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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2. June 2016  |   Guest State Aid Blog by Erika Ellyne

Frucona Revisited: Confusing EDF and Placing the Burden of Proof Where it Belongs
computer kayboard
We are happy to welcome Erika Ellyne on the State Aid Blog today. She is a lawyer at Van Bael & Bellis law firm where she works on EU competition law matters. Previously she was a researcher at the VUB University and the LSTS research center, where she is still an affiliate. Today she gives her insights on the Frucona […]
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1. June 2016  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – June 2016
gavel
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 09/06/2016   Judgment in Case T-162/13 – Magic Mountain Kletterhallen and Others v Commission (General […]
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31. May 2016  |   State Aid Uncovered by Phedon Nicolaides

Support for Green Electricity: State Resources and “PreussenElektra”
State Aid Blogs - m 27 1
Arrangements established by law whereby undertakings are compensated for any extra payments they make to producers of green electricity are likely to bring those payments under the control of the state. Those payments will then be classified as state resources regardless of whether they are managed by private entities.   Introduction On 10 May 2016, the General Court issued its […]
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24. May 2016  |   State Aid Uncovered by Phedon Nicolaides

Tax Exemptions Authorised by the Council of the EU
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State aid is an objective concept. When the Commission assesses a measure it has to examine its effects and cannot be bound by a decision of the Council. A beneficiary of State aid cannot entertain legitimate expectations simply because the Commission does not appear to object to the aid.   Introduction On 22 April 2016, the General Court rendered its judgment […]
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18. May 2016  |   State Aid Uncovered by Phedon Nicolaides

PART II: Regional Development and i) Market Economy Operator Test ii) Services of General Economic Interest
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A market economy operator undertakes activities whose incremental revenue exceeds their incremental costs. A market economy operator ignores costs which are unaffected by those activities. A service of general economic interest has special characteristics that set it apart from other services with positive impact on the economy. Having a positive impact is not enough.   Part II: Public tasks and […]
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10. May 2016  |   State Aid Uncovered by Phedon Nicolaides

PART I: Regional Development and i) Market Economy Operator Test, ii) Services of General Economic Interest
State Aid Blogs - m 28 1
A market economy operator undertakes activities whose incremental revenue exceeds their incremental costs. A market economy operator ignores costs which are unaffected by those activities. A service of general economic interest has special characteristics that set it apart from other services with positive impact on the economy. Having a positive impact is not enough.   Introduction National and regional authorities […]
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3. May 2016  |   State Aid Uncovered by Phedon Nicolaides

Calculation of State Aid in Guarantees
State Aid Blogs - 21.11.State resources State control
State guarantees can be used to support loans for working capital. The amount of State aid in guarantees can be calculated to remain below the de minimis threshold of EUR 200,000.   Introduction With financial instruments being very much in vogue, there is much interest in the use of guarantees and loans as a means of granting State aid. Therefore, […]
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2. May 2016  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – May 2016
gavel
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 10/05/2016 Judgment in Case T-47/15 – Germany v Commission (General Court – Third Chamber)   […]
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18. April 2016  |   State Aid Uncovered by Phedon Nicolaides

Who is Aided when a Bank is Resolved?
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Bank resolution may involve State aid. However, the depositors do not normally benefit from State aid, nor do the buyers of the viable assets, if they pay a market price. Any aid normally goes to the remaining, non-performing, assets that are eventually liquidated.   Introduction The new bank resolution regime that came into force on 1 January 2016 aims to […]
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12. April 2016  |   State Aid Uncovered by Phedon Nicolaides

The Private Creditor Test: All Options Must be Taken into Account
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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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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
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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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27. October 2014  |   State Aid Uncovered by Phedon Nicolaides

A Measure is Selective if its Application is Narrower than the Scope of the Objective it Seeks to Achieve
Atomium Monument
A measure is attributed to a decision of a Member State if it is allowed but not mandated by an EU directive. A measure is selective when in practice it is open to fewer undertakings than the ones to which it can potentially apply by its own defined objectives. Introduction   This article examines Commission Decision 2014/686 on a guarantee […]
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20. October 2014  |   State Aid Uncovered by Phedon Nicolaides

i) State Aid Can Be Attributed to the State even when Granted via Faulty Procedures ii) Who Can Challenge a Commission Decision Authorising State Aid?
casino-gambling
For a measure to constitute State aid, it must, among other things, be attributed to a decision of the state. When a State aid granting decision is made in contravention of the procedural rules of an organisation controlled by the state, the decision can still be attributed to the state, unless it can be shown that the state would have […]
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13. October 2014  |   State Aid Uncovered by Phedon Nicolaides

Advantage from High Entry Prices: Can It Be That Both the Commission and the General Court Have Misunderstood Simple Economics?
Athens casino
Price regulation can constitute State aid if the state forgoes potential revenue. However, for price regulation to constitute State aid it must satisfy all of the criteria in Article 107(1). Price regulation that affects all competitors proportionately does not confer an advantage and therefore does not constitute State aid. Introduction   On 11 September 2014, the General Court, in case […]
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6. October 2014  |   State Aid Uncovered by Phedon Nicolaides

i) Domestic Legal Problems Do Not Make the Recovery of Incompatible Aid Absolutely Impossible ii) Role of National Courts in Cases of Non-notified Aid
State Aid Blogs - German flag
The only defence for non-recovery of incompatible State aid is absolute impossibility. Obstacles in domestic legal proceedings may result in absolute impossibility, but Member States have an obligation to inform the Commission and national courts have to seek guidance from the Court of Justice of the European Union. Introduction   This article deals with two aspects of the recovery of […]
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30. September 2014  |   State Aid Uncovered by Phedon Nicolaides

The Jurisdictional Side of Selectivity
Lady Justice
A measure determined independently by similar public entities is not selective even if it varies across those entities. A measure is selective when the entity that has adopted it, applies it differently to undertakings which are within its jurisdiction and in a comparable situation. A public entity may differentiate its measures provided the differentiation can be objectively justified. Introduction   […]
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