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

16. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Repayment of Incompatible State Aid Is Inescapable

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Introduction Companies may pay taxes in several Member States of the EU or in third countries. This fact by itself has no bearing in an assessment of whether preferential tax treatment in a Member State may constitute State aid. However, it becomes relevant when incompatible aid is to be recovered and the granting Member State has to determine the amount […]

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9. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

The Commission May Authorise a Public Measure only if it Constitutes State Aid

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Introduction Sometimes the Commission is uncertain whether a public measure constitutes State aid. Nonetheless, it decides not raise objections on the grounds that if the measure constituted State aid, it would be compatible with the internal market. One can understand why the Commission follows this approach. If it is not sure whether a measure falls outside the scope of Article […]

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2. Juli 2024 | State Aid Uncovered von Phedon Nicolaides

Green Energy Certificates

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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 […]

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25. Juni 2024 | von Phedon Nicolaides

Aid Measures with Limited Beneficiaries

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Introduction During the covid-19 pandemic Member States granted State aid to undertakings they considered important for their economies or for maintaining their connectivity with the rest of the world. Ryanair appealed against multiple Commission decisions authorising that aid. Ryanair succeeded in some of its challenges on technical issues. It lost all other cases on issues of principle. On 6 June […]

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18. Juni 2024 | State Aid Uncovered von Phedon Nicolaides

Obligations Imposed by the State Cannot Justify Tax Exemptions

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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 […]

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11. Juni 2024 | State Aid Uncovered von Phedon Nicolaides

Member States May Grant State Aid to Single Beneficiaries

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Introduction The European Court of Justice confirmed, once more, on 30 May 2024, in case C-353/21 P, Ryanair v Commission, that Member States do not have to grant State aid to all undertakings that may be affected by a serious economic disturbance such as a pandemic.2 This is because Member States do not have unlimited resources and because they may […]

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4. Juni 2024 | State Aid Uncovered von Phedon Nicolaides

Special Tax Treatment for a Major Infrastructure Project

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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 […]

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28. Mai 2024 | State Aid Uncovered von Phedon Nicolaides

A Research Project Based on Collaboration with a Research Organisation

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Introduction After pre-notification contacts, Croatia notified, in March 2023, State aid amounting to a EUR 179.5 million for an R&D project regarding the development of an innovative autonomous electric vehicle [a “robo-taxi”]. The aid, in the form of a grant, was to be provided to Project 3 Mobility LLC [P3M]. The Commission approved it in decision SA.101759.1 The aid beneficiary, […]

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21. Mai 2024 | State Aid Uncovered von Phedon Nicolaides

Authorisation of State Aid after the Start of a Project

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Introduction In June 2021, the European Commission, in decision SA.55526, approved an amount of EUR 167 million of State aid for the construction and operation of a liquefied natural gas [LNG] terminal close to Alexandroupolis in northern Greece. In December 2022, Greece notified a measure involving additional State aid of EUR 106 million for the same project. The Commission authorised […]

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14. Mai 2024 | State Aid Uncovered von Phedon Nicolaides

Restructuring State Aid

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Introduction State aid to failing undertakings is the most distortionary form of public subsidies. They prevent the market exit of inefficient companies. For this reason, State aid for rescue or restructuring of undertakings in difficulty must always be notified to the Commission which examines each case very carefully and allows this kind of aid only when, among other things, the […]

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2. Januar 2024 | State Aid Uncovered von Phedon Nicolaides

Selectivity

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Introduction On 14 December 2023, the Court of Justice, in its judgment in joined cases C-693/21 P and C-698/21 P, EDP España & Naturgy Energy Group v European Commission, faulted the Commission for failing to provide a sufficient explanation why a Spanish measure was selective in the meaning of Article 107(1) TFEU.1 According to the Court of Justice, the Commission […]

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27. Dezember 2023 | State Aid Uncovered von Phedon Nicolaides

The Consequence of the Tax Autonomy of Member States

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Introduction The favourable tax treatment of multinational companies has long been in the sights of the Commission. However, the recent judgments on Fiat [C‑885/19 P, Fiat v Commission] and Engie [C‑454/21 P, Engie v Commission] have made it clear that Commission may not rely on principles which are not recognised in the tax laws of Member States. This fundamental rule […]

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21. Dezember 2023 | State Aid Uncovered von Phedon Nicolaides

Recovery of Incompatible Aid in an Agreement between an Airport and an Airline

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Introduction On 23 November 2023, the Court of Justice, in case C-758/21 P, Ryanair v European Commission, rejected Ryanair’s action against the judgment of the General Court in case T-448/18, Ryanair v European Commission.1 In its judgment, the General Court dismissed Ryanair’s appeal against Commission decision 2018/628. In that decision, the Commission found, among other things, that Austria had granted […]

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19. Dezember 2023 | State Aid Uncovered von Phedon Nicolaides

Indirect Advantage

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Introduction It is an established principle in the State aid case law that Article 107(1) TFEU applies both to direct and possibly indirect aid beneficiaries. Yet, it is not always easy to identify any indirect beneficiaries. On 15 November 2023, the General Court, in case T-167/21, European Gaming and Betting Association v European Commission, faulted the latter for failing to […]

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11. Dezember 2023 | State Aid Uncovered von Phedon Nicolaides

Member States Have Discretion to Determine their Own Tax System and Interpret its Provisions

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Introduction In the landmark cases on turnover taxes implemented by Hungary and Poland, the Court of Justice censured the European Commission for defining its own hypothetical reference tax system that was different from the relevant tax provisions in those two countries. The Court again faulted the Commission in its more recent judgments on advance tax rulings. Given the discretion of […]

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4. Dezember 2023 | State Aid Uncovered von Phedon Nicolaides

The Concept of Undertaking and Land Valuation

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Introduction Must an entity that acquires an asset but does not exploit it commercially not be regarded as an undertaking? This was one of two questions that the Court of Justice had to answer on 19 October 2023, in case C-325/22, TS & HI. The answer was no. The second question was how to value land. The answer to that […]

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27. November 2023 | State Aid Uncovered von Phedon Nicolaides

Compensation for Damage Caused by COVID-19 May be Limited to the Undertakings that Are Most Important to the Economy of a Member Stat

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Introduction On 23 November 2023, Ryanair lost another appeal before the Court of Justice. The Court ruled, in case C-210/21 P, Ryanair v Commission, that the General Court was right to dismiss Ryanair’s request for annulment of a Commission decision that had authorised French aid to compensate airlines for the damage they suffered as a result of the covid-19-related travel […]

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20. November 2023 | State Aid Uncovered von Phedon Nicolaides

State Guarantees

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Introduction Public authorities often grant guarantees to undertakings so that the latter can borrow commercial loans at lower rates of interest. The 2008 Commission Notice on guarantees sets out four cumulative conditions that create a presumption that a state guarantee is free of State aid: 1. The borrower is not in financial difficulty. 2. The guarantee must be linked to […]

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14. November 2023 | State Aid Uncovered von 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 von 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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