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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19. May 2015  |   State Aid Uncovered by Phedon Nicolaides

Public Service Obligations: A Few More Mistakes that Can Be Avoided
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Even efficient companies will fail the 4th Altmark criterion if their costs are not proven to be comparable to those of a typical and well-equipped undertaking. Public funding of infrastructure is not State aid to users only if access is open to all. Public funding for training to raise social awareness is still State aid if it relieves companies of […]
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12. May 2015  |   State Aid Uncovered by Phedon Nicolaides

A National Measure that Does Not Apply at Regional Level Is Not Necessarily Selective
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Where there is a constitutional division of tax competences, different authorities may tax similar activities at different rates.   Introduction This article examines Commission decision SA.34469 on differential tax rates for online and land-based gambling in Spain.[1] In the Spanish political system, regions that have the status of Autonomous Communities have powers of taxation. The issue at hand was which authority […]
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6. May 2015  |   State Aid Uncovered by Phedon Nicolaides

A Market Operator, unlike a Public Authority, Does not Have to Treat all Customers Equally
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In managing infrastructure, a public authority acts as a private operator when it seeks a reasonable return on its investment and also takes into account the alternative of not operating the infrastructure. The manager of an infrastructural project may charge different fees to different users to optimise usage and increase revenue.   Introduction This article reviews Commission decision 2015/506 concerning […]
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29. April 2015  |   State Aid Uncovered by Phedon Nicolaides

Do Free but Compulsory Tests Confer a Selective Advantage?
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State aid rules apply to measures which are either harmonised at EU level or are left to the discretion of Member States. The protection of public health is no sufficient reason for removing a public measure from the scope of Article 107(1). The fact that undertakings are obliged by law to comply with certain tests does not justify the subsidisation […]
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27. April 2015  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – May 2015
gavel
Interested in #Stateaid? Get in touch and write a blog post or a comment for the hub! Stateaidhub[at]lexxion.eu Wednesday 06/05/2015 Judgement in Case C-674/13 Commission v Germany (Court of Justice – Second Chamber) Hearing, Joined Cases T-50/06 RENV II, T-69/06 RENVII Ireland v Commission, Aughinish Alumina v Commission (General Court – First Chamber, Extended Composition)   Wednesday 13/05/2015 Judgement in Case […]
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20. April 2015  |   State Aid Uncovered by Phedon Nicolaides

Land Development
State Aid Blogs - StateAidHub blogpost47 Finance lexxion GBER SMEs
The sale of land and buildings owned by a public authority conforms with the market economy operator principle when i) it is profitable, ii) there is no alternative transaction that is economically more attractive, and iii) the sale is as profitable as similar transactions concluded at the same time.   Introduction The article examines Commission decision 2015/507 concerning the sale […]
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13. April 2015  |   State Aid Uncovered by Phedon Nicolaides

PART II: Green Electricity and Reduction of Energy Taxes for Energy-Intensive Users
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Part II: Support of electricity production from renewable energy sources is normally compatible with the internal market. Reduction of taxes on electricity used by energy-intensive industries is allowed only for certain sectors exposed to international trade and only when they bear a certain cost. Taxes on imported electricity normally infringe free-trade and non-discrimination provisions, unless commensurate benefits are extended to […]
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7. April 2015  |   State Aid Uncovered by Phedon Nicolaides

Green Electricity and Reduction of Energy Taxes for Energy-Intensive Users
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Support of electricity production from renewable energy sources is normally compatible with the internal market. Reduction of taxes on electricity used by energy-intensive industries is allowed only for certain sectors exposed to international trade and only when they bear a certain cost. Taxes on imported electricity normally infringe free-trade and non-discrimination provisions, unless commensurate benefits are extended to imported electricity. […]
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1. April 2015  |   State Aid Uncovered by Phedon Nicolaides

State Guarantees
State Aid Blogs - StateAidHub blogpost39 promotionalbank
The amount of State aid in a guarantee that makes possible the granting of a loan to a well-collateralised firm in difficulty is not the difference in premium but the difference in interest rates. Beneficiaries of guarantees not notified to the Commission do not have any remedy under EU law. Introduction   Last week’s article examined State aid in the […]
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30. March 2015  |   Guest State Aid Blog by Lexxion Publisher

Court’s Diary – April 2015
gavel
Got something to say about State Aid? Want to write something on our Blog? Get in touch with us at Stateaidhub[at]lexxion.eu Thursday 16/04/2015 Judgment in Case C-690/13 Trapeza Eurobank Ergasias (Court of Justice – Ninth Chamber)   Monday 20/04/2015 Hearing in Case C-357/14 P Dunamenti Erőmű v Commission (Court of Justice – Third Chamber)   Wednesday 22/04/2015 Hearing in Case T-499/12 HSH Investment Holdings Coinvest-C and […]
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18. October 2013  |   State Aid Uncovered by Phedon Nicolaides

A Case of Public Funding of Infrastructure that Does not Constitute State Aid: But Many Questions Remain
fortress
Introduction After the landmark judgment in Leipzig-Halle, public authorities are justifiably careful to ensure that the infrastructure they fund is either free of State aid or, if that is unavoidable, that the State aid is compatible with the internal market. Recent cases have shown that there are two problems in this regard. First, public authorities must verify whether the organisations […]
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11. October 0213  |   State Aid Uncovered by Phedon Nicolaides

New Case Law on Incentive Effect, “Private Borrower”, Advantage, Compensation, SGEI and Market Failure
gavel on a laptop
Introduction   The posting reviews three recent rulings of the General Court. They are significant because they introduce substantial nuances in the case law concerning the concepts of incentive effect, compensation for structural impediment, the designation of an activity as a service of general economic interest (SGEI) and the connection between market failure and SGEI. On the whole, the Court […]
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4. October 2013  |   State Aid Uncovered by Phedon Nicolaides

The Offsetting of a Structural Disadvantage Is still State Aid
scale and a book
Introduction Normally it is conceptually and technically fairly easy to determine whether an undertaking benefits from a public measure. However, this task becomes considerably more difficult in two situations: i) when a public authority claims that it acts like a private investor and ii) when a public measure is intended to compensate for a disadvantage suffered by the beneficiary undertaking […]
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26. September 2013  |   State Aid Uncovered by Phedon Nicolaides

The Emerging Doctrine of Inseparability and Compensation for Public Service Obligations [T-347/09, Germany v Commission]
hands in a forest
Introduction In the landmark judgment in Leipzig Halle, the General Court stated that infrastructure which is inseparable from economic activity is itself economic and its public funding can fall in principle within the scope of Article 107(1) TFEU. The Court of Justice has confirmed this principle. On 12 September 2013, the General Court in its judgment in case T-347/09, Germany […]
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14. September 2013  |   State Aid Uncovered by Phedon Nicolaides

Privatisation of Aeroportos de Portugal: Conflict between the National Economic Adjustment Programme and State Aid Rules?
people at the airport
Background Portugal notified to the Commission the privatisation of the “Aeroportos de Portugal” [ANA] for reasons of legal certainty [SA.36197].[1] ANA is the operator of most Portuguese airports. It manages eight airports across Portugal (Lisbon, Porto, Faro, Beja, and 4 airports in the Azores) that account for the vast majority of the commercial air traffic in the country. It is worth […]
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2. September 2013  |   State Aid Uncovered by Phedon Nicolaides

Altmark and Public Procurement: Definition and Award of Contracts
handshake
Introduction Ever since the Court of Justice ruled on Altmark ten years ago there has been a growing literature on the specific conditions that have to be satisfied so that public assistance to a provider of services of general economic interest [SGEI] does not constitute state aid. In this context, the relationship between the Altmark criteria and the public procurement […]
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23. August 2013  |   State Aid Uncovered by Phedon Nicolaides

Selectivity and Administrative Discretion
computer keyboard
On 18 July 2013, in case C-6/12, the Court of Justice of the European Union rendered a judgment on an interesting aspect of the concept of selectivity.[1] The judgment concerned a request for preliminary ruling in a dispute between “P Oy”, a Finnish company, and Finnish tax authorities. The tax authorities refused to allow P Oy to deduct losses incurred in […]
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15. August 2013  |   State Aid Uncovered by Phedon Nicolaides

The Confusion between Necessity and Proportionality of State Aid [Case SA.35738: Public Funding of Port Infrastructure]
port
Introduction Several postings in this blog have examined cases concerning funding of port, airport or sport infrastructure. These cases have all had interesting peculiarities. Some involved no state aid because public authorities acted as private investors, while in other cases the funding arrangements were designed in such a way so that the state aid to operators would not spill over […]
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14. July 2013  |   State Aid Uncovered by Phedon Nicolaides

The Flexible Boundary between Economic and Non-economic Activities
gavel, animal figures, euros
This is a rather long posting divided into two parts both of which deal with the concept of economic activity. In part I, I analyse two cases outside the field of state aid that dealt with the concepts of undertaking and economic activity. Both of them originated in legal proceedings initiated before Austrian courts. In part II (that will come […]
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5. July 2013  |   State Aid Uncovered by Phedon Nicolaides

How to Use Economic Tools to Ensure the Proportionality of Aid (Commission Decision SA.34938 on a gas storage facility in Poland)
industry
Introduction Normally, economic analysis is used by the Commission to find out whether a measure confers an abnormal advantage to an undertaking. This would be the case, for example, when a public authority makes an investment that generates a return that falls below what the market would demand. The recipient undertaking derives an abnormal advantage [i.e. an advantage that would […]
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