Europäisches Beihilfenrecht Blog

State Aid Uncovered Blog

In Lexxions Blog „State Aid Uncovered” veröffentlicht Prof. Phedon Nicolaides wöchentlich kritische Analysen zu den neuesten Urteilen und Entscheidungen zu staatlichen Beihilfen. Jeder Beitrag stellt die wichtigsten Punkte eines Gerichtsurteils oder einer EU-Kommissionsentscheidung vor, ordnet sie in den Kontext ähnlicher Rechtsprechung oder Praxis ein, bewertet die zugrundeliegende Argumentation und zeigt etwaige Ungereimtheiten oder Widersprüche auf.

In loser Folge werden auf diesem Blog auch Gastbeiträge von anderen Experten für staatliche Beihilfen veröffentlicht, welche die Inhalte der Blogbeiträge ergänzen.

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Professor at Maastricht University; Professor at University of Nicosia, and Academic Director at Lexxion Training

State Aid Uncovered ×

Compensation for Non-payment of State Aid Can Constitute State Aid

Introduction A perennial question by aggrieved investors who feel cheated by u-turns in public policy is: “May I claim compensation for damage that I have suffered as a result of non-payment of the State aid that was promised to me?” As a result of recent case law, it is now clear that there are several answers to this question: First, […]

i) Compensation Can Be State Aid ii) Failure to Act

Introduction This article reviews two judgments concerning a claim that compensation does not constitute State aid and a complaint that the Commission had failed to act, respectively. The latter case is particularly interesting because it is probably the only judgment in the past decade or two that the Court of Justice has actually upheld a claim that the Commission breached […]

Although Member States Are Free to Determine their Tax Systems, they Must still Conform with State Aid Rules

Introduction On 10 September 2024, the Court of Justice [CJEU] delivered its much anticipated judgment, in case C-465/20 P, Commission v Ireland & Apple. It ruled that Ireland had granted incompatible State aid to Apple through preferential tax rulings.[1] The judgment was the result of an appeal by the Commission against the judgment of the General Court in case T-778/16, Ireland […]

A State-Owned Company Acts as a Private Investor – Part II

Part II: Advantage The Commission, first, explained that the “(80) intervention must be considered as a whole, considering the purpose and timing of the various stages in which AMCO’s intervention is to be made, within the context and contents of the second arrangement proposal. Whether or not a transaction is in line with market conditions must be established through a […]

A State-Owned Company Acts as a Private Investor

Introduction When a party to a financial transaction is a company that is owned and controlled by the state, it is difficult to determine whether the transaction is free of State aid. This is because it is not easy to prove that the state had no influence over the decision of the company to carry out that transaction. The Commission […]

The Existence of State Aid Must Be Proven on the Basis of Credible Evidence

Introduction This article reviews two cases in which courts found that it had not been proven that all of the criteria of Article 107(1) TFEU had been satisfied. Case I: Not being able to prove that the measure is attributed to a decision of the state With decision 2024/2033, published in OJ L, 29 July 2024, the Commission corrected its […]

Green Energy Certificates

Introduction Certificates that confirm that an undertaking has bought a certain amount of electricity from renewable sources do not normally involve State aid because they are not traded. However, when they are tradeable and are granted by a public authority for free or for a fee that falls below their market value, they normally involve State aid as they confer […]

Obligations Imposed by the State Cannot Justify Tax Exemptions

Introduction Over the past decade or so, the European Commission has found that multiple port operators have benefitted from State aid in the form of tax exemptions. This aid was in all cases found to be incompatible with the internal market, despite the claims of the port operators that the state had imposed on the public service obligations or that […]

Special Tax Treatment for a Major Infrastructure Project

Introduction In April 2013, the Commission received a complaint alleging that State aid had been granted to the Oresund fixed link. The link is a major transport infrastructure project consisting of a bridge, an artificial island and tunnels between Denmark and Sweden. In October 2014, the Commission concluded that the public funding of the hinterland road and rail connections was […]

Public Procurement and State Aid

Introduction A faulty public procurement procedure or the use of discriminatory selection criteria can confer an advantage on the chosen undertaking that may constitute an advantage in the meaning of Article 107(1) TFEU. The result will be infringement of both public procurement rules and State aid rules. A recent Commission decision, SA.47650, is instructive on how Member States should design […]

State Aid Uncovered ×

Compensation for Non-payment of State Aid Can Constitute State Aid

Introduction A perennial question by aggrieved investors who feel cheated by u-turns in public policy is: “May I claim compensation for damage that I have suffered as a result of non-payment of the State aid that was promised to me?” As a result of recent case law, it is now clear that there are several answers to this question: First, […]

i) Compensation Can Be State Aid ii) Failure to Act

Introduction This article reviews two judgments concerning a claim that compensation does not constitute State aid and a complaint that the Commission had failed to act, respectively. The latter case is particularly interesting because it is probably the only judgment in the past decade or two that the Court of Justice has actually upheld a claim that the Commission breached […]

Although Member States Are Free to Determine their Tax Systems, they Must still Conform with State Aid Rules

Introduction On 10 September 2024, the Court of Justice [CJEU] delivered its much anticipated judgment, in case C-465/20 P, Commission v Ireland & Apple. It ruled that Ireland had granted incompatible State aid to Apple through preferential tax rulings.[1] The judgment was the result of an appeal by the Commission against the judgment of the General Court in case T-778/16, Ireland […]

A State-Owned Company Acts as a Private Investor – Part II

Part II: Advantage The Commission, first, explained that the “(80) intervention must be considered as a whole, considering the purpose and timing of the various stages in which AMCO’s intervention is to be made, within the context and contents of the second arrangement proposal. Whether or not a transaction is in line with market conditions must be established through a […]

A State-Owned Company Acts as a Private Investor

Introduction When a party to a financial transaction is a company that is owned and controlled by the state, it is difficult to determine whether the transaction is free of State aid. This is because it is not easy to prove that the state had no influence over the decision of the company to carry out that transaction. The Commission […]

The Existence of State Aid Must Be Proven on the Basis of Credible Evidence

Introduction This article reviews two cases in which courts found that it had not been proven that all of the criteria of Article 107(1) TFEU had been satisfied. Case I: Not being able to prove that the measure is attributed to a decision of the state With decision 2024/2033, published in OJ L, 29 July 2024, the Commission corrected its […]

Green Energy Certificates

Introduction Certificates that confirm that an undertaking has bought a certain amount of electricity from renewable sources do not normally involve State aid because they are not traded. However, when they are tradeable and are granted by a public authority for free or for a fee that falls below their market value, they normally involve State aid as they confer […]

Obligations Imposed by the State Cannot Justify Tax Exemptions

Introduction Over the past decade or so, the European Commission has found that multiple port operators have benefitted from State aid in the form of tax exemptions. This aid was in all cases found to be incompatible with the internal market, despite the claims of the port operators that the state had imposed on the public service obligations or that […]

Special Tax Treatment for a Major Infrastructure Project

Introduction In April 2013, the Commission received a complaint alleging that State aid had been granted to the Oresund fixed link. The link is a major transport infrastructure project consisting of a bridge, an artificial island and tunnels between Denmark and Sweden. In October 2014, the Commission concluded that the public funding of the hinterland road and rail connections was […]

Public Procurement and State Aid

Introduction A faulty public procurement procedure or the use of discriminatory selection criteria can confer an advantage on the chosen undertaking that may constitute an advantage in the meaning of Article 107(1) TFEU. The result will be infringement of both public procurement rules and State aid rules. A recent Commission decision, SA.47650, is instructive on how Member States should design […]

State Aid Uncovered ×

Compensation for Non-payment of State Aid Can Constitute State Aid

Introduction A perennial question by aggrieved investors who feel cheated by u-turns in public policy is: “May I claim compensation for damage that I have suffered as a result of non-payment of the State aid that was promised to me?” As a result of recent case law, it is now clear that there are several answers to this question: First, […]

i) Compensation Can Be State Aid ii) Failure to Act

Introduction This article reviews two judgments concerning a claim that compensation does not constitute State aid and a complaint that the Commission had failed to act, respectively. The latter case is particularly interesting because it is probably the only judgment in the past decade or two that the Court of Justice has actually upheld a claim that the Commission breached […]

Although Member States Are Free to Determine their Tax Systems, they Must still Conform with State Aid Rules

Introduction On 10 September 2024, the Court of Justice [CJEU] delivered its much anticipated judgment, in case C-465/20 P, Commission v Ireland & Apple. It ruled that Ireland had granted incompatible State aid to Apple through preferential tax rulings.[1] The judgment was the result of an appeal by the Commission against the judgment of the General Court in case T-778/16, Ireland […]

A State-Owned Company Acts as a Private Investor – Part II

Part II: Advantage The Commission, first, explained that the “(80) intervention must be considered as a whole, considering the purpose and timing of the various stages in which AMCO’s intervention is to be made, within the context and contents of the second arrangement proposal. Whether or not a transaction is in line with market conditions must be established through a […]

A State-Owned Company Acts as a Private Investor

Introduction When a party to a financial transaction is a company that is owned and controlled by the state, it is difficult to determine whether the transaction is free of State aid. This is because it is not easy to prove that the state had no influence over the decision of the company to carry out that transaction. The Commission […]

The Existence of State Aid Must Be Proven on the Basis of Credible Evidence

Introduction This article reviews two cases in which courts found that it had not been proven that all of the criteria of Article 107(1) TFEU had been satisfied. Case I: Not being able to prove that the measure is attributed to a decision of the state With decision 2024/2033, published in OJ L, 29 July 2024, the Commission corrected its […]

Green Energy Certificates

Introduction Certificates that confirm that an undertaking has bought a certain amount of electricity from renewable sources do not normally involve State aid because they are not traded. However, when they are tradeable and are granted by a public authority for free or for a fee that falls below their market value, they normally involve State aid as they confer […]

Obligations Imposed by the State Cannot Justify Tax Exemptions

Introduction Over the past decade or so, the European Commission has found that multiple port operators have benefitted from State aid in the form of tax exemptions. This aid was in all cases found to be incompatible with the internal market, despite the claims of the port operators that the state had imposed on the public service obligations or that […]

Special Tax Treatment for a Major Infrastructure Project

Introduction In April 2013, the Commission received a complaint alleging that State aid had been granted to the Oresund fixed link. The link is a major transport infrastructure project consisting of a bridge, an artificial island and tunnels between Denmark and Sweden. In October 2014, the Commission concluded that the public funding of the hinterland road and rail connections was […]

Public Procurement and State Aid

Introduction A faulty public procurement procedure or the use of discriminatory selection criteria can confer an advantage on the chosen undertaking that may constitute an advantage in the meaning of Article 107(1) TFEU. The result will be infringement of both public procurement rules and State aid rules. A recent Commission decision, SA.47650, is instructive on how Member States should design […]

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