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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12. April 2016 | State Aid Uncovered by Phedon Nicolaides

The Private Creditor Test: All Options Must be Taken into Account

A private investor always takes into account all available information before it makes any investment. Similarly, a private creditor takes into account all available options for recovering the largest possible amount of the money that is due. Such options may include different legal procedures. In assessing alternative options, a private creditor considers not only the amount that may be recovered, […]

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5. April 2016 | State Aid Uncovered by Phedon Nicolaides

Local Infrastructure

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Public funding of local infrastructure is not State aid when the responsibility for the infrastructure falls within the remit of public authorities, it is not commercially exploited, it is open to all users, it is not intended to support the needs of any particular undertaking and any benefits to any undertaking are incidental. Introduction Even since the adoption of […]

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4. April 2016 | Guest State Aid Blog by Lexxion Publisher

Court’s Diary – April 2016

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. Thursday 14/04/2016 Judgment in Case C-100/15 P – Netherlands Maritime Technology Association v Commission (Court of […]

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30. March 2016 | State Aid Uncovered by Phedon Nicolaides

The Treatment of Advisory and Information Services under State Aid Rules: The Case of the German Milk Levy

Public funding of advisory and information activities may constitute State aid. Public funding of industry associations may constitute State aid. Introduction An article that was published on this blog in January (view the article HERE) dealt with the issue of compulsory tests. If tests which are intended to safeguard public health are paid for by the state, is there any […]

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23. March 2016 | State Aid Uncovered by Phedon Nicolaides

Compensatory Payments Can still Confer an Advantage

Membership of a compulsory insurance scheme can still confer an advantage to participating undertakings. Private contributions can still become state resources if they are paid into a fund that is managed by the state. Member States always have the option to ask for a measure to be assessed directly on the basis of the Treaty but they have to justify […]

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15. March 2016 | State Aid Uncovered by Phedon Nicolaides

a) Natural Disasters and b) Absolute Impossibility to Recover Incompatible State Aid

Aid to remedy the damage caused by natural disasters can be granted only if the damage is the direct consequence of the disaster and the amount of aid must be limited to the actual damage suffered by each individual undertaking. Absence of documentary evidence can lead to absolute impossibility to recover incompatible aid. Introduction Article 107(2) TFEU declares three […]

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8. March 2016 | State Aid Uncovered by Phedon Nicolaides

When Infrastructure is not Public: Dedicated, Project-Specific and Bespoke

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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

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

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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9. February 2015 | State Aid Uncovered by Phedon Nicolaides

Restructuring and the Market Economy Investor Principle

Different interventions that aim to finance the same restructuring plan constitute a single measure. A private investor may consider a possible damage of its reputation from laying off workers but the damage has to be quantified. Finance support of employees provides an indirect benefit to the employer. Introduction In this article I review two similar cases: a judgment of […]

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3. February 2015 | State Aid Uncovered by Phedon Nicolaides

i) Environmental Harm Does Not Make State Aid Incompatible with the Internal Market ii) the Market Economy Investor Principle Applied to Monopolies

Security of energy supply can be a service of general economic interest. Avoiding harm to the environment is not one of the principles that underpin the internal market and which may not be violated by State aid measures. Determining whether competition is distorted does not require definition of the relevant markets. This article examines two apparently different but in […]

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26. January 2015 | State Aid Uncovered by Phedon Nicolaides

Non-Commercial Public Infrastructure: Another Judgment, More Questions

Public infrastructure which is not exploited for commercial purposes does not result in an advantage for its users. Undertakings which are subject to different regulatory requirements can be treated differently. Cross-border trade can be affected even when there is no direct provision of cross-border services. Introduction The Leipzig-Halle judgment of 2011 was a shock to public funding of infrastructure […]

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19. January 2015 | State Aid Uncovered by Phedon Nicolaides

Use of Publicly-Funded Infrastructure without State Aid

Public funding of infrastructure which is open to any user does not constitute State aid. Public funding for the upgrading/extension of infrastructure in view of expected increase in the number of users is not State aid as long as it is not designed for the specific needs of certain users.Fees charged to users of publicly-funded infrastructure must cover incremental costs […]

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12. January 2015 | State Aid Uncovered by Phedon Nicolaides

“Good” Procedures Make “Good” State Aid: Ex Ante Conditionality for Effective Application of EU State Aid Rules

State Aid Blogs - 21.11.State resources State control

Structural fund rules for the period 2014-2020 define ex ante conditionalities that have to be satisfied by Managing Authorities that use EU funds to grant State aid. The ex ante conditionalities aim to strengthen the administrative capacity of Managing Authorities to grant State aid correctly. The European Commission has issued guidance on arrangements that can lead to improved administrative capacity. […]

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5. January 2015 | State Aid Uncovered by Phedon Nicolaides

Tax Measures with Specific Objectives Can still Be General

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

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

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

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

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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State Aid Uncovered Blog

The Private Creditor Test: All Options Must be Taken into Account

Local Infrastructure

Court’s Diary – April 2016

The Treatment of Advisory and Information Services under State Aid Rules: The Case of the German Milk Levy

Compensatory Payments Can still Confer an Advantage

a) Natural Disasters and b) Absolute Impossibility to Recover Incompatible State Aid

When Infrastructure is not Public: Dedicated, Project-Specific and Bespoke

Being a Competition and State Aid Trainee at the EFTA Surveillance Authority

Court’s Diary – March 2016

How to Apply the Market Economy Investor Principle and what Mistakes to Avoid: The Long-running Case of EDF

Restructuring and the Market Economy Investor Principle

i) Environmental Harm Does Not Make State Aid Incompatible with the Internal Market ii) the Market Economy Investor Principle Applied to Monopolies

Non-Commercial Public Infrastructure: Another Judgment, More Questions

Use of Publicly-Funded Infrastructure without State Aid

“Good” Procedures Make “Good” State Aid: Ex Ante Conditionality for Effective Application of EU State Aid Rules

Tax Measures with Specific Objectives Can still Be General

Another Measure that Cannot Be Justified by the Logic of the Tax System

An Important Project of Common European Interest

Application of the Market Economy Investor Principle to a Company Processing Agricultural Products

A Surprising Interpretation of the Concept of Selectivity

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