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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14. November 2023  |   State Aid Uncovered by Phedon Nicolaides

Start of Works
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Introduction Perhaps the most important criterion for the compatibility of State aid with the internal market is the incentive effect. This means that State aid is capable of changing the behaviour of the recipient undertaking. State aid is normally considered not to have an incentive effect when the recipient undertaking is already committed to launch a project or has already […]
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7. November 2023  |   State Aid Uncovered by Phedon Nicolaides

Whether a Tax Measure Grants New Aid Must also be Assessed in the Context of the Relevant National Case Law
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Introduction The application of the concept of selectivity to tax measures requires a comparison of undertakings or activities that are in a similar factual or legal situation. A tax measure that differentiates between similar undertakings or activities is selective in the meaning of Article 107(1) TFEU, unless the differentiation can be justified on objective reasons. It follows that the proper […]
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31. October 2023  |   State Aid Uncovered by Phedon Nicolaides

A Complex Measure of Investment and Operating Aid to an Airport and Airlines (Part II)
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Introduction In July 2008, the Commission received complaints alleging that France granted State aid to the operator of La Rochelle airport and certain airlines. Almost four years later, in February 2012, the Commission decided to open the formal investigation procedure. It eventually adopted a decision in July 2022 [Commission decision 2023/1683] which found compatible State aid for the airport, incompatible […]
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24. October 2023  |   State Aid Uncovered by Phedon Nicolaides

A Complex Measure of Investment and Operating Aid to an Airport and Airlines (Part I)
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Introduction In July 2008, the Commission received complaints alleging that France granted State aid to the operator of La Rochelle airport and certain airlines. Almost four years later, in February 2012, the Commission decided to open the formal investigation procedure. It eventually adopted a decision in July 2022 [Commission decision 2023/1683] which found compatible State aid for the airport, incompatible […]
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17. October 2023  |   State Aid Uncovered by Phedon Nicolaides

Compensation for Damage
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Introduction On 28 September 2023, the Court of Justice, in case C-320/21 P, Ryanair v European Commission, delivered its first judgment in a series of appeals brought by Ryanair challenging the dismissal by the General Court of its action in multiple cases seeking the annulment of various Commission decisions authorising aid to airlines during the covid-19 pandemic. Both before the […]
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10. October 2023  |   State Aid Uncovered by Phedon Nicolaides

Advance Tax Rulings
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Introduction In 2016, the Commission found, in decision 2016/1699, that advance tax rulings [ATRs] that had been provided by Belgium to multi-national companies [MNCs] with establishments in Belgium constituted State aid because the ATRs set the taxable income of those companies according to a hypothetical average income rather than their actual income. The profit that exceeded that hypothetical average was […]
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2. October 2023  |   State Aid Uncovered by Phedon Nicolaides

The Harm Caused by State aid and the Delineation of the Relevant Market
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Introduction A competitor of an aid recipient who wants to challenge a Commission decision authorising State aid must either show that the aid harms it directly and individually – i.e. its interests are seriously affected to a larger extent than anyone else – or that the Commission should have had doubts about the compatibility of the aid during the preliminary […]
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26. September 2023  |   State Aid Uncovered by Phedon Nicolaides

Non-imposition of Fines on Non-illegal Behaviour
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Introduction Advantage is any benefit that an undertaking obtains from the intervention of the state. In some situations, however, an undertaking may derive an advantage the non-intervention of the state or, more broadly, from the failure of the state to act. This would be the case where the state does not charge a fee to a user of a state […]
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19. September 2023  |   by Phedon Nicolaides

When Are Decisions of State-owned Companies Imputed to the State?
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Introduction According to Article 4 of Regulation 2015/1589 [the Procedural Regulation], when the Commission, after a preliminary examination of a State aid measure, has doubts as to the absence of State aid or the compatibility of the aid with the internal market, it must open the formal examination procedure. The case law says that doubts arise when the Commission encounters […]
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12. September 2023  |   State Aid Uncovered by Phedon Nicolaides

Decarbonisation
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Introduction The Netherlands intends to reduce the emission of greenhouse gasses [GHG] by 55% by the year 2050. For this reason, in June 2023 it notified to the Commission a new version of a scheme, called the “Stimulering Duurzame Energieproductie en Klimaattransitie” [SDE++] which loosely translated means incentivising sustainable production of energy and climate transition. Its purpose is to fund […]
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10. October 2023  |   State Aid Uncovered by Phedon Nicolaides

Advance Tax Rulings
State Aid Blogs - Untitled design 26
Introduction In 2016, the Commission found, in decision 2016/1699, that advance tax rulings [ATRs] that had been provided by Belgium to multi-national companies [MNCs] with establishments in Belgium constituted State aid because the ATRs set the taxable income of those companies according to a hypothetical average income rather than their actual income. The profit that exceeded that hypothetical average was […]
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No Comments
2. October 2023  |   State Aid Uncovered by Phedon Nicolaides

The Harm Caused by State aid and the Delineation of the Relevant Market
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Introduction A competitor of an aid recipient who wants to challenge a Commission decision authorising State aid must either show that the aid harms it directly and individually – i.e. its interests are seriously affected to a larger extent than anyone else – or that the Commission should have had doubts about the compatibility of the aid during the preliminary […]
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26. September 2023  |   State Aid Uncovered by Phedon Nicolaides

Non-imposition of Fines on Non-illegal Behaviour
State Aid Blogs - Untitled design 9
Introduction Advantage is any benefit that an undertaking obtains from the intervention of the state. In some situations, however, an undertaking may derive an advantage the non-intervention of the state or, more broadly, from the failure of the state to act. This would be the case where the state does not charge a fee to a user of a state […]
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12. September 2023  |   State Aid Uncovered by Phedon Nicolaides

Decarbonisation
State Aid Blogs - Untitled design 6
Introduction The Netherlands intends to reduce the emission of greenhouse gasses [GHG] by 55% by the year 2050. For this reason, in June 2023 it notified to the Commission a new version of a scheme, called the “Stimulering Duurzame Energieproductie en Klimaattransitie” [SDE++] which loosely translated means incentivising sustainable production of energy and climate transition. Its purpose is to fund […]
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5. September 2023  |   State Aid Uncovered by Phedon Nicolaides

Transition to a Net-Zero Economy
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Introduction Although the TCTF requires notification of aid measures, it seems to be more user-friendly than State aid guidelines. This is because Member States may simply copy its provisions in their local law or administrative instrument and sent it to the Commission. A case in point is a German scheme that is reviewed in this article. It was notified to […]
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29. August 2023  |   State Aid Uncovered by Phedon Nicolaides

Electricity Storage
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Introduction As indicated by its title, the Temporary Crisis and Transition Framework [TCTF] allows for State aid whose purpose goes beyond the immediate relief of the costs of the market disruption caused by the Russian invasion of Ukraine. Europe’s energy policy does not only aim to reduce dependence on Russian gas, but also to shift to low or zero carbon […]
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14. August 2023  |   State Aid Uncovered by Phedon Nicolaides

A Large Investment Project (Part I)
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Introduction According to the latest edition of the State aid Scoreboard, in 2021, Member States granted EUR 14 billion of aid to support regional development. That amount corresponded to about 10% of the total non-crisis aid. What is perhaps more interesting is that close to EUR 12.5 billion or 90% of the total regional aid was granted on the basis […]
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7. August 2023  |   State Aid Uncovered by Phedon Nicolaides

Decarbonisation of Steel Production
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Introduction Many, perhaps the majority, of notifications on the basis of the Guidelines on Climate, Environmental Protection and Energy [CEEAG] concern decarbonisation of production processes. In this context, large amounts of State aid have been funnelled to the decarbonisation of steel production. ArcelorMittal has been a major beneficiary. In February 2023, Spain granted EUR 460 million to support ArcelorMittal to […]
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18. July 2023  |   State Aid Uncovered by Phedon Nicolaides

The Non-economic Nature of a Public Health System and Regional Development
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Introduction This article reviews two judgments: On a public health system and on regional development through capital injections. I. Public health system On 27 April 2023, the Court of Justice rendered its judgment in case C-492/21 P, Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v European Commission.[1] Casa Regina Apostolorum della Pia Società delle Figlie di […]
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10. July 2023  |   State Aid Uncovered by Phedon Nicolaides

Regional Operating Aid
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Introduction On 21 June 2023, the General Court delivered its judgment in case T-131/21, Região Autónoma da Madeira v European Commission.[1] It rejected the action of the Autonomous Region of Madeira [ARM] by which it sought the annulment of Commission decision 2022/1414 on aid scheme implemented by Portugal for the Madeira Free Zone or Zona Franca da Madeira [ZFM]. The […]
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28. November 2014  |   Guest State Aid Blog by Erika Szyszczak

State Aid for Nuclear Power: No Thanks! Maybe? Yes Please!
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The Commission’s decision on the Hinkley Point C nuclear power station of 8th October 2014 and what this might mean for the approach to nuclear energy… In 2014, the European Commission adopted new Guidelines on State aid for energy and the environment. These were followed by the adoption of a new General Block Exemption Regulation that also included measures relating to energy […]
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27. November 2014  |   Guest State Aid Blog by Juan Jorge Piernas Lopez

Tax Rulings and State Aid: Now or Never
apple fiat starbucks
This comment looks at the Commission’s decisions to open in-depth investigations into the tax treatment of Apple, Starbucks and Fiat Finance and Trade by Ireland, The Netherlands and Luxembourg.   The European Commission has recently opened three in-depth investigations under Article 108(2) TFEU concerning tax rulings in Ireland, The Netherlands and Luxembourg with regard to the corporate income tax to be paid by Apple, Starbucks […]
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