]
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26. January 2016  |   State Aid Uncovered by Phedon Nicolaides

Nature Conservation as a Service of General Economic Interest
State Aid Blogs - m 38
Public funding of non-economic activities does not create State aid problems when any related economic activities are clearly separated. The 2012 SGEI package can apply retroactively.   Introduction Member States of the European Union are free to designate the services they consider to be in the general economic interest. However, the wide discretion they enjoy in this respect falls under […]
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5. January 2015  |   State Aid Uncovered by Phedon Nicolaides

Tax Measures with Specific Objectives Can still Be General
State Aid Blogs - m 24 2
A tax measure that applies to certain transactions is not selective if it does not preclude any company or type of asset. Conditions for the application of a tax measure may be justified by the logic of the tax system. The Commission may not use Article 107(3) to assess the compatibility with the internal market of a tax measure that […]
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29. December 2014  |   State Aid Uncovered by Phedon Nicolaides

Another Measure that Cannot Be Justified by the Logic of the Tax System
airplanes on the airport
The granting of a tax exception is often found to constitute State aid. But the non-levying of a tax may also fall within the scope of Article 107(1). Competitors have more rights when the Commission does not open the formal investigation procedure.   IntroductionOn 25 November 2014, the Court of Justice, in case T-512/11, Ryanair v European Commission, annulled Commission […]
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23. December 2014  |   State Aid Uncovered by Phedon Nicolaides

An Important Project of Common European Interest
State Aid Blogs - An Important Project of Common European Interest
Infrastructure projects which are economic in nature are subject to State aid scrutiny regardless of their importance. However, public funding of transport networks which are open to all users does not constitute State aid. Introduction State aid approval of important projects of common European interest is very rare. The joint Commission decisions SA.36558 and SA.38371 [Denmark] and SA.36662 [Sweden] concerning the […]
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15. December 2014  |   State Aid Uncovered by Phedon Nicolaides

Application of the Market Economy Investor Principle to a Company Processing Agricultural Products
State Aid Blogs - Application of the Market Economy Investor Principle to a Company Processing Agricultural Products
When a public entity injects fresh capital in a company in which it is already a shareholder, the new capital does not constitute State aid when it satisfies three conditions: i) all shareholders contribute in proportion to the shares they own, ii) the private participation is simultaneous and iii) the private participation is economically significant. Introduction   In this article […]
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9. December 2014  |   State Aid Uncovered by Phedon Nicolaides

A Surprising Interpretation of the Concept of Selectivity
State Aid Blogs - A Surprising Interpretation of the Concept of Selectivity
Tax measures are selective when they constitute an exception or deviation from the normal or common system of taxation. In addition, the exception must be open only to a pre-defined category of undertakings. IntroductionOften, the decisive element in whether a tax measure constitutes State aid is the existence of selectivity. On 7 November 2014, the General Court ruled on two […]
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1. December 2014  |   State Aid Uncovered by Phedon Nicolaides

The First Application of the New GBER to Sport Infrastructure
trafic sign
Public funding of local sport infrastructure may constitute State aid. The granting of a concession contract for the construction and/or operation of the infrastructure may not exclude State aid for the concessionaire. Measures based on the new GBER have to satisfy both its general and specific provisions. The funding gap method can be used in the context of the GBER. […]
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24. November 2014  |   State Aid Uncovered by Phedon Nicolaides

Land Transactions: Commercial Deals v Regulatory Acts
State Aid Blogs - Land Transactions Commercial Deals v Regulatory Acts
Regulation on land use or changes in such regulations do not constitute State aid. Administrative methods for calculating the value of public land do not necessarily prevent the granting of State aid if they do not reflect the evolution in market valuations.   IntroductionMany local authorities own land or regulate the use of land. They also sell or buy land. […]
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18. November 2014  |   State Aid Uncovered by Phedon Nicolaides

Recovery of State Aid and Penalty for Failing to Recover Incompatible Aid
State Aid Blogs - Recovery of State Aid and Penalty for Failing to Recover Incompatible Aid
Extension of an existing aid measure results in the granting of new aid. Only conditions of absolute impossibility can justify non-recovery of incompatible aid. Member States have to exhaust all possible options to recover incompatible aid and, if necessary, have to force the closure of the recipient of the aid. IntroductionIn this article I examine two recent judgments both of […]
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11. November 2014  |   State Aid Uncovered by Phedon Nicolaides

Reduction of Property Taxes and Electricity Tariffs
calculator
Relief from property tax is State aid even when the user of the property is involved in defence contracts. Providing cheaper electricity to a few manufacturers cannot be considered to be an appropriate measure for regional development. Introduction This article summarises several judgments which were delivered in October 2014. They concern a tax exemption in Spain and reduction of electricity […]
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2. November 2014  |   State Aid Uncovered by Phedon Nicolaides

The Market Economy Investor Test Applied to a Financially Troubled Company
SAS Airbus
Public funding of an undertaking is free of State aid when it is accompanied at the same time and on equivalent terms by similar private funding. If public funding is provided at the insistence of the private investors, it cannot be considered to be “pari passu” with the private participation. Public funding into a financially troubled company can still be […]
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