Europäisches Beihilfenrecht Blog

State Aid Uncovered by Prof Phedon Nicolaides

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

- The Court of Justice ×

The Recovery of Incompatible Aid Cannot be Absolutely Impossible Unless it is first Attempted

Introduction In its ruling of 6 November 2018 in cases C‑622/16 P to C‑624/16 P, Scuola Elementare Maria Montessori v European Commission, the Court of Justice made it harder for Member States to escape from their recovery obligations.[1] Montessori appealed against the judgment of the General Court in case T‑220/13, Scuola Elementare Maria Montessori v European Commission. That judgment was reviewed here on […]

Legal Standing of Investors in Failed Banks

Investors that lodge claims before national courts for damages from resolution of banks have legal standing to request annulment of Commission decisions authorising State aid to those banks. Introduction It is now ten years since the start of the financial crisis. In these ten years, the Commission has adopted about 500 decisions dealing with State aid to banks and other […]

Tax Inseparably Linked to State Aid

Taxes which are inseparably linked with an aid measure are assessed together with the aid itself.  An increase of the budget of an aid scheme by more than 20% constitutes a change of existing aid that must be notified to the Commission for prior authorisation.   Introduction Taxpayers may not refuse to pay taxes on the grounds that the tax […]

Public Service Obligations Must be Properly Defined and Selectivity Must be Proven [1]

Neither the existence of market failure, nor national laws that designate a service to be in the general interest can replace an official act that assigns to one or more undertakings clearly defined public service obligations.   Introduction The proper definition of public service obligations (PSOs) is an issue that arises with surprising regularity. It is surprising because numerous court […]

Unlimited State Guarantees

Unlimited state guarantees create a presumption that the recipient of the guarantee obtains an advantage in the form of cheaper credit. Any advantage in the form of lower risk in transactions with suppliers or clients has to be proven.   Introduction State guarantees must be limited in time and amount and may cover only a specified event. Unlimited and general […]

Selectivity Can Exist at Different Levels: The Case of the Spanish Tax Lease System

A tax measure may be selective in relation to both intermediate and final beneficiaries.  An undertaking may enjoy a selective advantage even if it passes all tax benefits to other parties.   Introduction A measure that is not selective at one level may be selective at another level and a measure that is selective at one level can also be […]

The Compatibility of State Aid Depends on the Rules which are Applicable at the Time the Aid is Granted

Failure to comply with just a single provision of an exemption regulation results in the non-applicability of the whole regulation and makes any implemented aid measure automatically illegal. The compatibility of aid measures adopted in the past but continuing having effects are assessed not on the basis of old rules but on the basis of the rules which are applicable […]

The Extent of the Discretion of Member States to Define Services of General Economic Interest (SGEI)

A service is classified as an SGEI not only when it is important for citizens but also when the market does not adequately supply it and one or more undertakings are compelled to provide it to specified consumers, in specified areas and on specified terms.   Introduction   The Treaty on the Functioning of the EU and the case law […]

Exemption from Taxes that Protect the Environment May not be Selective – Part II

Member States have discretion to impose taxes that penalise environmentally harmful activities. Exemption of undertakings whose activities do not harm the environment does not constitute State aid whenever the exempted undertakings are not in a comparable situation.   Application of Article 107(1) to the Asturias tax   In this case, exempted establishments were those with sales area less than 4000m2 or […]

State Resources and Imputability

When the state acts in its capacity as legislator it is not presumed to direct the resources of undertakings it owns and over which it can exercise dominant influence as a shareholder. Introduction On 13 September 2017, the Court of Justice replied to a request from a national court to advise it on the concept of state resources [case C‑329/15, […]

- The Court of Justice ×

The Recovery of Incompatible Aid Cannot be Absolutely Impossible Unless it is first Attempted

Introduction In its ruling of 6 November 2018 in cases C‑622/16 P to C‑624/16 P, Scuola Elementare Maria Montessori v European Commission, the Court of Justice made it harder for Member States to escape from their recovery obligations.[1] Montessori appealed against the judgment of the General Court in case T‑220/13, Scuola Elementare Maria Montessori v European Commission. That judgment was reviewed here on […]

Legal Standing of Investors in Failed Banks

Investors that lodge claims before national courts for damages from resolution of banks have legal standing to request annulment of Commission decisions authorising State aid to those banks. Introduction It is now ten years since the start of the financial crisis. In these ten years, the Commission has adopted about 500 decisions dealing with State aid to banks and other […]

Tax Inseparably Linked to State Aid

Taxes which are inseparably linked with an aid measure are assessed together with the aid itself.  An increase of the budget of an aid scheme by more than 20% constitutes a change of existing aid that must be notified to the Commission for prior authorisation.   Introduction Taxpayers may not refuse to pay taxes on the grounds that the tax […]

Public Service Obligations Must be Properly Defined and Selectivity Must be Proven [1]

Neither the existence of market failure, nor national laws that designate a service to be in the general interest can replace an official act that assigns to one or more undertakings clearly defined public service obligations.   Introduction The proper definition of public service obligations (PSOs) is an issue that arises with surprising regularity. It is surprising because numerous court […]

Unlimited State Guarantees

Unlimited state guarantees create a presumption that the recipient of the guarantee obtains an advantage in the form of cheaper credit. Any advantage in the form of lower risk in transactions with suppliers or clients has to be proven.   Introduction State guarantees must be limited in time and amount and may cover only a specified event. Unlimited and general […]

Selectivity Can Exist at Different Levels: The Case of the Spanish Tax Lease System

A tax measure may be selective in relation to both intermediate and final beneficiaries.  An undertaking may enjoy a selective advantage even if it passes all tax benefits to other parties.   Introduction A measure that is not selective at one level may be selective at another level and a measure that is selective at one level can also be […]

The Compatibility of State Aid Depends on the Rules which are Applicable at the Time the Aid is Granted

Failure to comply with just a single provision of an exemption regulation results in the non-applicability of the whole regulation and makes any implemented aid measure automatically illegal. The compatibility of aid measures adopted in the past but continuing having effects are assessed not on the basis of old rules but on the basis of the rules which are applicable […]

The Extent of the Discretion of Member States to Define Services of General Economic Interest (SGEI)

A service is classified as an SGEI not only when it is important for citizens but also when the market does not adequately supply it and one or more undertakings are compelled to provide it to specified consumers, in specified areas and on specified terms.   Introduction   The Treaty on the Functioning of the EU and the case law […]

Exemption from Taxes that Protect the Environment May not be Selective – Part II

Member States have discretion to impose taxes that penalise environmentally harmful activities. Exemption of undertakings whose activities do not harm the environment does not constitute State aid whenever the exempted undertakings are not in a comparable situation.   Application of Article 107(1) to the Asturias tax   In this case, exempted establishments were those with sales area less than 4000m2 or […]

State Resources and Imputability

When the state acts in its capacity as legislator it is not presumed to direct the resources of undertakings it owns and over which it can exercise dominant influence as a shareholder. Introduction On 13 September 2017, the Court of Justice replied to a request from a national court to advise it on the concept of state resources [case C‑329/15, […]

- The Court of Justice ×

The Recovery of Incompatible Aid Cannot be Absolutely Impossible Unless it is first Attempted

Introduction In its ruling of 6 November 2018 in cases C‑622/16 P to C‑624/16 P, Scuola Elementare Maria Montessori v European Commission, the Court of Justice made it harder for Member States to escape from their recovery obligations.[1] Montessori appealed against the judgment of the General Court in case T‑220/13, Scuola Elementare Maria Montessori v European Commission. That judgment was reviewed here on […]

Legal Standing of Investors in Failed Banks

Investors that lodge claims before national courts for damages from resolution of banks have legal standing to request annulment of Commission decisions authorising State aid to those banks. Introduction It is now ten years since the start of the financial crisis. In these ten years, the Commission has adopted about 500 decisions dealing with State aid to banks and other […]

Tax Inseparably Linked to State Aid

Taxes which are inseparably linked with an aid measure are assessed together with the aid itself.  An increase of the budget of an aid scheme by more than 20% constitutes a change of existing aid that must be notified to the Commission for prior authorisation.   Introduction Taxpayers may not refuse to pay taxes on the grounds that the tax […]

Public Service Obligations Must be Properly Defined and Selectivity Must be Proven [1]

Neither the existence of market failure, nor national laws that designate a service to be in the general interest can replace an official act that assigns to one or more undertakings clearly defined public service obligations.   Introduction The proper definition of public service obligations (PSOs) is an issue that arises with surprising regularity. It is surprising because numerous court […]

Unlimited State Guarantees

Unlimited state guarantees create a presumption that the recipient of the guarantee obtains an advantage in the form of cheaper credit. Any advantage in the form of lower risk in transactions with suppliers or clients has to be proven.   Introduction State guarantees must be limited in time and amount and may cover only a specified event. Unlimited and general […]

Selectivity Can Exist at Different Levels: The Case of the Spanish Tax Lease System

A tax measure may be selective in relation to both intermediate and final beneficiaries.  An undertaking may enjoy a selective advantage even if it passes all tax benefits to other parties.   Introduction A measure that is not selective at one level may be selective at another level and a measure that is selective at one level can also be […]

The Compatibility of State Aid Depends on the Rules which are Applicable at the Time the Aid is Granted

Failure to comply with just a single provision of an exemption regulation results in the non-applicability of the whole regulation and makes any implemented aid measure automatically illegal. The compatibility of aid measures adopted in the past but continuing having effects are assessed not on the basis of old rules but on the basis of the rules which are applicable […]

The Extent of the Discretion of Member States to Define Services of General Economic Interest (SGEI)

A service is classified as an SGEI not only when it is important for citizens but also when the market does not adequately supply it and one or more undertakings are compelled to provide it to specified consumers, in specified areas and on specified terms.   Introduction   The Treaty on the Functioning of the EU and the case law […]

Exemption from Taxes that Protect the Environment May not be Selective – Part II

Member States have discretion to impose taxes that penalise environmentally harmful activities. Exemption of undertakings whose activities do not harm the environment does not constitute State aid whenever the exempted undertakings are not in a comparable situation.   Application of Article 107(1) to the Asturias tax   In this case, exempted establishments were those with sales area less than 4000m2 or […]

State Resources and Imputability

When the state acts in its capacity as legislator it is not presumed to direct the resources of undertakings it owns and over which it can exercise dominant influence as a shareholder. Introduction On 13 September 2017, the Court of Justice replied to a request from a national court to advise it on the concept of state resources [case C‑329/15, […]

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